20 - Approval of Proposed Residential Solid Waste Collection & Recycling Contract — Newport Beach City Council, January 11, 2022 (part 1 of 4)

Q SEW Pp�T

CITY OF
z NEWPORT BEACH
c�<,FORN'P City Council Staff Report
January 11, 2022
Agenda Item No. 20
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311, [email protected]
PREPARED BY: Micah Martin, Deputy Public Works Director, [email protected]
PHONE: 949-644-3059
TITLE: Approval of Proposed Residential Solid Waste Collection & Recycling Contract with CR&R Inc.

ABSTRACT:

The City of Newport Beach (City) currently has two residential solid waste hauling contracts with CR&R Inc. (CR&R). The first contract is known as the City Contract (C-5649), encompassing a majority of the community, with the exception of Newport Coast and Santa Ana Heights, which receives residential refuse service from the Costa Mesa Sanitary District. The second contract is known as the Newport Coast Contract (C-3942), which came with the annexation of the Newport Coast area from Orange County in 2001, and was amended in 2007. Both of the City's residential solid waste hauling contracts with CR&R have been in place for many years and would terminate on the date the new contract goes into effect, which is January 15, 2022, should the City Council approve the new contract.

The City's residential waste collection program must be modified in order to comply with recent changes in State of California (State) law associated with the collection, processing, and disposal of solid waste. Per these requirements, the residential solid waste collection program must include a three -cart, source -separated, collection program for solid waste, mixed recyclables, and organic waste recycling, defined as food waste and landscaping waste items, by January 2022. Therefore, staff is requesting City Council approval of a Residential Solid Waste Collection & Recycling Contract with CR&R that reflects the new, State -mandated program components and consolidates the City and Newport Coast Contracts under one agreement.

RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Approve a new Residential Solid Waste Collection & Recycling Contract with CR&R to replace the two existing contracts (C-5649 & C-3942), beginning on January 15, 2022, at an initial monthly rate of $24.08 per residential household (paid by the City) and a contract term of eight years with two optional one-year contract extensions. 20-1

Approval of Proposed Residential Solid Waste Collection and Recycling Contract with CR&R Inc.

January 11, 2022

Page 2 ends

DISCUSSION:

Background
State Assembly Bill 939 passed in 1989 and requires the City to divert at least 50 percent of its waste away from the landfills or face monetary penalties of up to $10,000 per day.

More recent legislation, including Senate Bill 1383, now requires cities to provide residential organic waste recycling services, which include programs to collect and divert food scraps and landscaping waste away from landfills.

There are currently two primary solid waste hauling contracts for the residential areas within the City, both of which are serviced by CR&R. The main City Contract that provides trash and recycling collection service for over 20,000 households has been in place since November 2013, when CR&R was selected after a competitive procurement process to take over the formerly City -operated residential refuse collection operation. The Newport Coast Contract, which provides trash and recycling service to over 4,000 households, has been in place since 2007. CR&R currently receives compensation from the City for residential collection in the amount of approximately $5 million per year (a per household monthly cost equivalent to approximately $13.63 for the Newport Coast Contract and $15.55 for the City Contract). As identified under Section 6.04.140 of the Newport Beach Municipal Code, and associated with prior past practices, residents have not been charged any amount for residential refuse collection service. Residents served under the City Contract have paid a fee for required recycling services, but residents served under the Newport Coast Contract have not. The net contracted cost for residential refuse service is paid for out of the City's General Fund.

On November 24, 2020, the City Council was briefed on the new and pending State requirements, as well as the status of preliminary contract negotiations with CR&R. The City Council then directed staff to extend CR&R's current City Residential Solid Waste Contract (C-5649) to a new expiration date of October 1, 2021, and continue negotiations with the intent to consolidate both current contracts (City and Newport Coast) into a new, citywide Residential Solid Waste Collection & Recycling Contract that incorporates the necessary means and methods to cost effectively and efficiently achieve compliance with current and pending State mandates, laws and regulations. Staff completed the extension of the City Residential Solid Waste Contract (C-5649), resulting in both residential refuse contracts to conclude on October 1, 2021. These contracts were subsequently extended until January 1, 2022, and then again by the City to January 31, 2022, in order to complete the contract negotiation process.

After preliminary contract terms and cost negotiations were completed, the City's consultant, EcoNomics, and staff presented the two CR&R proposed contract rate options to the City Council at its January 26, 2021 meeting. The proposal included the following two rate options:

Option One — Fixed per household rate with annual CPI adjustments This proposal was for a fixed (City paid) monthly per household rate of $24.08 with an annual CPI adjustment. The contract included an eight-year term with two, one-year extension options. This option was a fixed rate and did not require further contract negotiations.
20-2

Approval of Proposed Residential Solid Waste Collection and Recycling Contract with CR&R Inc.

January 11, 2022

Page 3 ends

Option Two — Initial lower fixed per household rate, with a reconciliation of true cost and corresponding adjustment to new fixed per household rate in year three, with annual CPI Adjustments
This proposal was an initial monthly per household rate of $22.69 with an annual 2% CPI adjustment for years 1 and 2, with reconciliation of the rate in year three. This option also included a monthly rate cap of $26.31 per household associated with the year three reconciliation process to provide a safeguard against unknown upward costs.

The City Council determined that Option Two had too many unknown variables associated with compliance, reconciliation of data and costs, and further negotiations that had more risk of a larger rate increase in years three through eight. Option One was found to be a fair, competitive, market price that is in close proximity to recently bid residential refuse rates of similar Orange County cities. The Council then directed staff to continue negotiating with CR&R to secure Option One pricing, and draft a new residential contract at an initial monthly rate of $24.08 per residential household, with annual CPI adjustments, and a contract term of eight years, with two, one-year extension options.

Should the City Council approve the new agreement, it will commence on January 15, 2022, and run until December 31, 2029, with the ability to obtain two, one-year contract extensions that would allow the contract to run through December 31, 2031.

Proposed Contract
The proposed contract includes improved program efficiency, which will reduce impacts to residents through the incorporation of new and improved collection and processing methods. Further, the contract will provide required organic waste collection and recycling cart services in addition to the mixed recyclable cart services for all residents, bringing the City's refuse program into compliance with State mandates. The new contract combines both the Newport Coast and City residential collection franchise areas into a single service area. Key features of the proposed contract are as follows:
• CR&R will change service collection days for approximately 14,000 residential units to optimize routes, reduce truck traffic, reduce emissions, and provide timely collection routes that do not extend into the evening hours. • CR&R will deliver a green -lidded organics recycling cart to every household in the City beginning January 31, 2022. This container, which will be collected weekly by CR&R, will accept co -collected landscaping and food waste, per State requirements. All residents will receive extensive outreach information prior to receiving the organics cart.
• CR&R will conduct door-to-door distribution of two -gallon kitchen pails to all households following distribution of the organics carts. Kitchen pails will include an organics recycling `welcome' toolkit describing to residents how to participate in the program.
20-3

Approval of Proposed Residential Solid Waste Collection and Recycling Contract with CR&R Inc.

January 11, 2022

Page 4 ends

• CR&R will produce a training video for residents, as well as social media content, that can be distributed via the City's social media channels to inform residents of the new programs.
• CR&R will maintain an average fleet age of seven years with no vehicles older than 10 years. The City will receive eight, brand new collection vehicles in 2022, including four split -body rear -load vehicles that will be able to service recycling and organics waste carts in a single -pass to reduce disruptions to space -constrained neighborhoods on Balboa Island and the Balboa Peninsula. CR&R will phase in 11 more new vehicles by 2024, effectively replacing its entire existing fleet with new vehicles.
• All vehicles will be equipped with collision avoidance technology to alert the drivers of adjacent pedestrians and cyclists. CR&R will continue to observe exclusion zones around schools in the morning and afternoon during which they will not operate their vehicles near these locations.
• CR&R will provide a dedicated customer service line for Newport Beach residents and has committed to a maximum 90 -second average customer hold time or it will face liquidated damages.
• Annual rate and fee adjustments will be limited to annual CPI inflation adjustments that will be capped at a 5% maximum each year.
• CR&R will replace all existing recycling and trash carts with newer carts by attrition to align color -coding with state -mandated color -coding requirements (new trash carts are granite with black lids, and new mixed recycling carts are granite with light - blue lids and decals, and new organics carts are granite with green lids and decals). • There will be two, full-time recycling coordinators employed by CR&R for 18 months to provide residential outreach and education on the new collection cart system, do's and don'ts of the recycling programs, and reduction of materials contamination per SB 1383 requirements, as well as to ensure full residential participation. There will be one full-time recycling coordinator employed by CR&R for the remainder of the contract term after the initial 18 -month transition process. • CR&R will provide up to five, free bulky item pick-ups (with up to five items each) per household per year at no charge to residents.
• The existing household hazardous waste, sharps, and e -waste collection programs will continue.
• CR&R will provide extensive auditing, monitoring, and reporting of contamination as required by State law.
• CR&R will continue to provide monthly lease payments to the City to operate the City's transfer station.
20-4

Approval of Proposed Residential Solid Waste Collection and Recycling Contract with CR&R Inc.

January 11, 2022

Page 5 ends

A high-level timeline for contract implementation is included below. An extensive outreach campaign to residents, that includes digital and print touchpoints, will accompany this timeline to ensure residents are aware of the changes to the City's solid waste and recycling collection program.
• January 11, 2022 — requested City Council approval of new contract • January 15, 2022 — contract effective start date
• February — March 2022 — CR&R to deliver organics recycling carts to all households
• April 1, 2022 — residents receive their first quarterly invoice from CR&R for any elected extra carts services (valet, extra bulky item pick-ups, non -containerized manual collection)
Volumes and Cart Sizes
This revised collection program will include the provision of up to 96 gallons of City paid for municipal solid waste (and appropriate desired cart(s) to accommodate this 96 -gallon volume), up to two, 96 -gallon recycling carts, and up to one, 96 -gallon organics cart at no charge to residents. There will be three differing cart sizes available to residents, 32 gallons, 64 gallons, and 96 gallons. Residents will be able to choose the cart sizes that will work best for their individual refuse and recycling management needs. Requests for additional carts, beyond the free levels provided for by the City, will result in small, direct charges by CR&R. After an assessment of the number of current carts per resident is completed, CR&R will send a notice to all residents prior to February 15, 2022 to notify them of impending charges if they have more than the standard number of carts as outlined above. Residents may request that CR&R pick up their additional carts prior to being charged. There will be a grace period during which time any charges for additional carts will be withheld by CR&R until April 1, 2022, to allow for residents to adjust to the new service provisions included in the contract. The contract includes the option for the City to extend the grace period for the additional cart charges at the City's sole expense beyond April 1, 2022, if the City Council determines that residents need more time to adjust to the new programs.

Sorting Requirements
The new contract will also require that all waste and recycling materials be resident -sorted and placed within the appropriate collection carts so as to further automate the collection process. If a resident fails to place waste items within the collection cart, CR&R's driver must exit the cab and clean up any waste items on the ground or spilling over the brim of the container. Non -containerized and/or overflowing waste carts not only reduce the driver's efficiency, but they also increase program costs, reduce recycling of waste, cause water quality and vector problems, and aesthetic and wind-blown trash issues. As such, the contract includes a `non -containerization' fee of $2.47 for the second and subsequent instances of non -containerized materials over a six-month period to dissuade residents from overfilling their carts and to account for the loss of productivity from the driver. This fee was calculated based on the actual driver time needed to clean-up/pick-up non - containerized materials.
20-5

Approval of Proposed Residential Solid Waste Collection and Recycling Contract with CR&R Inc.

January 11, 2022

Page 6 ends

Extra Services
Currently, residents are allowed unlimited bulky item collection services at no charge.

This new contract would limit free bulky item collections to five pick-ups (with up to five items each) per household per year. CR&R will charge the resident for the sixth and subsequent bulky item collections.

Door-to-door collection services for household hazardous waste will continue to be unlimited.

An additional auxiliary service that will be available to residents for a fee will be standard and premium valet services. Valet services, in space constrained areas of the city utilizing rear -loaded collection vehicles, will be considered standard if collection personnel have to move carts less than 15 feet from where the truck is stationed for service. This would apply typically where the cart is placed at the side of the house or behind a gate. In automated, side -load collection areas, anytime a driver has to dismount from the cab of the truck to service a cart that is not placed out by the curb, and is within 15 feet from where the truck is stationed, it will be considered standard valet service. CR&R has identified 9,967 households currently with standard valet service.

There will also be a premium valet service available to residents. This type of service is considered premium if a customer requests service of a cart greater than 15 feet from where the truck is stationed for service. This level of service is intended for customers that want carts moved from the garage, back yard or side yard, and the driver has to leave the cab to provide service. This service is more likely to be provided in the less constrained areas. CR&R has identified 29 households currently with premium valet service. The new contract will continue to provide valet service to disabled residents at no charge.

In total, per the proposed new contract, CR&R will direct bill residents quarterly for the following extra services:

EXTRA SERVICE

AMOUNT CHARGED

PER MONTH
Extra Black Lid Trash Cart
$6.09
Extra Blue Lid Recycling Cart (third+ cart)
$3.41
Extra Green Lid Organics Cart
$4.11
Standard Valet Service
$8.30
Premium Valet Service
$27.68
Non -containerized manual collection (charged for second and subsequent offense(s) in a six-month period)
$2.47
Extra Bulky Item Pick-up u to five items
$13.95
20-6

Approval of Proposed Residential Solid Waste Collection and Recycling Contract with CR&R Inc.

January 11, 2022

Page 7 ends

Contract Compliance
Strict compliance language was added to the new contract to further ensure contracted services levels, state requirements, and City expectations are met. These measures include clear language related to SB 1383 reporting requirements, improved education and outreach requirements, and liquidated damages for 55 specific instances of contractor non-performance. The list of categories for potential liquidated damages includes collection reliability, collection quality, responsiveness to customer, timeliness of report submission to the City, billing accuracy, required personnel, vehicles and equipment maintenance, and compliance and reporting audits as required by the State.

Examples of the liquidated damages in the new contract include damages for non - collection of residents' carts, damages for failure to clean up waste, damages for failure to respond to a customer complaint within a timely manner, etc. The new contract also requires the contractor to distribute annual brochures to include images of carts, the kitchen pail, acceptable/unacceptable materials, special service information, information on how to use the kitchen pail program, use of compostable bags, a toll-free number, a link to the website, a link to a how-to video, extra cart charge information, containerization requirements, information on how to participate in special services (bulky items, sharps, e -waste, u -waste), information on the do's and don'ts of the organics program, information on different cart options, legislative requirements, etc.

Recycling and Organics Cart Distribution and Outreach
Under the current City contract, the use of mixed dry recyclable carts is voluntary (with over 75% on household currently participating). Under the new contract, resident sorting and use of mixed dry recyclable carts will be a mandatory requirement to comply with State law. To prepare for this change, mixed dry recyclable carts were recently distributed in October 2021 to the approximately 6,700 households that did not already have them.

SB 1383 requires that the new organics collection and recycling program be underway in January 2022. The City and CR&R have been working and planning to implement this program, with the new organics carts scheduled to be distributed to all households over an eight -to -ten week period starting January 31, 2022. Additionally, the door-to-door distribution of the organics program kitchen pail will occur following the organics cart roll- out. It is anticipated that the roll-out of the organics carts and pails will be completed by mid-April. In preparation for this roll-out, the City and CR&R have been providing information to residents to apprise and educate them of the new program. This has included frequent advisories and discussion at various City Council, Town Hall, HOA, and other community meetings; the introduction of eight displays throughout the city of the three carts and the kitchen pail with educational materials in December 2021; a mailer to all city residents introducing the program in December 2021; introductory information on the program in the Newport Navigator in November 2021; an in-depth program guide available at various locations in the city in December 2021 as well as mailed to all residents in mid-January 2022; and a letter alerting all residents to route changes in mid-January 2022. In addition, the City website was updated to include in-depth information on the recycling programs in December 2021. 20-7

Approval of Proposed Residential Solid Waste Collection and Recycling Contract with CR&R Inc.

January 11, 2022

Page 8 ends

Starting in November 2021, NBTV has included videos introducing and providing in-depth information on the program. Starting in December 2021, the City has also implemented a comprehensive recycling outreach communication program through its social media channels, including Facebook, Twitter and Instagram. All of the communications, including website updates, NBTV videos, and social media are on-going and will continue to occur to keep residents updated and to encourage participation in the recycling programs.

Program Costs
The current City Contract (C-5649), contains a monthly rate of $13.63 per household, and the current Newport Coast Contract (C-3942) contains a monthly rate of $15.55 per household for residential waste collection and recycling services. This results in a combined monthly cost of $413,039, and a combined annual cost of $4,956,471.

Under the proposed, new contract, the City Contract and the Newport Coast Contract have been consolidated into one, Residential Solid Waste Collection & Recycling Contract agreement with CR&R that incorporates the new programs, with a monthly rate of $24.08 per household. This results in a monthly cost of $651,083, and an annual cost of $7,813,005. This would result in an initial increase to the City's total annual residential waste collection and recycling services cost of approximately $2.9 million and would include implementation of a source -separated refuse, recycling and organic collection program that meets State mandates.

Staff is now requesting City Council approval of the proposed new residential contract with CR&R to replace the two existing Residential Solid Waste Collection & Recycling Contracts, beginning on January 15, 2022, at an initial monthly cost of $651,083 (or approximately $24.08 per residential household) and a contract term of eight years with two, one-year contract extensions.

Changes to Collection and Street Sweeping Days
If the new contract is approved, some residents will have their refuse and recycling collection day adjusted beginning in February 2022. The proposed collection day route changes are necessary to provide for the expanded recycling programs as well as provide collection service to residents in a more efficient and less disruptive manner. These changes will also help balance out loads to ensure all routes can be collected on time, increase safety by reducing the number of truck trips and the daily number of miles traveled by collection trucks, further avoid high traffic and congested areas, as well as reduce noise and truck emissions. Residents affected by the changes will be notified by the City and CR&R.

Further, as it is good practice to try to have the street sweeping day follow the refuse collection day, the changes in refuse collection days will also warrant some changes in the current street sweeping days. The street sweeping day changes, including changes to posted "No -Parking for Street Sweeping" will begin in late February after the refuse route changes have been made. The proposed street sweeping route changes are also included on the City Council's January 11, 2021 agenda.

Approval of Proposed Residential Solid Waste Collection and Recycling Contract with CR&R Inc.

January 11, 2022

Page 9 ends

FISCAL IMPACT:

The adopted budget includes sufficient funding for this contract. It will be expensed to the Residential Refuse Collection account in the Public Works Department, 0108051-851006.

In anticipation of this contract amendment, staff budgeted for the increased costs during the FY 2021-22 budget process.

As noted above, the initial increase to the City's residential waste collection and recycling services will be approximately $2.9 million per year. This increased cost for service will be partially offset by the $1,361,000 increase in annual revenue associated with the updating of the City's Recycle Fee approved in March 2021. Considering this, the portion of the annual General Fund program cost increase that will not be offset by additional revenue is estimated to be approximately $1,513,680, increasing by CPI in future years.

ENVIRONMENTAL REVIEW:

Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.

NOTICING:

This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Additionally, various announcements and public information outreach effort on this item have occurred as well as the City Council had significant discussions on this proposed new contract at their regular meetings on November 24, 2020 and January 26, 2021, to which City Council directed staff to prepare a new contract with CR&R to replace their two existing contracts.

ATTACHMENT:

Attachment A — Residential Solid Waste Collection & Recycling Contract 20-9

ATTACHMENT A

AGREEMENT FOR THE COLLECTION, TRANSPORTATION, PROCESSING AND

DIVERSION OF RESIDENTIAL RECYCLABLE MATERIALS, FOOD SCRAPS,

GREEN WASTE AND COLLECTION, TRANSPORTATION AND DISPOSAL OF

MUNICIPAL SOLID WASTE

BETWEEN

THE CITY OF NEWPORT BEACH
AND

CR&R, INCORPORATED
2022
20-10

This Page is
Intentionally left Blank
20-11

Table of Contents
ARTICLE 1: DEFINITIONS................................................................................................................12

1.01 Definitions.....................................................................................................................12 ARTICLE 2: REPRESENTATIONS AND WARRANTIES OF CONTRACTOR ...........................13

2.01 Legal Status...................................................................................................................13

2.02 Authority.......................................................................................................................13

2.03 Agreement Duly Executed..............................................................................................13

2.04 No Conflict with Applicable Law or Other Documents....................................................13

2.05 No Litigation..................................................................................................................13

2.06 Financial Condition........................................................................................................14

2.07 Expertise........................................................................................................................14

2.08 Contractor's Investigation..............................................................................................14 ARTICLE 3: TERM OF AGREEMENT..............................................................................................15

3.01 Effective Date................................................................................................................15

3.02 Term..............................................................................................................................15

3.03 Opportunity for Contractor to Earn Extensions of Term.................................................15

3.04 Conditions to Effectiveness of Agreement......................................................................15

3.04.A Obligation of City to Perform........................................................................................................................................15

3.04.A.1 Accuracy of Representations.....................................................................................................................................15

3.04.A.2 Absence of Litigation....................................................................................................................................................15

3.04.A.3 Furnishing of Bond and Guaranty...........................................................................................................................16

3.04.A.4 Furnishing of Evidence of Insurance.....................................................................................................................16

3.04.13 Obligation of Contractor to Perform.........................................................................................................................16

3.04.13.1 Absence of Litigation....................................................................................................................................................16

3.04.0 Notice...........................................................................................................................................................................................16 ARTICLE 4: COLLECTION OF RESIDENTIAL RECYCLABLE MATERIALS, FOOD SCRAPS/GREEN WASTE, MUNICIPAL SOLID WASTE AND OTHER MATERIALS.............18 20-12

4.01 Scope of Work — General...............................................................................................18

4.02 Growth and Changes in City...........................................................................................19

4.03 Implementation Plan.....................................................................................................19

4.04 Residential MSW Collection...........................................................................................20

4.05 Residential Recyclable Materials and Food Scraps/Green Waste Diversion Programs. ...21

4.06 Other Services and Special Services...............................................................................21

4.07 Hours of Collection........................................................................................................22

4.07.A Holidays.....................................................................................................................................................................................22

4.07.13 Coordination With Street Sweeping..........................................................................................................................23

4.07.0 Collection Near Schools.....................................................................................................................................................23

4.08 Collection Standards......................................................................................................23

4.08.A Care of Property....................................................................................................................................................................23

4.08.13 Noise............................................................................................................................................................................................24

4.08.0 Private and Public Streets...............................................................................................................................................24

4.08.1) Customer Privacy.................................................................................................................................................................26

4.09 Litter Abatement...........................................................................................................27

4.09.A Minimization of Spills........................................................................................................................................................27

4.09.13 Clean Up of Existing Litter...............................................................................................................................................27

4.09.0 Report of Accumulation of MSW, Other Materials and Unauthorized Dumping .............................28

4.09.1) Covering of Loads.................................................................................................................................................................28

4.10 Hazardous Waste...........................................................................................................29

4.10.A General.......................................................................................................................................................................................29

4.10.13 Notice to Customers............................................................................................................................................................30

4.10.0 Contractor to Segregate and Dispose........................................................................................................................30

4.10.1) Operating Procedures and Employee Training..................................................................................................31

4.10.E Hazardous Waste Diversion Records........................................................................................................................31

4.11 City's Right to Change Scope of Work.............................................................................31

4.12 Attendance At Meetings With City.................................................................................32

4.13 Ownership of Municipal Solid Waste and Recyclable Materials......................................33

4.14 Roll Off Boxes at City Yard and Transfer Station.............................................................34

4.15 Contamination Warning Notice......................................................................................34

4.16 Proposals For New, Enhanced or Expanded Diversion Programs....................................34 -2-
20-13

ARTICLE 5: TRANSPORTATION AND DISPOSAL OF MSW OR PROCESSING OF RECYCLABLE MATERIALS............................................................................................................... 36

5.01 Transportation and Disposal of MSW.............................................................................36

5.02 Transportation of Single Stream Recyclable Materials and Single Material Recyclable Materials...............................................................................................................................38

5.03 Transportation of Co -Collected Food Scraps/Green Waste.............................................38

5.04 City Right to Unilaterally Direct Change in Processing Facility........................................39

5.05 Designated Processing Facilities Unavailable..................................................................39

5.06 Contractor Request for Change of Processing Facility.....................................................40 ARTICLE 6: PROCESSING AND MARKETING OF RECYCLABLE MATERIALS ..................... 43

6.01 General..........................................................................................................................43

6.02 Permits..........................................................................................................................43

6.03 Delivery of Residue to Landfill........................................................................................43

6.04 Clean MRF and Compost Facility Operating Requirements.............................................43

6.05 Use of Biomass or Transformation Facilities Prohibited..................................................45

6.06 Contractor Incentive/Possible Extension(s) of Agreement..............................................45

6.06.A Phase 1 Extension Incentive..........................................................................................................................................45

6.06.13 Phase 2 Extension Incentive..........................................................................................................................................46

6.06.0 Failure to Meet Phase 1 or Phase 2 Extension Requirements....................................................................46

6.06.1) Notice of Extension or Failure to Earn Extension..............................................................................................47

6.07 Marketing of Recovered Materials, Compost and Other Products..................................47

6.08 Limits on Modes of Disposition......................................................................................47

6.09 City Access to Processing Facilities.................................................................................48 ARTICLE 7: EQUIPMENT, FACILITIES AND PERSONNEL........................................................ 49

7.01 General..........................................................................................................................49

7.02 Facilities........................................................................................................................49

7.02.A General.......................................................................................................................................................................................49 -3-
20-14

7.03 Vehicles..................................................................................................................... 49 7.03.A General.......................................................................................................................................................................................49

7.03.13 Alternative Fuel Vehicles/Use of City Fueling Station.................................................................................... 51 7.03.0 Vehicle Identification.........................................................................................................................................................52

7.03.1) Cleaning and Maintenance.............................................................................................................................................52

7.03.D.1 General................................................................................................................................................................................52

7.03.D.2 Cleaning..............................................................................................................................................................................53

7.03.D.3 Painting...............................................................................................................................................................................53

7.03.D.4 Maintenance.....................................................................................................................................................................54

7.03.D.5 Repairs................................................................................................................................................................................54

7.03.D.6 Storage................................................................................................................................................................................54

7.03.D.7 Leaking Vehicles.............................................................................................................................................................55

7.03.D.8 DMV Registration/BIT Inspections/Brake Inspections................................................................................55

7.03.E Operation..................................................................................................................................................................................56

7.03.17 Vehicle Mirrors.....................................................................................................................................................................57

7.03.G Collision Avoidance System...........................................................................................................................................57

7.03.H Other Required Vehicle Technological Capabilities........................................................................................58

7.04 MSW, Recyclable Materials and Food Scrap/Green Waste Carts.................................61

7.04.A General.......................................................................................................................................................................................61

7.04.13 Cart Ownership.....................................................................................................................................................................61

7.04.0 Cart Distribution...................................................................................................................................................................61

7.04.1) Repair, Replacement, and Exchange.........................................................................................................................62

7.04.E Cleaning and Maintenance of Contractor -Furnished Carts..........................................................................62

7.05 Personnel...................................................................................................................63

7.05.A General.......................................................................................................................................................................................63

7.05.13 Driver Qualifications..........................................................................................................................................................64

7.05.0 Uniforms....................................................................................................................................................................................64

7.05.1) Written Operating Procedures....................................................................................................................................64

7.05.E Safety Training.......................................................................................................................................................................65

7.05.17 No Gratuities............................................................................................................................................................................66

7.05.G Employee Conduct and Courtesy.................................................................................................................................66

7.05.H Provision of Two Recycling/Public Education Coordinators.....................................................................67

7.05.H.1 Recycling Coordinator Experience, Background and Training..................................................................67

7.05.H.2 Documentation of Recycling Coordinator Training........................................................................................68

7.05.H.3 Deadline for Providing Two (2) Fully Trained Recycling Coordinators................................................69

7.05.I Provision of Operations and Customer Liaison to City....................................................................................70

7.05.J Initial Hiring.............................................................................................................................................................................72

7.05.K Ongoing Training and Testing......................................................................................................................................72

7.05.L Use of Workers Not Employed by Contractor......................................................................................................73

7.05.M Provision of Senior Manager(s) Responsible For Development and Marketing of Compost andCompost Products.....................................................................................................................................................................74

7.05.N Provision of Dedicated Route Supervisor..............................................................................................................74 ARTICLE 8: OTHER COLLECTION -RELATED SERVICES.......................................................... 75

8.01 Billing............................................................................................................................75

8.01.A General.......................................................................................................................................................................................75

8.01.13 Content for City Mailings.................................................................................................................................................75

8.01.0 Delinquent Accounts.......................................................................................................................................................... 75 in
20-15

8.02 Billing Records...............................................................................................................76

8.03 City Access to Billing Information...................................................................................76

8.04 Public/Customer Service and Accessibility.....................................................................76

8.04.A Office Hours and Location...............................................................................................................................................76

8.04.13 Availability of Representative......................................................................................................................................76

8.04.0 Telephone................................................................................................................................................................................. 77

8.04.C.1 Call Center and Staffing................................................................................................................................................77

8.04.C.2 Call Answering, Telephone System Capabilities and Customer Service.................................................78

8.04.C.3 Additional Call Center Personnel During Food Scrap/Green Waste Program Rollout, Re-routing of City and New Charges to Customers...................................................................................................................................81

8.04.C.4 Potential Future Surges in Telephone Volumes In The Event of Additional Program Rollout(s) orMajor Service Changes.............................................................................................................................................................83

8.04.C.5 Regular and Emergency Telephone Numbers..................................................................................................84

8.04.1) Correspondence....................................................................................................................................................................85

8.04.E Electronic Subscription for Basic Service, Extra Services and Payment of Bills for Extra Services..................................................................................................................................................................................................... 85

8.04.17 Maps, Schedules, Consumer Information...............................................................................................................85

8.04.G Website......................................................................................................................................................................................86

8.05 Service Complaints........................................................................................................87

8.06 Customer Service Surveys..............................................................................................89 ARTICLE 9: RECORD KEEPING, REPORTING, INSPECTIONS AND AUDITS ....................... 90

9.01 General..........................................................................................................................90

9.02 Record Keeping..............................................................................................................90

9.03 Reporting.......................................................................................................................91

9.03.A Reports Listed in Attachment K...................................................................................................................................91

9.03.13 Reports Listed in Attachment N...................................................................................................................................91

9.04 Inspection by City..........................................................................................................91

9.05 Compliance Reporting....................................................................................................93

9.05.A Material Discrepancy in Data Reported..................................................................................................................94

9.06 Annual Route Audit.......................................................................................................95

9.07 Characterization Studies and In -Field Container Contamination Audits ..........................96

9.07.A Characterization Studies.................................................................................................................................................96

9.07.13 In -Field Container Contamination Audits..............................................................................................................97

9.08 Annual City Review of Contract Audits and Results........................................................97

9.09 Reporting of Adverse Information..................................................................................98 -5-
20-16

ARTICLE 10: INDEPENDENT CONTRACTOR.............................................................................. 99

10.01 Contractor an Independent Contractor........................................................................99

10.02 No Partnership or Joint Venture Created......................................................................99

10.03 No Entitlement to City Benefits....................................................................................99 ARTICLE 11. INDEMNITY, INSURANCE, BOND........................................................................101

11.01 General Indemnification............................................................................................101

11.02 Insurance...................................................................................................................102

11.02.A Types and Amounts of Coverage...........................................................................................................................102

11.02.A.1 Workers' Compensation and Employer's Liability....................................................................................103

11.02.A.2 Comprehensive General Liability (and Automobile Liability)..............................................................103

11.02.A.3 Pollution Liability.....................................................................................................................................................104

11.02.A.4 Physical Damage.......................................................................................................................................................105

11.02.13 Acceptability of Insureds...........................................................................................................................................105

11.02.0 Required Endorsements.............................................................................................................................................105

11.02.1) Delivery of Proof of Coverage.................................................................................................................................107

11.02.E Other Insurance Requirements..............................................................................................................................108

11.03 Faithful Performance Bond........................................................................................109

11.04 Alternative Security...................................................................................................110

11.05 Hazardous Waste Indemnification.............................................................................110

11.06 Integrated Waste Management Act Indemnification ..................................................114

11.07 Intellectual Property Indemnification.........................................................................115

11.08. Notice of Claim.........................................................................................................115 ARTICLE 12: COMPENSATION TO CONTRACTOR..................................................................116

12.01 General......................................................................................................................116

12.02 Initial Costs................................................................................................................116

12.03 Annual Adjustments to City Payments to Contractor and to Prices Contractor May Charge Via Direct Bill to Customers.....................................................................................119

12.04 Disposal Charge (Tip Fee) Adjustments......................................................................119

12.05 Adjustments to Costs Based on City -Directed Changes In Scope of Work...................120 so
20-17

12.06 Contractor Invoicing and Payment.............................................................................121

12.07 Additional Residences Added During the Term ..........................................................122

12.07.A Neighborhoods Served by Third Party.............................................................................................................122

12.07.B Residences Constructed on Vacant Land or Lots During the Term...................................................123 ARTICLE 13: DEFAULT AND REMEDIES....................................................................................126

13.01 Events of Default.......................................................................................................126

13.02 Right to Suspend or Terminate Upon Default.............................................................130

13.03 Specific Performance.................................................................................................131

13.04 Use of Contractor Property Upon Default..................................................................131

13.05 Right to Perform........................................................................................................132

13.06 Payment for Use of Contractor's Property..................................................................132

13.07 Damages....................................................................................................................133

13.08 City's Remedies Cumulative.......................................................................................133

13.09 Liquidated Damages..................................................................................................133

13.10 City Default................................................................................................................142

13.11 Notice to City of Any Potential Labor Strike or Stoppage............................................143 ARTICLE 14: OTHER AGREEMENTS OF THE PARTIES ..........................................................144

14.01 Permits, Licenses, Compliance with Law; Non-Discrimination....................................144

14.02 Assignment................................................................................................................144

14.02.A City Consent Required.................................................................................................................................................145

14.02.B Assignment Defined......................................................................................................................................................145

14.02.0 Consent Requirements................................................................................................................................................146

14.03 Subcontracting...........................................................................................................147

14.04 No Affiliated Entity....................................................................................................147

14.05 Contractor's Investigation..........................................................................................147

14.06 Notice........................................................................................................................148 -7-
20-18

14.07 Representatives of the Parties...................................................................................148

14.07.A Representatives of City...............................................................................................................................................148

14.07.13 Representatives of Contractor................................................................................................................................149

14.08 Right to Inspect Contractor Operations......................................................................149

14.09 Maintenance and Review of Records, Submission of Reports.....................................149

14.10 Right to Demand Assurances of Performance.............................................................150

14.11 Designation as City's Recycling Agent.........................................................................150

14.12 Force Majeure...........................................................................................................150

14.12.A Force Majeure...................................................................................................................................................................151

14.12.13 Obligation to Restore Ability to Perform and Notifications..................................................................151

14.12.0 Notice.....................................................................................................................................................................................152

14.12.1) City's Rights in the Event of Force Majeure.....................................................................................................152

14.13 Cooperation During Transition...................................................................................153

14.14 No Damages for Invalidation of Agreement...............................................................154

14.15 Diversion Programs Not Restricted............................................................................155

14.16 Reports as Public Records..........................................................................................155

14.17 Cooperation...............................................................................................................155

14.18 City Policy..................................................................................................................155

14.19 City's Transfer Station................................................................................................155

14.20 Compliance With Immigration Laws..........................................................................156

14.21 Time of Performance.................................................................................................156

14.22 Conflicts of Interest...................................................................................................157

14.23 Final Resolution of Customer Complaints Concerning Contractor..............................157 ARTICLE 15: MISCELLANEOUS PROVISIONS...........................................................................159

15.01 Governing Law...........................................................................................................159

15.02 Jurisdiction................................................................................................................159

15.03 Binding on Successors................................................................................................159 in
20-19

15.04 Parties in Interest......................................................................................................159

15.05 Waiver.......................................................................................................................159

15.06 Attachments..............................................................................................................160

15.07 Entire Agreement.......................................................................................................160

15.08 Section Headings.......................................................................................................160

15.09 Interpretation............................................................................................................160

15.10 Amendment...............................................................................................................160

15.11 Severability................................................................................................................160

15.12 No Attorney's Fees or Costs.......................................................................................161

15.13 References to Laws....................................................................................................161

15.14 City's Municipal Code.................................................................................................161

15.15 Agreement to Provide Services..................................................................................161

15.16 Non-Discrimination....................................................................................................165

15.17 Guaranty....................................................................................................................165 in
20-20

AGREEMENT FOR THE COLLECTION, TRANSPORTATION, PROCESSING AND

DIVERSION OF RESIDENTIAL RECYCLABLE MATERIALS, FOOD SCRAPS,

GREEN WASTE AND OTHER MATERIALS AND FOR THE COLLECTION,

TRANSPORTATION AND DISPOSAL OF RESIDENTIAL MUNICIPAL SOLID WASTE THIS AGREEMENT is entered into as of the day of 2022, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city organized and existing under the laws of the State of California (hereinafter referred to as "City") and CR&R, Incorporated, a California corporation (hereinafter referred to as "Contractor")
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, and for other good and valuable consideration, the parties agree as follows:
-10-
20-21

AGREEMENT
-11-
20-22

ARTICLE 1: DEFINITIONS

1.01 Definitions. Unless otherwise defined in this Agreement, capitalized terms used in this Agreement shall have the meanings set forth in the definitions contained in Attachment A.
-12-
20-23

ARTICLE 2: REPRESENTATIONS AND WARRANTIES OF

CONTRACTOR

2.01 Legal Status. Contractor is a corporation duly organized, validly existing and in good standing under the laws of the State of California, and is qualified to do business in the State of California.

2.02 Authority. Contractor has the authority to enter into and perform its obligations under this Agreement. Contractor has taken all actions required by law, or otherwise to authorize the execution of this Agreement.

2.03 Agreement Duly Executed. The Persons signing this Agreement on behalf of Contractor have been authorized to do so, and this Agreement constitutes a legal, valid and binding obligation of Contractor.

2.04 No Conflict with Applicable Law or Other Documents. Neither the execution and delivery by Contractor of this Agreement, nor the performance by Contractor of its obligations hereunder: (i) conflicts with, violates, or will result in a violation of any existing applicable law; or (ii) conflicts with, violates, or will result in a breach or default under any term or condition of any existing judgment, order or decree of any court, administrative agency or other governmental authority, or of any existing contract or instrument to which Contractor is a party, or by which Contractor is bound.

2.05 No Litigation. There is no action, suit, proceeding, or investigation at law or in equity, before or by any court or governmental entity, pending or threatened against Contractor, or otherwise affecting Contractor, wherein an unfavorable decision, ruling, or finding, in any single case or in the aggregate, would materially adversely affect Contractor's performance hereunder, or which, in any way, would adversely affect the -13-
20-24

validity or enforceability of this Agreement, or which would have a material adverse effect on the financial condition of Contractor.

2.06 Financial Condition. Contractor represents and warrants that it has the financial resources and capability to perform all of the services and to meet all of the requirements in this Agreement. City has relied on this information in entering into this Agreement. All information provided to City by Contractor is complete and accurate, does not contain any material misstatement of fact and does not omit any fact necessary to prevent the information provided from being materially misleading.

2.07 Expertise. Contractor has the expertise and professional and technical capability to perform all of its obligations under this Agreement.

2.08 Contractor's Investigation. Prior to entering into this Agreement, Contractor provided many of the same services to City pursuant to a contract signed in 2013. In addition, Contractor has made an independent investigation and analysis, the results of which are satisfactory to Contractor, of the conditions and circumstances surrounding this Agreement, its content and preparation, and the work to be performed by Contractor under the Agreement. The Agreement accurately and fairly represents the intentions of Contractor, and Contractor enters into this Agreement on the basis of Contractor's previous work for City and Contractor's own independent investigation and analysis. -14-
20-25

ARTICLE 3: TERM OF AGREEMENT

3.01 Effective Date. The Effective Date of this Agreement shall be January 15, 2022.

3.02 Term. The Term of this Agreement shall commence on the Effective Date and shall end at midnight on December 31, 2029, unless earlier terminated. Contractor's obligation to collect Recyclable Materials, other materials, and Municipal Solid Waste shall begin on January 15, 2022 at 12:01 a.m.

3.03 Opportunity for Contractor to Earn Extensions of Term. The Term of this Agreement may be extended as described in Section 6.06. In no event shall this Agreement be extended beyond December 31, 2031.

3.04 Conditions to Effectiveness of Agreement.

3.04.A Obligation of City to Perform. The obligation of the City to perform under this Agreement is subject to satisfaction, on or before the Effective Date, of each of the conditions set out below, each of which may be waived in whole or in part by City:

3.04.A.1 Accuracy of Representations. The representations and warranties made by Contractor in Article 2 of this Agreement shall be true and correct on and as of the Effective Date.

3.04.A.2 Absence of Litigation. There shall be no litigation pending on the Effective Date in any court challenging the execution of this -15-
20-26

Agreement or seeking to restrain or enjoin Contractor's performance or ability to perform under this Agreement.

3.04.A.3 Furnishing of Bond and Guaranty. Contractor shall provide and maintain the performance bond required in Section

11.03 and the guaranty required in Section 15.16 of this Agreement.

3.04.A.4 Furnishing of Evidence of Insurance. Contractor has furnished satisfactory evidence of insurance required by Section

11.02 of this Agreement.

City may waive the satisfaction of the conditions described in Section 3.04.A.3 and 4, allow this Agreement to become effective, and exercise its rights and remedies under this Agreement for Contractor's failure to furnish the bond, the Guaranty, or the evidence of insurance.

3.04.13 Obligation of Contractor to Perform. The obligation of Contractor to perform under this Agreement is subject to the satisfaction on or before the Effective Date of the condition set forth below, each of which may be waived in whole or in part by Contractor.

3.04.13.1 Absence of Litigation. There shall be no litigation pending on the Effective Date in any court challenging the execution of this Agreement, or seeking to enjoin its performance.

3.04.0 Notice. If either party fails to satisfy a condition listed in this Article 3, it shall deliver written notice to the other party on or before the Effective Date. If -16-
20-27

either party wishes to assert that a condition for its benefit has not been satisfied and has not been waived, it must deliver written notice to that effect to the other party on the Effective Date. If no such notice is received, the Agreement will become effective on the Effective Date. Each party is obligated to perform in good faith the actions, if any, which this Agreement requires it to perform before the Effective Date and to cooperate towards the satisfaction of the conditions set forth above.
-17-
20-28

ARTICLE 4: COLLECTION OF RESIDENTIAL RECYCLABLE

MATERIALS, FOOD SCRAPS/GREEN WASTE, MUNICIPAL SOLID

WASTE AND OTHER MATERIALS

4.01 Scope of Work — General. Except as otherwise provided herein, Contractor shall (a) collect Municipal Solid Waste ("MSW') generated at individually serviced Residential Premises including single-family homes and homes located within Gated Developments, Homeowners Associations and Mobile Home Parks within the City and deliver it to the Disposal Site approved by City, and (b) collect Recyclable Materials, Food Scraps/Green Waste, and other materials specified in Attachment B placed for Collection by participating individually serviced Residential Customers, including single-family homes and homes located within Gated Developments, Homeowners Associations and Mobile Home Parks within the City and deliver each type of material to the Processing Facility designated by City for said material. Notwithstanding the foregoing, the City does not guarantee that any particular type or quantity of MSW, Recyclable Materials, Food Scraps, Green Waste or any other material will be available for Collection at any time during the Term of this Agreement. Contractor acknowledges and agrees that the City does not control the quantity, quality or composition of the waste stream generated in City, and cannot compel generators of Divertible materials to place those materials for Collection by Contractor (e.g. Customers may self -haul or arrange for collection of Divertible Materials by third parties in compliance with City ordinances and state law).

Contractor further acknowledges and agrees that future changes in laws, regulations, packaging, the economy, consumption of goods, and/or technology may affect the type and quantity of material that will be available for Collection by Contractor, and agrees that it will not be entitled to any cost increases, extensions of this Agreement (other than those 510
20-29

extensions described in Article 3), or other compensation of any kind due to such changes in the types and quantities of materials available for Collection.

The work to be done by Contractor includes the furnishing of all labor, supervision, equipment, materials, supplies, vehicles and equipment, storage and maintenance facilities, and all other items necessary to perform the services required under this Agreement in a thorough, workmanlike and efficient matter, so that Residents, within the City are provided reliable, courteous and high-quality services at all times. The enumeration of, and specification of, requirements for particular items of labor or equipment shall not relieve Contractor of the duty to furnish all others that may be required, whether enumerated or not.

Contractor shall perform all work in accordance with Attachment B, whether or not such provisions are specifically referred to in any other section of this Agreement.

4.02 Growth and Changes in City. In the event that any new residential dwellings are constructed in City during the Term, Contractor agrees that it shall not be entitled to an increase in compensation and shall provide all the services described in this Agreement to such new residential dwellings. The only change in Contractor's compensation for the addition of Residences to Contractor's service area shall be as provided in Section 12.07 of the Agreement.

4.03 Implementation Plan. The parties recognize that substantial planning and preparation will be required to ensure a successful initiation of Collection operations by Contractor on the Effective Date and to accomplish implementation of Recyclable Materials Collection and Food Scrap/Green Waste Collection at all Residences in City on -19-
20-30

or before the Effective Date. To that end, Contractor has prepared a detailed Implementation Plan addressing the steps Contractor will take, and the schedule on which it will take them, to prepare for, and accomplish, implementation of said Diversion programs. The Implementation Plan in Attachment C sets forth the obligations and schedule for rollout of the required Diversion programs.

Contractor shall diligently adhere to the Implementation Plan and shall meet periodically, whenever City requests, to review its progress. Failure to adhere to the Implementation Plan, including its schedule, shall constitute a material breach of this Agreement, which, if uncured, shall be subject to default as provided in Section 13.01.

The specific plans and other materials required to be submitted under the Implementation Plan are subject to City's review and approval. City will endeavor to take actions, make decisions, and provide directions to Contractor in accordance with the schedule and time allowances set forth in Attachment C, so as not to delay Contractor's adherence to the Implementation Plan schedule.

4.04 Residential MSW Collection.

Contractor shall collect all MSW generated at Residential Premises within the City that is placed for Collection in Contractor -provided Carts at curbside or in alleys (and at sideyard/backyard locations by Customers who request and pay the Extra Charges for valet service) as described in Section 2 of Attachment B. MSW shall be collected from -20-
20-31

such Premises at the frequencies and in the manner described in Section 2 of Attachment

4.05 Residential Recyclable Materials and Food Scraps/Green Waste Diversion Programs.

Contractor shall Collect all Recyclable Materials and co -collected Food Scraps/Green Waste generated at Residential Premises placed for Collection in Contractor -provided Carts at the curbside or in alleys. Contractor shall also collect Recyclable Materials and co -collected Food Scraps/Green Waste generated at Residential Premises, placed for Collection at backyard or side yard locations by Customers who request and pay the Extra Charges for Valet Service or who are disabled, pursuant to Section 1.4.6 of Attachment B. Recyclable Materials and co -collected Food Scraps/Green Waste shall be collected from Residential Premises at the frequencies and in the manner described in Attachment B, Sections 1 and 2.

4.06 Other Services and Special Services.

Contractor shall provide other services and special services as described in Section 3 of Attachment B that include, but are not limited to, the following:
• Bulky Item Collections
• Special Events Collections
• Holiday Greenery Collection and Recycling
• Door -to -Door Household Hazardous Waste Collection
• Community Shredding Events
-21-
20-32

• Sharps Collection
• Annual Mulch/Compost Giveaway
• Summer Saturday Collection Service

4.07 Hours of Collection. Collection of MSW, Recyclable Materials, Food Scraps/Green Waste and all other Collection operations may occur only within the hours authorized by the City. Contractor may not conduct Collection operations earlier than 7:00 a.m. local time or later than 7:00 p.m. The City Manager or his/her designee, if requested by Contractor, may grant temporary site and route -specific exceptions. At the sole discretion of the City Manager, Contractor shall adjust the early morning start point of Collection routes to address and minimize customer complaints when warranted.

4.07.A Holidays. No Collections shall occur on the following days: New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, and Sundays. If the regularly scheduled Collection day falls on one of the listed holidays, Collection days for the remainder of that week shall all be postponed one (1) Collection day. No Collections shall occur on Saturdays for Residential Premises subject to the following three (3) exceptions:
(1) Missed pick-up service;
(2) Changed Collection schedule due to a holiday; and
(3) for Summer Saturday service described in Attachment B, Section 3.7. -22-
20-33

4.07.8 Coordination With Street Sweeping. Contractor shall coordinate with the City Manager or his or her designee to ensure that the Collection of MSW, Recyclable Materials and Food Scraps/Green Waste is compatible with, and does not interfere with, City's street sweeping operations. In order to comply with this requirement, Contractor shall coordinate initial routing with the City to ensure Collection operations are compatible with the City's street sweeping schedule and the City's "No Parking" signage for street sweeping days. Any changes to Collection days for Residents after Contractor's initial routing of City shall be accomplished as described in Section 1.3 of Attachment B.

4.07.0 Collection Near Schools. Contractor shall not Collect Residential MSW, Recyclable Materials or Food Scraps/Green Waste from any Residential Premises located within five hundred (500) feet of a school or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00 p.m. and 3:00 p.m. Monday through Friday. The limitations in this Section 4.07.0 shall not apply to Contractor's operation of Collection vehicles on East and West Coast Highway, Jamboree Road, MacArthur Boulevard, San Joaquin Hills Road, Irvine Avenue, Balboa Boulevard and Newport Coast Drive.

4.08 Collection Standards.

4.08.A Care of Property. Contractor shall use due care when handling MSW, Recycling, and Food Scrap/Green Waste Carts. Carts shall not be thrown from trucks, -23-
20-34

roughly handled, damaged or broken. Carts shall be returned to the Collection point upright, with lids properly closed.

Contractor shall ensure that its employees close all gates opened by him/her in making Collections, unless otherwise directed by the Customer, and avoid crossing landscaped areas and climbing or jumping over flower beds, hedges, fences, and other building appurtenances.

City shall refer complaints about damage to private property, including common areas in common -area subdivisions, to Contractor. Contractor shall promptly and at its sole expense repair, or arrange for the repair of, all damage to private property caused by its employees, including but not limited to vehicles, overhangs, carports, streets, curbs, sidewalks, driveways and paved areas.

4.08.6 Noise. All Collection operations shall be conducted as quietly as possible and shall conform to City noise level regulations. The noise level during the stationary compaction process shall not exceed 75 decibels at a distance of 25 feet from the Collection vehicle measured at an elevation of five (5) feet above ground level. Contractor shall submit to City, upon City's request, a certificate of vehicle noise testing by an independent testing facility of a representative sample of Collection vehicles. The City may also conduct random checks of noise emission levels to ensure such compliance.

4.08.0 Private and Public Streets. Contractor shall use its best efforts to prevent damage to all streets over which its Collection equipment operates, and Contractor shall obtain all required approvals for operation of its Collection vehicles on private streets. In the event Contractor damages public streets to an extent that exceeds normal wear and -24-
20-35

tear (e.g. hits and damages a public curb, sidewalk, or driveway or creates a hole in the pavement that must be repaired) City will notify Contractor and Contractor shall be responsible for the City's cost of repairing the damage, which will be performed by City.

Contractor 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, Contractor 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. Contractor shall clean, at Contractor'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 the event of a spill of fuel and/or fluid, Contractor 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, Contractor 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, Contractor shall initiate and provide no less than monthly training of all Collection employees, route supervisors, dispatch personnel and all management employees in the proper handling of any spills to prevent such spills from entering storm 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 -25-
20-36

include a simulation of a spill with employees physically performing the appropriate actions and activities to contain spilled fluid(s), at least one (1) time each year. Contractor shall provide a quarterly report to City on the trainings held with each employee group including the topics covered, and the employees or third parties that provided each training, as further described in Section 9.03.

4.08.11) Customer Privacy. Contractor shall strictly observe and protect the rights of privacy of Customers. Information identifying the contents and composition of a Customer's MSW, Recyclable Materials or Food Scraps/Green Waste shall not be revealed to any Person, governmental unit, private agency or company, unless authorized by the Customer or by order of a court of law, or by statute. This provision shall not be construed to prohibit Contractor from:
(1) conducting and reporting to City the results of the Divertible Materials characterizations and on-site field container Contamination audits described in Attachment N;
(2) conducting, assisting with, or otherwise carrying out other MSW or Divertible Materials characterizations or audits that may be required by the Act or requested by City,
Article 9; or
(3) performing all of the characterizations and audits required pursuant to (4) providing information necessary for City to comply with the Act and to obtain information required for City to exercise its police powers. -26-
20-37

Contractor shall not market or distribute customer mailing lists to any party, with the sole exception that Contractor shall make available customer mailing lists to the City upon request.

Contractor shall dismiss or discipline employees who remove documents or any other material from Carts, other than specifically for the purposes of Collecting, Disposing of, and Diverting the materials as described in this Agreement.

4.09 Litter Abatement.

4.09.A Minimization of Spills. Contractor shall use due care to prevent MSW, Food Scraps/Green Waste and Recyclable Materials from being spilled or scattered during the Collection or transportation process. If any MSW, Food Scraps/Green Waste or Recyclable Material is spilled, Contractor shall promptly clean up all spilled materials whether on private or public property. Each Collection vehicle shall carry all industry - standard equipment for this purpose. Failure to clean up all spilled materials within two (2) hours of notification of the spill by a Customer or the City or any other Person shall result in the assessment of liquidated damages as described in Section 13.09.

Contractor shall not transfer loads from one vehicle to another on any public street or private roadway, unless it is necessary to do so because of mechanical failure or damage to a Collection vehicle that renders it inoperable and the vehicle cannot be towed.

4.09.13 Clean Up of Existing Litter. The Contractor shall clean up existing litter in the immediate vicinity of any MSW, Recyclable Materials, or Food Scraps Green Waste Collection area (including the areas on private and public property where Carts are placed for Collection) whether or not Contractor has caused the litter. Contractor shall notify the -27-
20-38

Customer and the City after the second occurrence of existing litter and shall send City a photograph of the littered area. City's Code Enforcement Officer and the Contractor's Recycling Coordinator will make an on-site inspection to discuss the situation with the Customer responsible for the property. If the litter and debris is being caused by illegal dumping, the City and Contractor's Recycling Coordinator will work with the Customer to prevent the illegal dumping or unauthorized use of Customer's Carts. If the cause of the litter is under -subscription to the Collection service, the City and Contractor's Recycling Coordinator and/or Route Supervisor will work with the Customer to determine the appropriate size Cart(s) required to alleviate the problem.

4.09.0 Report of Accumulation of MSW, Other Materials and Unauthorized Dumping. Contractor shall direct its drivers to note: (a) the addresses of any Premises at which they observe that MSW or other materials are accumulating and not being placed for Collection; and (b) the address, or other location description, at which MSW and/or other materials have been ostensibly dumped in an unauthorized manner. Contractor shall provide the address or description to City within one (1) working day of observing the violation.

4.09.D Covering of Loads. Contractor shall take steps to prevent blowing of MSW, Recyclable Materials, Food Scraps/Green Waste and/or other materials from Collection vehicles that are in route to the transfer station or to any Processing Facility.

Contractor shall place covers on all open Roll Off Box Containers and transfer trucks HE
20-39

during transport to the Disposal facility, Materials Recovery Facility, Food Scrap/Green Waste Yard Processing Facility, and all other Processing Facilities.

4.10 Hazardous Waste

4.10.A General. Contractor shall be aware of, and comply with, all laws, rules, and regulations relating to the handling and transportation of Hazardous Waste, including those requiring training and documentation. Contractor shall implement a Hazardous Waste exclusion program that includes, at a minimum, a visual check of all Carts Collected to protect against Collection of Hazardous Waste. If Contractor observes any substances that may contain Hazardous Waste within the City, including but not limited to, in Carts designated for MSW, Food Scraps/Green Waste or Recyclable Materials Contractor shall not collect such Hazardous Waste but shall immediately notify the appropriate regulatory agencies and the City. The preceding sentence does not apply to the Collection of Sharps, Bulky Items containing Freon, or provision of the Door -to -Door Household Hazardous Waste service pursuant to this Agreement. Contractor shall, prior to leaving the location where such Hazardous Waste has been observed, leave a tag at least 2" x 6" that informs the Customer why the Collection was not made and lists the telephone number for the appropriate local agencies to contact for proper disposal of the Hazardous Waste.

In addition to other required notifications, if Contractor observes any substances which it or its employees reasonably believe or suspect to contain Hazardous Waste unlawfully disposed of or released on private property or on public property, including storm drains, streets, or other public rights of way, Contractor shall notify City Manager, -29-
20-40

or the City Manager's designee immediately. Contractor shall prepare a written record of all Hazardous Waste discovered through the Hazardous Waste exclusion program including all information required to comply with all State and Federal Hazardous Waste Regulations. Said records shall be provided to the City with each Monthly Report submitted by Contractor and shall be maintained by Contractor in written or electronic format for the duration of the Term of this Agreement. (Monthly reports and due dates are described in Section 9.03A and Attachment K.)

4.10.6 Notice to Customers. Contractor shall notify all Customers at least once a year with a mailing separate from other notices and brochures, of: (i) the prohibition against the Disposal of Hazardous Waste in Residential Carts or in public litter or Recyclable Materials containers; and (ii) the obligation of each Customer to provide for the proper handling and disposition of Hazardous Waste.

4.10.0 Contractor to Segregate and Dispose. In the event Contractor inadvertently collects any Hazardous Waste, and during the course of transportation and disposition at a Disposal Facility, Materials Recovery Facility, Food Scrap/Green Waste Processing Facility or other Processing Facility, becomes aware that it has Collected such Hazardous Waste, Contractor shall segregate the Hazardous Waste, and shall arrange for its transport and Disposal to a properly permitted Recycling, treatment or disposal facility of Contractor's choosing at Contractor's sole expense. Contractor shall be solely responsible for the transport and disposition of all Hazardous Waste that is Collected by -30-
20-41

Contractor. City will cooperate with Contractor's attempts to locate and collect the costs of such transport and disposition from the responsible Customer.

4.10.D Operating Procedures and Employee Training. Contractor shall establish, implement and maintain written operating procedures designed to ensure Contractor's utilization of techniques generally accepted in the recycling and waste hauling industry for cities of the size and nature of the City of Newport Beach, to handle and dispose of Hazardous Waste and its compliance with the provisions of this Section

4.10 and all applicable laws, rules, and regulations. Contractor shall establish, implement and maintain an employee training program and shall ensure that employees responsible for the identification of Hazardous Waste are fully trained to properly handle and dispose of Hazardous Waste. Contractor shall maintain documentation that describes the training received by its employees.

4.10.E Hazardous Waste Diversion Records. Contractor shall maintain records showing the types and quantities, if any, of Hazardous Waste found in MSW, Recyclable Materials, and/or Food Scraps/Green Waste at Residential Premises which was inadvertently Collected from service recipients within the City, but Diverted from the landfill.

4.11 City's Right to Change Scope of Work. City may, without amending this Agreement, direct Contractor to cease performing one (1) or more of the services described in this Agreement and may direct Contractor to modify the scope of one (1) or more of such services, may direct Contractor to perform additional Collection services -31-
20-42

and/or processing services, and may similarly modify Contractor's obligations under any provisions of this Agreement.

The scope of services subject to change at the City's sole discretion includes, but is not limited to, program expansions, new Diversion Programs to comply with the Act, modifying or stopping certain Diversion programs and/or other programs, and/or specified portions of programs, change of Processing Facility, providing pilot programs and innovative services which may entail new Collection methods, different types of services, equipment and/or new requirements for Customers, new technology, and compliance with new laws, rules, and regulations.

If such changes cause an increase or decrease in the cost of performing the services, an appropriate adjustment in the Contractor's costs will be made as provided in Section 12.05. Contractor will continue to perform the new or changed service while the appropriate adjustment in costs, if any, is being evaluated by City and Contractor.

In the event City and Contractor cannot agree upon the appropriate adjustment in Contractor's costs within ninety (90) calendar days from the date when City first requests a proposal from Contractor to perform new, expanded or modified services, Contractor acknowledges and agrees that the City may permit Persons other than Contractor to provide such services.

4.12 Attendance At Meetings With City. Contractor shall attend monthly status meetings with City representatives and agents beginning within one (1) calendar week of the Effective Date of this Agreement. The date, time and location for meetings will be established by the City, in consultation with the Contractor. Contractor shall provide all -32-
20-43

necessary and appropriate personnel to attend each meeting such that the topics on the agenda can be addressed fully and completely. At the sole discretion of the City, additional, more frequent meetings may be convened during the months leading up to and after the start date for operations of January 15, 2022, in order to make sure the Implementation Plan is on schedule and that the Contractor is fully ready and prepared to commence Collection and all other operations pursuant to this Agreement. At the sole discretion of the City, additional meetings may be convened during the Term to continue to address issues not resolved at the monthly meetings and to address specific events, issues or concerns as needed by the City. Topics to be covered at the monthly meetings include progress on the Implementation Plan, progress toward the achievement of program implementation as described in Attachment B, Contamination levels in Customer Containers, results of the characterization audits described in Attachment N, review of implementation of all items in the Scope of Work, review of monthly reporting documents, planning for upcoming Special Events, and any other items relevant to the accomplishment of all tasks and attainment of all performance standards contained in the Agreement.

4.13 Ownership of Municipal Solid Waste and Recyclable Materials. Ownership and the right to possession of all MSW, Green Waste, Food Scraps, and Recyclable Materials shall be transferred to Contractor from the Customer once such materials are placed in Carts and properly placed at the designated Collection location, by operation of this Agreement. At no time shall the City obtain any right of ownership or possession of MSW, Green Waste, Food Scraps, Recyclable Materials, or Hazardous Waste placed for -33-
20-44

collection and nothing in this Agreement shall be construed as giving rise to any inference that City has such rights.

4.14 Roll Off Boxes at City Yard and Transfer Station. Contractor shall, at no additional charge, provide appropriately sized containers (i.e. Roll -Off Box(s)) at the City yard and at the transfer station for disposal of abandoned items and litter from City litter containers collected by City crews and/or City contractors as further described in Section 3 of Attachment B. Contractor shall empty the Roll Off Boxes in a timely manner, and at a minimum, within two (2) business days of notification from City.

4.15 Contamination Warning Notice. Contractor shall follow the procedures described in Attachment B, Section 5 "Procedure for Observation and Issuance of Contamination Notices to Customers" at any time a driver observes Contamination in a Container placed for Collection.

4.16 Proposals For New, Enhanced or Expanded Diversion Programs.

Contractor shall, at no additional cost, within forty-five (45) days of each request by City, submit a written proposal on providing additional or expanded Diversion services. The proposal shall contain a complete description of the following: (A) Collection methodology to be employed; (B) equipment to be used and staffing requirements by number and classification; (C) type(s) of Container(s) to be used; (D) informational/promotional materials proposed; (E) projection of annual operating costs and revenues (if applicable) for three (3) operating years, including documentation of, and support for, key assumptions underlying projections. In the event City decides to proceed with -34-
20-45

implementation of such additional and/or expanded Diversion service(s), the provisions of Section 4.11 of the Agreement shall apply.
-35-
20-46

ARTICLE 5: TRANSPORTATION AND DISPOSAL OF MSW OR

PROCESSING OF RECYCLABLE MATERIALS

5.01 Transportation and Disposal of MSW. City entered into an agreement with the County of Orange (authorization date of March 24, 2009 for the County of Orange and April 28, 2009 for the City of Newport Beach) for utilization of the Orange County Landfill System for disposal of MSW ("OCLS Agreement"). An amendment to the OCLS Agreement dated April 28, 2016 was approved by the City and the County and became effective on June 30, 2016. Both the OCLS Agreement and the amendment are included as Attachment I. The parties acknowledge that the City's existing arrangements pursuant to the OCLS Agreement will expire as of June 30, 2025. City will be responsible for renewing this agreement and shall notify Contractor when such renewal has taken place.

In the event the Orange County Landfill System becomes unavailable to City for Disposal of MSW from City, Contractor shall assist City in identifying and researching possible alternate Disposal Sites and shall cooperate with City in switching to the alternate Disposal Site(s) identified by City. In such event, the provisions of Section 4.11 and Section 12.05 shall apply if the change in Disposal Site creates a change (either an increase or decrease) in the cost of transport or Disposal of MSW. Contractor shall transport and deliver all MSW Collected pursuant to this Agreement to the Orange County Landfill System, and to the specific landfill designated by City, for the term of the OCLS Agreement as amended, including any extensions. The City -designated Disposal Sites as of the Effective Date are: the Prima Deschesa Landfill, the Frank Bowerman Landfill and the Olinda Alpha Landfill in the Orange County Landfill System. If the City -designated landfill(s) becomes unavailable, Contractor shall transport and deliver all MSW collected pursuant to the Agreement to another landfill within the Orange County Landfill system -36-
20-47

as directed by City. If there is no other landfill available within that system, or in the event the City's landfill agreement with the County of Orange terminates during the Term, Contractor shall transport and deliver all MSW collected pursuant to the Agreement to such other Disposal site designated by the City Manager or his/her designee.

During the term of the City's contract with the County of Orange, Contractor shall comply with all provisions of such contract, including, but not limited to, Section 3.1(C) requiring transport and delivery of residue (as defined in Attachment I: "'Residue' means any material remaining from the processing, 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 ten percent (10%) of the amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing.]") from all Materials Recovery Facilities, Compost Facilities and all other Processing Facilities utilized in the performance of this Agreement, to the Orange County Landfill System; and with Section 3.1 (H) requiring provision of tonnage data by type of load (for purposes of this Agreement: "Residential"), and the origin of MSW delivered to the County Landfill System directly from City routes and from all transfer stations and Processing Facilities used in the performance of this Agreement.

Delivery of any material to a landfill for use as Alternative Daily Cover ("ADC") is prohibited as described in Section 6.08.

Contractor shall cooperate with the operator(s) of the City -approved Disposal Site(s) with regard to operations therein, including by way of example, complying with -37-
20-48

directions from the operator to unload Collection vehicles in designated areas, accommodating to maintenance operations and construction of new facilities, complying with the operator's Hazardous Waste exclusion program, and fully and transparently cooperating with the operator's tonnage tracking system including reporting of allocation methods.

With regard to Contractor's use of the City -owned transfer station for consolidation and transport of MSW or other materials collected in City during the Term, Contractor shall execute an agreement with the County of Orange as described in Section 3.1 (C) in a form similar that in Appendix 4 of the City -County Landfill Contract in Attachment I, entitling Contractor to be charged the Contract Rate (as defined in Attachment 1) for Disposal of MSW from City in the Orange County Landfill System.

5.02 Transportation of Single Stream Recyclable Materials and Single Material Recyclable Materials. Contractor shall transport and deliver for processing Single Stream Recyclable Materials and Single -Material Recyclables, and any appropriate Recyclable Bulky Goods to the CR&R Intermediate Processing Center (Western Ave Clean MRF) located at 11292 Western Avenue, Stanton, CA which is the City -approved Clean MRF identified in Attachment O.

5.03 Transportation of Co -Collected Food Scraps/Green Waste. Contractor shall transport and deliver all co -collected Food Scraps/Green Waste to the CR&R-owned and operated South Yuma County Landfill Composting Facility located at 19536 South Avenue 1 E, Yuma, AZ which are identified in Attachments Q (Yuma Composting Facility) which is the City -approved Food Scrap/Green Waste Processing Facility identified in Attachment P.
20-49

5.04 City Right to Unilaterally Direct Change in Processing Facility. City reserves the right to unilaterally direct a change in any of the Processing Facilities described in this Article 5 for any reason, during the Term. In such event, City shall provide a minimum of six (6) months prior written notice to Contractor of the change and the provisions of Section 4.11 shall apply. If the City directs use of a different Processing Facility, all of the requirements for use and operation of the new facility in Article 6, including but not limited to, Sections 6.04 and 6.05, shall apply. Upon City approval of use of a new Processing Facility that is not owned by Contractor, Contractor shall submit to City within seven (7) days, a copy of the fully executed contract with the facility owner evidencing the terms and conditions under which Contractor is entitled to utilize the facility for processing of City's materials and showing that the contract includes the Processing Facility meeting all the requirements included in this Article 6.

5.05 Designated Processing Facilities Unavailable. If any of the Processing Facilities described in Sections 5.02, 5.03 or 5.04, become unavailable for use by the City during the Term, City may designate a new Processing Facility pursuant to Section 4.11. The parties agree that a Processing Facility shall only be deemed to be "unavailable" if one or more of the following has occurred: (i) a Force Majeure event as described in Section

14.12 has occurred; or (ii) a Processing Facility has lost one (1) or more permits to operate; or (iii) a Processing Facility has exhibited a pattern of violation through the receipt of repeated notices of violation from one (1) or more regulatory agencies. Further, the 'City and Contractor agree that a Processing Facility shall only be deemed to be "unavailable" if the lack of availability of the Processing Facility is not due to Contractor's negligence, illegal activity, neglect or willful misconduct. At City's request, Contractor shall -39-
20-50

research, identify and propose one or more alternate Processing Facility(ies) for the materials requiring Processing, within five (5) working days. Contractor shall submit a written analysis and recommendation to the City within thirty (30) working days concerning the cost for use of such alternate facility(ies) and any logistical changes that would be required to utilize such alternate facilities. City and Contractor will discuss the advantages and disadvantages of use of the potential alternate Processing Facilities and City will designate a selected facility. The decision of the City shall be final. In the event a Processing Facility becomes unavailable due to the negligence, illegal activity, neglect or willful misconduct of Contractor, Contractor shall bear all additional costs for use of an alternate Processing Facility including increased processing costs, transportation costs, transfer costs and all other costs. In the event the City designates use of a different Processing Facility and/or type of Processing Facility(ies) all of the requirements for use and operation of the new facility(ies) in Article 6, including but not limited to Sections 6.04 and 6.05, shall apply. Upon City approval of use of a new Processing Facility that is not owned by Contractor, Contractor shall submit to City within seven (7) days, a copy of the fully executed contract with the facility owner evidencing the terms and conditions under which Contractor is entitled to utilize the facility for processing of City's materials and showing that the contract includes the Processing Facility meeting all the requirements included in this Article 6.

5.06 Contractor Request for Change of Processing Facility. In the event Contractor proposes the use of a new or different Processing Facility other than those currently in use, Contractor shall provide the City with a detailed description of the proposed facility including but not limited to, the location, owner and operator, current facility users, ,M
20-51

technical capacity, processing methodology, Diversion capabilities, potential advantages to the City, cost of use of the facility including impacts of transportation costs and tipping fees, and shall provide copies of all permits for the facility. In presenting the costs for use of the proposed facility, Contractor shall provide the City with both basic cost information and with proposed revisions to Attachment D-1 showing the breakdown of costs for Collection, processing, transportation and Disposal for each cost category ("Customer Collection in `2013 Contract Area' in Attachment Q"; "Customer Collection in `Newport Coast' Area in Attachment Q"; and "Enhanced SB 1383 -mandated programs [for entire City]") incorporating use of the proposed facility, as well as the total proposed change in Contractor compensation for each cost category incorporating use of the proposed facility. The City will evaluate the proposal and may, at its sole discretion, choose not to use the proposed facility if any one of the following issues is not addressed to the satisfaction of the City:
(a) Costs are not acceptable.
(b) The facility does not have all required state, federal and local permits, and land use approvals and/or the facility is not operating in compliance with all state, federal and local permits, regulations and land use approvals. (c) Performance of the facility is not acceptable (e.g. the Diversion achieved or proposed is not adequate, the quality of the materials created at the facility is substandard, etc.)
(d) The actual or proposed end use for the processed materials created by the facility is not the highest and best use as dictated by regulatory conditions. (e) The City does not need such a facility.
(f) Use of the proposed facility is not in the best interest(s) of the City and its Residents/Customers.
-41-
20-52

The parties will meet and discuss use of the proposed facility and the Contractor will provide prompt responses to City questions, concerns and requests for any additional information. City will inform Contractor in writing of its decision concerning use of the proposed facility within sixty (60) days of receipt of all of the information requested by the City. The decision of the City shall be final.

In the event City chooses to utilize a new or different Processing Facility, Attachment D-1 shall, for the remainder of the Term, be revised to include the additional compensation to Contractor agreed upon by the parties. If the City approves use of a different type of Processing Facility(ies) and/or processing method, all of the requirements for use and operation of the new facility(ies) in Article 6, including but not limited to Sections 6.04 and 6.05, shall apply. Upon City approval of use of a new Processing Facility that is not owned by Contractor, Contractor shall submit to City within seven (7) days, a copy of the fully executed contract with the facility owner evidencing the terms and conditions under which Contractor is entitled to utilize the facility for processing of City's materials and showing that the contract includes the Processing Facility meeting all the requirements included in Article 6.
-42-
20-53

ARTICLE 6: PROCESSING AND MARKETING OF RECYCLABLE

MATERIALS

6.01 General. The Contractor compensation in Attachment D-1 includes the costs of furnishing of all labor, supervision, equipment, materials, supplies and all other items necessary to perform the processing and materials marketing services required in a thorough, workmanlike and efficient matter.

6.02 Permits. Contractor shall utilize only Processing Facilities that are fully licensed and permitted under all applicable federal, state, regional and local laws, rules, and regulations. Within fifteen (15) calendar days after the Effective Date of the Agreement, Contractor shall deliver to City a package containing current copies of all of the permits for the Clean MRF, the Compost Facility and for any other Processing Facility approved by City that Contractor will use to process materials collected within City.

6.03 Delivery of Residue to Landfill. Contractor shall deliver, or arrange to be delivered, all non -recyclable Residue from the operations at all Processing Facilities including but not limited to the Clean Materials Recovery Facility and the Compost Facility, to the City designated landfill. Delivery of any material to a landfill for use as ADC is prohibited as described in Section 6.08.

6.04 Clean MRF and Compost Facility Operating Requirements. Contractor shall operate all Processing Facilities it owns, including but not limited to, the Clean Materials Recovery Facility, and the Compost Facility, in compliance with all applicable federal, state, regional and local laws and regulations and shall adhere to the requirements of all permits for each facility. In the event the City approves or directs Contractor to utilize a Processing Facility it does not own (pursuant to Section 5.04, Section 5.05 or Section -43-
20-54

5.06) it shall be Contractor's responsibility to investigate and determine that said facilities are operating in compliance with all applicable laws, rules, and regulations and permit requirements. If, at any time during the Term, said facilities are not operating in compliance with all legal requirements, it shall be the duty of Contractor to immediately report the situation to the City. Upon receipt of such information, City may conduct an independent investigation of the situation, may require Contractor to utilize a different Processing Facility while City is conducting its investigation, or may take other actions City deems reasonable and necessary to protect the interest of the City, its customers, public health and safety and the environment.

The Clean MRF described in Attachment O must include processing lines for cleanup of Single -Material Recyclables and sorting of Single Stream Recyclable Materials and must be capable of processing all the Single -Material Recyclables and Single Stream Recyclable Materials collected by Contractor in the City.

The Compost Facility described in Attachment P, must be capable of processing all the co -collected Residential Food Scraps and Green Waste Collected by Contractor in the City. The end product(s) produced at the facility must be capable of being used for agricultural and landscaping applications and shall meet all federal, state, regional and local laws and regulations for such uses. Compost produced must be certified by the U.

S. Composting Council Seal of Testing Assurance Program ("STA"). Contractor shall provide City with documentation evidencing such certification annually on or before August 1 of each year beginning August 1, 2022. The Compost Facility Contactor shall have the capability to provide "custom blends" of Compost to address end users' needs for specific crops, soils and/or other parameters. In the event Contractor has, and utilizes 20-55

an in-house laboratory for such testing, City shall have the right to request the use of an outside independent laboratory for testing of Compost and Anaerobic Digestate at any time at Contractor's sole expense.

6.05 Use of Biomass or Transformation Facilities Prohibited. Contractor shall not deliver MSW or any other materials Collected in City to a Biomass Facility or to a Transformation Facility for processing.

6.06 Contractor Incentive/Possible Extension(s) of Agreement. Contractor may earn up to two (2) one-year extensions of the Term, as described herein. Attachment N, Section 3 provides the detailed methodology for evaluation of achievement of the requirements described herein.

6.06.A Phase 1 Extension Incentive. If Contractor meets the requirements listed below and Contractor is in full compliance with all requirements of this Agreement, City will extend the Term of the Agreement by one (1) year. In order to qualify for the Phase 1 extension incentive, Contractor must have achieved all of the following for calendar year 2024: Contractor has not exceeded the Contamination caps for Residential materials as follows: twenty-five percent (25%) by weight for Single Stream Recyclable Materials, twenty-five percent (25%) by weight for co -collected Food Scraps/Green Waste and twenty-five percent (25%) by weight for MSW, as described in Attachment N, Section 3.

If Contractor meets the requirements for Phase 1, the City will extend the Agreement for one (1) year from January 1, 2030 to December 31, 2030. During the period December 1, 2024 through April 30, 2025, City will evaluate the data from the characterization audits -45-
20-56

for calendar year 2024 using the criteria and methodology in Attachment N, Section 3.

City shall notify Contractor of its determination as described in Section 6.06.D.

6.06.6 Phase 2 Extension Incentive. If Contractor meets the implementation requirements listed below and Contractor is in full compliance with all requirements of this Agreement, City will extend the Term of the Agreement by one (1) year. In order to qualify for the Phase 2 incentive, Contractor must have achieved all of the following for calendar year 2026: Contractor has not exceeded the following Contamination caps for Residential materials: fifteen percent (15%) by weight for Single Stream Recyclable Materials, fifteen percent (15%) by weight for co -collected Food Scraps/Green Waste and fifteen percent (15%) by weight for MSW, as described in Attachment N, Section 3. If Contractor meets the requirements for Phase 2, the City will extend the Agreement for one (1) year. If Contractor earned the Phase 1 extension, then the City will extend the Term for one (1) additional year, from January 1, 2031 through December 31, 2031. If Contractor did not earn the Phase 1 extension but earns the Phase 2 extension, the City will extend the Term for one (1) year for the period January 1, 2030 through December 31, 2030. During the period December 1, 2026 through April 30, 2027, City will evaluate the data from the characterization audits for calendar year 2026 using the criteria and methodology in Attachment N, Section 3.

6.06.0 Failure to Meet Phase 1 or Phase 2 Extension Requirements. If Contractor fails to meet the extension requirements of Phase 1, such failure will not preclude Contractor from earning a one-year extension of the Agreement in Phase 2. If Contractor fails to meet the extension requirements of Phase 1 by the Phase 1 deadline, EN
20-57

but meets the extension requirements for both Phase 1 and of Phase 2 by the Phase 2 deadline, City will extend the Term by one (1) year, to December 31, 2030.

6.06.D Notice of Extension or Failure to Earn Extension. The City will evaluate Contractor's performance in Phase 1 during the period December 1, 2024 through April 30, 2025. City will notify Contractor in writing on or before May 1, 2025 as to whether or not the Term is extended by one (1) year for Phase 1. The City will evaluate Contractor's performance in Phase 2 during the period December 1, 2026 through April 30, 2027. City will notify Contractor in writing on or before May 1, 2027 as to whether or not the Term is extended by one (1) year for Phase 2. The decisions of the City shall be final.

6.07 Marketing of Recovered Materials, Compost and Other Products. Contractor shall be responsible for marketing, or arranging for the marketing, of all Recovered Materials, all Compost and all other products produced from the Processing Facilities utilized to process materials Collected in City, including the Materials Recovery Facility, and the Food Scrap/Green Waste Processing Facility.

6.08 Limits on Modes of Disposition. City may direct Contractor, at any time, to stop delivering Recovered Materials for uses that do not qualify as Diversion for purposes of the Act. Contractor is prohibited from delivering any material Collected in City to a solid waste landfill for use as ADC. This prohibition includes, but is not limited to, Recyclable Materials, Green Waste, Food Scraps, Wood, Compost, material screened from Compost processing operations, MRF "fines", MRF "overs" and all other products, byproducts and -47-
20-58

Residue from Processing Facilities utilized to Process materials pursuant to this Agreement.

This prohibition applies even if CalRecycle or any other agency allows such materials used as ADC to qualify as Diversion for purposes of the Act.

No MSW of any kind may be Disposed of on land at any location other than by delivery to the City -designated landfill. No MSW of any kind may be disposed of in water or in the atmosphere.

6.09 City Access to Processing Facilities. In addition to City's rights under other provisions of this Agreement, City and its agents shall have the right at all reasonable times to enter each of the Processing Facilities to (a) observe operations, (b) observe compliance with permit requirements, (c) observe tonnage allocation and tonnage tracking procedures, and (d) for any other reasonable purpose. 20-59

ARTICLE 7: EQUIPMENT, FACILITIES AND PERSONNEL

7.01 General. Contractor shall furnish all facilities, vehicles and equipment necessary to perform safely and efficiently the services required by this Agreement. Contractor shall provide Collection vehicles, Carts, and other equipment as described in Sections 7.03 and 7.04 of this Article 7 and in Attachment B.

7.02 Facilities.

7.02.A General. Contractor shall provide all facilities required for storage, maintenance, repair and deployment of all vehicles and equipment required to perform the services required by this Agreement. Contractor shall also provide the necessary facilities and office space for personnel of Contractor providing the services required by this Agreement. The facility or facilities used by Contractor to perform the required services shall be fully permitted in compliance with all Federal, State and local laws, rules, and regulations. In the event the City receives complaints about the facilities (whether for noise, odor, litter, traffic problems or any other issue and regardless of whether said facilities are located within City or not), Contractor shall promptly take action to address the issue(s) and shall resolve the problem within five (5) business days.

7.03 Vehicles.

7.03.A General. Contractor shall provide Collection and auxiliary vehicles in the quantities and of the type, size and configuration listed in Attachment F for operations in City throughout the Term. (Vehicle Identification Numbers marked "TBD" on Attachment F shall be provided by Contractor to City on or before January 15, 2022.) Contractor shall 20-60

provide the Collection vehicles listed as model year "2021" in Attachment F as of the Effective Date, and shall provide the listed replacement vehicles on or before the dates listed in Attachment F. The average age of the Collection vehicle fleet used in City (as listed in Attachment F) shall not exceed seven (7) years at any time during the Term. The average age of the fleet shall be calculated annually in April of each year of the Term beginning in 2022 by using the methodology included in Attachment F. The seven (7) year average age requirement applies only to the heavy-duty Collection vehicles used to collect MSW, Recyclable Materials, and Food Scraps/Green Waste in City. However, no vehicles utilized by Contractor in City shall be older than ten (10) years of age. This includes Collection vehicles, the Household Hazardous Waste and Bulky Item Collection vehicles, Cart delivery vehicles, and all ancillary vehicles such as Supervisor and Recycling Coordinator vehicles.

The average vehicle age and a listing of vehicles in service in the City shall be submitted to the City with the annual report as described in Attachment K. City shall have the right to inspect all vehicles serving the City to verify the vehicle age, on -board technology, auxiliary equipment, vehicle markings, aesthetic condition, and safety systems at any time during the Term, in a location and on a date mutually agreed upon by the City and the Contractor.

All vehicles provided by Contractor shall be suitable in design and construction for arduous heavy-duty service. The model year 2021 vehicles provided as of the Effective Date, and all replacement vehicles listed in Attachment F, shall be new and unused. For -50-
20-61

purposes of this section, "new" means the truck chassis, body and all other parts and components shall be new and unused.

All vehicles shall comply with all Federal and State laws and regulations including but not limited to the California Air Resources Board regulations. All MSW, Recyclable Materials, and Food Scrap/Green Waste Collection vehicles listed in Attachment F shall be dedicated one hundred percent (100%) to use in City, and shall not be used to collect any material in any other location at any time. Collection routes within the City for MSW, Recyclable Materials, and Food Scraps/Green Waste shall Collect only materials from within the City such that when the Collection vehicles are weighed at the Disposal facility and/or at the Processing Facilities, one hundred percent (100%) of the Tons in each vehicle originated solely from the City.

7.03.8 Alternative Fuel Vehicles/Use of City Fueling Station. All Collection vehicles (including all side loaders, rear loaders, single -pass vehicles, and all other types of vehicles used by Contractor to Collect MSW, Recyclable Materials and/or Food Scraps/Green Waste in City) shall be alternative fuel vehicles, using liquefied natural gas ("LNG") or compressed natural gas ("CNG") as approved by the South Coast Air Quality Management District for MSW, Recycling and Food Scrap/Green Waste Collection vehicles. All vehicles 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 "Clean On -Road Residential and Commercial Refuse Collection Vehicles". Route Supervisor's and Recycling Coordinators' vehicles, pickup trucks, the Bulky Item Collection vehicle(s), the Door -to- -51-
20-62

Door Household Hazardous Waste Collection vehicle(s) and all other ancillary vehicles that will operate on a routine basis in the City shall comply with all applicable Federal, State and local laws, rules, and regulations, including, but not limited to, the California Air Resources Board and South Coast Air Quality Management District regulations.

City benefits from the sale of CNG at the CNG fueling station adjoining the City -owned transfer station property. Contractor agrees to purchase CNG from this fueling station, with this station and Contractor's facility on Lampson in Garden Grove as the primary facilities for fueling all of Contractor's Residential Collection vehicles providing Collection services in City pursuant to this Agreement.

7.03.0 Vehicle Identification. The phrase "Serving the City of Newport Beach" and the name of Contractor, Contractor's local telephone number, and a unique vehicle identification number for each vehicle shall be prominently displayed on all Collection vehicles. Alternative Fuel Vehicles shall display a statement as to the type of alternative fuel being used. City shall have the right to approve all details, including size, color and location of text, identification numbers and logo.

7.03.113 Cleaning and Maintenance.

7.03.113.1 General. Contractor shall maintain all equipment used in providing service under this Agreement in a safe, neat, clean and operable condition at all times. In the event City gives Contractor written notice that any vehicle does not comply with the standards set forth in this Agreement, the vehicle -52-
20-63

shall be promptly removed from service within the City and not used again until inspected and authorized in writing by the City.

7.03.D.2 Cleaning. The exterior and interior of vehicles used in the Collection of MSW, Recyclable Materials, and Food Scraps/Green Waste, shall be thoroughly washed by Contractor at least once a week or more often as needed to maintain a clean appearance and thoroughly steam cleaned at least once a month or more often as needed to maintain a clean appearance. In addition, the interior Collection compartment of vehicles used for the Collection of Food Scraps/Green Waste shall be thoroughly washed on a daily basis. City may inspect vehicles at any time to determine compliance with sanitation requirements and aesthetic conditions. Contractor shall make vehicles available to the Orange County Department of Environmental Management and to the City for inspection, at any frequency that either requests. Contractor shall make vehicles available for inspection by City within twenty-four (24) hours of City's request.

7.03.D.3 Painting. All vehicles used in Collection of MSW, Recyclable Materials, and Food Scraps/Green Waste, shall be repainted by Contractor at least once every five (5) years, unless the City determines that repainting specific vehicles at that frequency is not necessary because the vehicle's appearance is satisfactory or unless the City determines that repainting a specific vehicle earlier (due to graffiti, wind damage, etc.) is necessary to ensure that the vehicle gives the appearance of having been repainted within the preceding sixty (60) months. -53-
20-64

All graffiti shall be removed or painted over within two (2) business days of discovery.

7.03.13.4 Maintenance. Contractor shall inspect each vehicle daily to ensure that the vehicle and all equipment is operating properly and in compliance with this Agreement. Vehicles which are not operating properly shall be taken out of service until they are repaired and operate properly. Contractor shall perform or cause to be performed all scheduled maintenance functions in accordance with the manufacturer's specifications and schedule. Contractor shall keep accurate records of all vehicle maintenance, recorded according to part or vehicle identification, date, and mileage, and shall make such records available to the City upon request.

7.03.13.5 Repairs. Contractor shall repair, or arrange for the repair of, all vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all vehicles and equipment in a safe and operable condition. If an item of repair is covered by a warranty, Contractor shall obtain warranty performance. Contractor shall maintain accurate records of repair, which shall include the part or vehicle identification, date/mileage, nature of repair and the signature of a maintenance supervisor that the repair has been properly performed.

7.03.13.6 Storage. Contractor shall arrange to store all vehicles and other equipment in safe and secure location(s). Facilities used for storage shall comply with all zoning and land use requirements applicable to the facility(ies) whether -54-
20-65

located within City or in other jurisdictions. Contractor shall not store vehicles or equipment in parking lots, vacant lots, on public streets, on any public property, in the public right-of-way or in any other non -permitted area. In the event Contractor determines there is a need to store vehicles or equipment on a public street, in the public right-of-way or on other public property within City, Contractor shall first obtain a temporary street closure permit from the City Public Works Department and shall also obtain prior written consent of the City. City shall have access to Contractor's regular vehicle and equipment storage facilities at all times.

7.03.D.7 Leaking Vehicles. In the event that City or Contractor receives a report of a leaking vehicle, Contractor shall, upon notification by City, Customer or other Person, immediately take the vehicle out of service and repair the leak.

Contractor shall be responsible for immediate cleanup of any spilled fluids whether on public streets, private streets, public property or private property. Contractor shall also immediately notify City and all applicable agencies (as listed in Section

4.08.0 of this Agreement) of any leaked liquid or spill that is near or that reaches, or that Contractor reasonably believes could reach, a storm drain, waterway, the bay or ocean, stream, wetland, or any other body of water. Vehicles collecting Food Scraps/Green Waste shall be specially designed and manufactured to contain liquid and prevent leaking.

7.03.D.8 DMV Registration/BIT Inspections/Brake Inspections. All vehicles utilized by Contractor in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles shall pass -55-
20-66

the required California Highway Patrol biennial inspection of the terminals ("BIT") Within fifteen (15) calendar days after the BIT inspection, Contractor shall submit records to City from all of the terminal(s) responsible for the maintenance and repair of equipment used in City, showing the results of the inspection(s).

The brake system of each Collection vehicle used in performance of this Agreement (including all rear loaders, side loaders, single -pass vehicles, and the Household Hazardous Waste and Bulky Item Collection vehicles) shall be inspected and certified annually. Notice of certification for each vehicle shall be filed with the City within thirty (30) calendar days after each certification, but in no event later than May 1 of each year of the Term beginning May 1, 2022. Failure to submit the required certification shall be grounds for termination of this Agreement.

7.03.E Operation. Vehicles shall be operated in compliance with the California Vehicle Code and all applicable safety regulations and local ordinances. Vehicles shall be operated only by employees of Contractor who are appropriately licensed by the California Department of Motor Vehicles for the class of vehicle they drive. All drivers employed by Contractor and operating vehicles in the City shall be enrolled in the Department of Motor Vehicles Employee Pull Notice ("EPN") program and shall abide by all State and federal regulations for driver hours and alcohol and controlled substance testing. Contractor shall not load vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local weight restrictions on vehicles including, but not limited to, legal axle load weight limits. Contractor is solely responsible -56-
20-67

for paying any fines imposed by the California Highway Patrol, or other regulatory agencies, for violation of these or any other requirements.

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.

7.03.F Vehicle Mirrors. All vehicles used by Contractor for providing services pursuant to this Agreement with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or more shall be equipped with a convex mirror on the front of each vehicle, adjusted so as to enable the operator to see all points on an imaginary horizontal line which:
(a) Is three feet (3') above the road;
(b) Is one foot (1') directly forward from the midpoint of the front of the vehicles; and
(c) Extends the full width of the front of the vehicle.

7.03.G Collision Avoidance System. All vehicles operated by Contractor in the City to Collect MSW, Recyclable Materials, Food Scraps/Green Waste, Bulky Items, and Household Hazardous Waste shall include the best available collision avoidance -57-
20-68

system that is capable of detecting adjacent pedestrians, bicyclists, scooters, motorcycles and vehicles. City reserves the right to inspect Contractor's vehicles, at any time, to confirm that the installation and capability of Contractor's collision avoidance system is consistent with the requirements herein.

On or before January 15, 2022, and on or before January 1 of each year of the Term thereafter, Contractor shall submit to City a certification signed and dated by an authorized corporate officer under penalty of perjury, containing the following and stating that the information provided is true and correct and contains no false or misleading statements or information as of the date on the certification:
i. List of all Collection vehicles (including front loader, rear loader, side loader, and roll off vehicles and all "spares" plus all Collection vehicles for Bulky Items and Household
Hazardous Waste) that Contractor uses in the City.
ii. Collision Avoidance System installed on each vehicle including name of system, manufacturer, date installed, name of Person who installed the system, name of Person(s) who tested the system to ensure proper installation and operation of system.

7.03.H Other Required Vehicle Technological Capabilities. All vehicles operated by Contractor in the City to Collect MSW, Recyclable Materials and Food 20-69

Scraps/Green Waste shall be equipped with a system that provides surveillance, monitoring, auditing, recording and tracking including video and still photo equipment; GPS system; i -pads (or tablet equivalent); ability to track serial numbers using bar code scanners, QR codes or similar technology; backup cameras; and communication devices.

Collection vehicles in service in the City shall be equipped with 1) on -board modules for operational Customer relationship management (CRM) functionality; 2) truck telematics systems that provide real-time truck data, location, video and monitoring; and 3) communications systems for contact with dispatch, the Route Supervisor, and other Persons as needed.

The on -board operational CRM module shall be available to the driver via in -cab functionality and accessible via a tablet in the cab of the vehicle. The operational CRM system shall capture driver, route and service confirmation in real-time, which can be accessed remotely by customer service and dispatch groups. The on -board operation CRM system shall allow drivers to view and scroll through route listings, confirm service completions, note service exceptions (i.e. Contamination, non -containerization, blocked Cart access, non -set out, etc.), and receive additional dispatched work in real-time. The on -board operational CRM system shall be accessible to the driver via electronic communication that can be instantly transmitted to customer service and/or dispatch, who also use the operational CRM platform. The operational CRM system shall also be able to compute route statistics in real time, such as route productivity, work orders, billing, and follow-up. The tablets hosting the on -board operational CRM system shall also be dismountable by the driver for mobility purposes which will allow the driver to use the tablet as a digital camera to photo -document service exceptions, link the exception to the -59-
20-70

Customers' account, and report serious operational issues to the City in real-time. The operational CRM system shall allow the Contractor to note overloaded Carts, blocked access, non -containerization, and contamination events and document them on the Customer's account. The operational CRM system shall also generate template notification alerts regarding service exceptions to the Customer, the City, the Route Supervisor, and Recycling Coordinators (if applicable). These template notifications shall be emailed directly to the Customer.

The on -board vehicle telemetrics system shall be connected to a network using wireless data and shall also be connected to each collection vehicles' on -board computer. The on -board vehicle telemetrics system shall include the GPS, video surveillance, driver behavior, hours of service, and maintenance integration described herein, to provide increased safety, service, and efficiency to vehicle operations. The on -board vehicle telemetrics system shall also allow the Contractor to monitor driver behavior, such as speeding, hard braking, hard acceleration, and area violations. The Route Supervisor and other responsible parties shall receive notifications when such events occur so they may be addressed with the driver. The video capture component of the on -board DVIR system shall be able to be viewed in real-time or stored as a means to review past safety or service events. The City shall have read-only access to this footage. Video capture shall include in -cab, front, rear and side -views. Contractor shall provide said video footage to City within five (5) business days of request; except in the event of a crash, injury, fatality or other incident, Contractor shall provide said video footage to law enforcement in the timeframe requested by law enforcement representatives and/or agencies. Contractor's failure to provide video footage within the M
20-71

required timeframes will result in the assessment of liquidated damages described in Section 13.09.D.3. Contractor's failure to provide proof of vehicles with the above- described technological capabilities will result in the assessment of the liquidated damages described in Sections 13.09.G.3 and 13.09.G.4.

7.04 MSW, Recyclable Materials and Food Scrap/Green Waste Carts.

7.04.A General. Contractor shall furnish (and deliver to Customers) all Carts for storage of (i) MSW, (ii) Recyclable Materials and (iii) Food Scraps/Green Waste of the types and sizes as described in Attachment B. A list of the Carts to be provided by Contractor, and the specifications for said Carts, are included in Attachment E. The type, size and number of Carts shall be sufficient to provide all of the Carts and Extra Carts described in Attachment B.

7.04.6 Cart Ownership. Contractor shall own all of the Carts provided to Customers. If requested by City at the end of the Term, Contractor shall remove all Carts from the City at a timing mutually agreed upon with City.

7.04.0 Cart Distribution. Contractor shall distribute new Carts to Customers for Food Scraps/Green Waste on or before the dates required in Attachment B. In the event Contractor fails to distribute the Carts to Customers according to the required schedule, the liquidated damages in Section 13.09 shall apply. Contractor may -61-
20-72

utilize the existing Roto Carts and other existing Carts in place at Customers' Residences as of the Effective Date, as described in Attachment B.

7.04.D Repair, Replacement, and Exchange. Contractor shall repair or replace any Cart which is damaged, broken, lost or stolen. Contractor shall also repair or replace all Carts which do not meet vendors' warranties and the City -required Cart specifications set forth in Attachment E.

Upon request from a Customer, Contractor shall exchange a Cart that is in Customer's possession and not damaged, broken, lost or stolen for a new Cart within fourteen (14) calendar days of request.

7.04.E Cleaning and Maintenance of Contractor -Furnished Carts.

Contractor shall maintain all Contractor -furnished Carts in a functional condition and so as to present an attractive appearance. Contractor -furnished Carts that have been painted or marked with graffiti shall be removed from the Premises by Contractor within two (2) business days of notification by the Customer or City. At the same time as such Carts are removed, they shall be replaced by like -sized Carts for the same materials furnished by Contractor free of graffiti. Contractor understands and agrees that painting over graffiti shall not constitute replacement. Contractor shall clean and maintain all Contractor -furnished Carts in a safe and sanitary condition and whenever the City, or another agency with jurisdiction as a regulator, determines that cleaning is required to abate a health concern or nuisance condition. Under no circumstances shall Carts be hosed out or cleaned on-site at a Residence unless all water used in such cleanout is contained in a tank and hauled off-site by Contractor. Water from the cleaning of Carts -62-
20-73

is prohibited from being discharged to, or allowed to enter, any water or pathway to water including, but not limited to, storm drains, sewer drains, waterways, the ocean, the bay, estuary(ies), channels, wetlands, or any street, alley, parking lot or other surface that could allow the water to drain into any of the water pathways listed herein.

7.05 Personnel.

7.05.A General. Contractor shall furnish such competent, qualified and trained drivers, laborers, mechanical, supervisory, clerical, customer service, managerial, Recycling Coordinators, and other personnel as may be necessary to provide the services required by this Agreement in a safe, efficient, reliable and courteous manner. The minimum complement of employees which Contractor will provide to perform the scope of work described in this Agreement shall be as set forth on Attachment G.

Contractor shall provide fully qualified and experienced management personnel as named in Attachment G and shall not substitute those indicated by a star, (*) on Attachment G without the prior written consent of City. Specific qualifications and duties of the following personnel are described herein: Recycling Coordinators (Section

7.05.1-1), City Operations and Customer Liaison (Section 7.05.1), Senior Manager Responsible for Development and Marketing of Compost and Compost products (Section

7.05.M) and dedicated Route Supervisor (Section 7.05.N). Contractor shall perform all work and provide all services described in this Agreement in a manner commensurate with industry professional standards. All Collection vehicle drivers, Recycling coordinators, the Customer Liaison and all supervisory personnel must be able to -63-
20-74

communicate effectively in English (both orally and in writing). An order given to supervisory personnel shall be deemed delivered to Contractor.

7.05.B Driver Qualifications. All drivers shall be trained and qualified in the operation of MSW, Recyclable Materials and Food Scrap/Green Waste Collection vehicles and must have in effect a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. Each driver shall carry his/her license during work hours.

7.05.0 Uniforms. Contractor shall require its drivers, Recycling Coordinators and all other employees who come into contact with the public in the City during working hours, to wear standardized uniforms bearing the Contractor's name, and to carry an identification badge or other means of identifying the employee. The City shall have the right to approve the style and color of the uniforms. Such uniforms shall present a freshly cleaned appearance. Employees shall be instructed to present employment identification cards to City staff, Customers, security guards and law enforcement officers upon request, during work hours.

7.05.D Written Operating Procedures. Contractor shall establish, implement and maintain written operating procedures designed to ensure Contractor's utilization of techniques generally accepted in the solid waste and recycling industry for cities of the size and nature of Newport Beach, including but not limited to, procedures 20-75

for handling and disposal of Hazardous Waste and hazardous substances and procedures for Contractor's compliance with all the provisions of this Article 7.

7.05.E Safety Training. Contractor shall provide suitable operational and safety training for all of its employees who utilize or operate vehicles or equipment for Collection or processing of MSW, Recyclable Materials, and Food Scraps/Green Waste and/or who are otherwise directly involved in such Collection or processing. Such training shall include, but not be limited to, the following: (i) safety training for drivers regarding pedestrian safety and driving where other vehicles are present; (ii) special safety protocols to be implemented when driving past or near any school and in any area where children may be present on their way to or from any school (including avoiding driving in said areas during the times children are present on their way to or from school as required by Section 4.07.0 of this Agreement); (iii) step-by-step handling of Hazardous Waste found in or on trucks, Carts, streets, alleys or any other location including training on specific contact names and direct dial telephone numbers to contact immediately in the event of a Hazardous Waste incident or spill including but not limited to the City Public Works Department, City Fire Department and the County of Orange; (iv) handling of on- board fires in vehicles and fires in Residential Carts; (v) proper protocols for handling spills of any fluid or liquid, any MSW, Food Scraps/Green Waste and/or Recyclable Materials on or leading to any street, alley or parking lot and into any area where there is a likelihood of the spill entering any waterway or pipe, channel or drain that leads to any waterway including storm drains, sewers, the bay, the ocean, creeks, tidal estuaries, wetlands, channels, or any other waterway or water source including names and direct dial telephone numbers to be immediately contacted at the City Public Works Department, -65-
20-76

City Fire Department, County of Orange, and other responsible agencies in the event of such a spill; (vi) training on the dangers of impaired driving due to alcohol, drugs, lack of sleep, fatigue and/or other factors; (vii) training on the dangers of distracted driving and protocols prohibiting the use of texting, telephone and other on -board electronic devices while the vehicle is in motion.

7.05.E No Gratuities. Contractor shall not permit any officer, agent or employee to request, demand or solicit, directly or indirectly, or to accept, either directly or indirectly, any additional compensation or gratuity from members of the public, any City representative or employee, or any other Person or entity for the Collection of MSW, Recyclable Materials, Food Scraps/Green Waste, or any other material under this Agreement.

7.05.G Employee Conduct and Courtesy. Contractor shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. Contractor shall regularly train its employees in Customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection crews to perform the work as quietly as possible. If any employee is found not to be courteous or not to be performing services in the manner required by this Agreement, Contractor shall take all necessary corrective measures, including, but not limited to, transfer, discipline or termination. If City has notified Contractor of a complaint related to discourteous behavior, Contractor shall, upon request of City, reassign the employee to 20-77

duties not entailing contact with the public in the City of Newport Beach while the Contractor is pursuing its investigation or disciplinary process.

7.05.H Provision of Two Recycling/Public Education Coordinators.

Contractor shall provide two (2) full time Recycling and Diversion Program Coordinators ("Recycling Coordinators" or "Coordinator(s)") dedicated solely to Newport Beach to implement Diversion programs in the City for the period of January 15, 2022 through June 30, 2023. Effective July 1, 2023, Contractor shall provide one (1) full-time Recycling Coordinator dedicated solely to Newport Beach through the end of the Term. The minimum duties, work tasks, and requirements for both Recycling Coordinators shall be as described in Attachment U. Each Coordinator will devote 100% of his or her time (the equivalent of at least 2,000 work hours per calendar year) to these activities exclusively for the City.

7.05.H.1 Recycling Coordinator Experience, Background and Training.

Each of the Recycling Coordinators identified in Attachment G, shall have a minimum of one (1) year of experience in the design, implementation and operation of Recycling, Composting and Diversion Programs. This shall not be an entry-level position. In lieu of one (1) year experience as described herein, a Coordinator may have a bachelor's degree in a relevant field such as environmental studies, environmental sciences, ecology, systems ecology or a similar field. Contractor shall provide the following training for both Recycling Coordinators: (i) A certification by a third party approved by City including, but not limited to, the California Resource Recovery Association or the Solid Waste Association of North America; and/or (ii) Contractor's in-house training which shall include -67-
20-78

training modules in the following: the Act, SB 1383 and AB 341; logistics and operation of Diversion programs for Recyclable Materials, Food Scraps/Green Waste, Household Hazardous Waste, and other types of materials; explanation of types of Processing Facilities and processing methods for Recyclable Materials, Food Scraps, Green Waste, and other types of materials; markets and end uses for Diverted materials; training in SB 1383 characterizations of each type of material Collected in City and required on-site field Cart Contamination audits; training on how to conduct the on-site field Cart Contamination audits and record and report results including understanding of what materials are allowed in each Cart and what materials constitute Contamination; specific training in reducing Contamination in Carts by interacting with Residents and community groups and associations, and using all public outreach tools and methods required by this Agreement.

Such training shall also include "shadowing" one or more existing Recycling Coordinator(s) in Newport Beach and/or other city(ies) as they perform all the tasks required and described in Attachment U. If Contractor selects the in-house training option, the in-house training of each Coordinator shall be a minimum of two (2) months in length.

7.05.11-11.2 Documentation of Recycling Coordinator Training. Contractor shall document all in-house training of Recycling Coordinators using Contractor's standard training documentation method(s) and shall maintain records of each type of training for each Recycling Coordinator including dates, times, locations and names of trainers providing the training, for each training module/topic required herein. Contractor shall submit the training documentation to City at the end of the minimum two (2) month 20-79

training period (or sooner if the Coordinator has the required experience and/or degree and is receiving supplemental in-house training by Contractor).

7.05.H.3 Deadline for Providing Two (2) Fully Trained Recycling Coordinators. Contractor shall provide two (2) Recycling Coordinators that are fully trained and experienced as described herein as of the Effective Date of this Agreement.

If Contractor fails to provide two (2) full-time Recycling Coordinators on or before the Effective Date, the liquidated damages in Section 13.09.F shall apply.

Contractor shall notify City, in writing, of the name, education, background and experience, plus the documentation described herein of all in-house training of each Coordinator by Contractor, prior to the Coordinator commencing work. This same information shall also be provided by Contractor whenever there is a change in the staffing of one (1) or both of the Coordinator positions. Upon City request, Contractor shall designate a different Coordinator if a Coordinator does not meet the requirements enumerated herein and/or does not perform all the duties listed in Attachment U in the manner described therein. City may request replacement of a Recycling Coordinator if documented instances including but not limited to, the following occur, (1) repeated complaints from Residents or Customers specifically about the Coordinator; (2) repeated documented requests for actions made by City staff and not acted upon by the Coordinator; (3) documented instances of rudeness, use of profanity, or other unprofessional conduct when the Coordinator is interacting with Residents or Customers; and/or (4) lack of knowledge of, and/or lack of demonstrated use of knowledge of the

requirements of this Agreement, the Act, SB 1383, and/or AB 341 when performing the duties described in Attachment U.

The Coordinators' duties shall include those listed in Attachment U. City reserves the right to prioritize the tasks to be completed as needed throughout the Term of this Agreement and Contractor shall re -direct the work efforts of the Coordinator(s) accordingly.

7.05.1 Provision of Operations and Customer Liaison to City. In addition to the two Recycling Coordinators, the Contractor's representative designated pursuant to Section 14.07.B, and the customer service representatives of Contractor, Contractor shall also provide an Operations and Customer Liaison to City ("the City Liaison") to resolve difficult and/or chronic Customer complaints; persistent, repeated and/or complex Customer billing and payment issues; and other Customer service or City issues that are not being resolved by Contractor's customer service representatives or the Recycling Coordinators in a timely manner. The City Liaison shall work and communicate directly with the City's designated staff person(s) to resolve issues as needed by the City. The City Liaison shall support and assist the Recycling Coordinators in the performance of their duties; personally 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 Divertible Materials; educate Residents about City ordinance requirements and options for source reduction and additional Carts; personally conduct site visits and/or make telephone calls to Residents with repeated service issues to troubleshoot and resolve; coordinate -70-
20-81

between Contractors' operations, customer service, Recycling Coordinators, executive management, and other departments to resolve Customer issues. The Liaison will dedicate the amount of time required such that all service disputes and issues are addressed within one (1) business day. The Liaison shall make all reasonable efforts to return calls from the City (that are received during normal working hours) within four (4) business hours of receipt of the call and in no event later than one (1) business day after receipt of the call. The City Liaison identified in Attachment G shall have a minimum of three (3) years of experience in Collection operations for MSW, Recyclable Materials, Food Scraps/Green Waste Household Hazardous Waste, sharps, E -Waste, Universal Waste and all other material types; dispatch and operational logistics; Customer billing and payments; Processing Facilities; implementation and operation of Recycling, Composting and Diversion Programs; interaction with the public; and knowledge of the requirements of the Act. This shall not be an entry-level position and Contractor shall provide the City Liaison that is fully trained and experienced as described herein on or before the Effective Date of this Agreement.

Contractor shall notify City, in writing, of the name, education, background and experience and a list of three (3) references for the City Liaison prior to the City Liaison commencing work and whenever there is a change in the staffing of the position. Upon City request, Contractor shall designate a different City Liaison if the current or proposed Liaison does not meet the requirements enumerated herein and/or if the City is otherwise dissatisfied with the performance of the designated City Liaison. -71-
20-82

7.05.J Initial Hiring. Prior to commencement of operations, Contractor shall hire the necessary complement of employees. Contractor shall conduct a background check of each applicant, which will, at a minimum, include a check of his/her driving record through the California Department of Motor Vehicles, record of criminal convictions, and references. All applicants shall be required to take a standard test for use of illegal drugs and alcohol as a condition of employment. Drivers shall be required to demonstrate proficiency in the English language. At least one person proficient in spoken English shall be on every Collection vehicle when that vehicle is in service.

Contractor will furnish City with a copy of its training manual and schedule for training of new employees; City may require Contractor to include specific topics in such manual and training program. City may attend and observe any safety or operational training classes. Nothing in this Article 7 shall be construed to give City control over the selection, or supervision of Contractor's employees.

7.05.K Ongoing Training and Testing. Contractor shall provide regular safety training on an ongoing basis including, but not limited to, the safety training listed in Section 7.05.E and shall conduct random drug and alcohol testing of employees in safety -sensitive positions in compliance with regulations issued by the U.S. Department of Transportation.
-72-
20-83

7.05.1- Use of Workers Not Employed by Contractor. If Contractor engages any workers through an independent contractor, such as an employment agency, it shall ensure that such contractor or agency:

1. Complies with the nondiscrimination requirements in Section

14.01; and

2. Maintains Comprehensive General Liability, workers
compensation and Employer's Liability insurance covering such workers in the amounts required by Section 11.02.A and with policies meeting the other requirements of Section 11.02.

Contractor is responsible for providing qualified and competent workers, whether as direct employees or through workers furnished by an independent contractor.

Contractor is also responsible for providing sufficient training to all workers so that they can perform the work in a safe and competent manner and are thoroughly familiar with the work that Contractor is required to perform and the standards it is required to meet, under this Agreement.

All drivers, mechanics, supervisory and managerial workers shall be direct employees of Contractor. The foregoing shall not preclude Contractor from utilizing a temporary employment agency or outside contractor to provide the additional telephone answering/customer service representatives during call surge periods as described in Section 8.04.0 of the Agreement.
-73-
20-84

7.05.M Provision of Senior Manager(s) Responsible For Development and Marketing of Compost and Compost Products.

Contractor shall provide one or more senior manager(s) and technician(s) who are responsible for and directly involved in, tailoring Compost end products for use in agricultural and landscaping markets.

7.05.N Provision of Dedicated Route Supervisor.

Contractor shall provide a Route Supervisor dedicated exclusively to supervising and assisting with Residential Collection services provided in the City of Newport Beach.

The dedicated Route Supervisor shall supervise, support and assist Collection drivers in the performance of their duties; conduct site visits to Residences to resolve issues with overflowing Carts, Non -containerized MSW or Divertible Materials and/or recurring service problems or complaints; coordinate between Contractors' operations, customer service, executive management, and other departments as needed to resolve Customer issues, and respond to emergency situations in the field including, but not limited to, spills, damage to Customer property, safety issues, vehicle breakdowns, collisions, and other events.
-74-
20-85

ARTICLE 8: OTHER COLLECTION -RELATED SERVICES

8.01 Billing.

8.01.A General. City compensates Contractor for providing services provided pursuant to this Agreement as described in Article 12. Contractor shall direct -bill Customers only for Extra Carts and the other optional Extra Services listed in Attachment D-2, at the prices listed in Attachment D-2 (as adjusted during the Term pursuant to Article 12). Contractor shall: (i) maintain accurate direct -billing and payment records; and (ii) bill Customers on a quarterly schedule as approved by City. Customer bills shall be itemized showing the charges for each individual service. Customer billing shall be performed pursuant to the requirements contained in Attachment B, Section 1 and an annual billing audit shall be performed as described in Section 1 of Attachment B.

8.01.8 Content for City Mailings. City may direct Contractor to produce content to include in City -distributed mailers relating to items including, but not limited to, City - sponsored events, integrated waste management activities, other environmental programs, notice of proposed cost increases, and Diversion program changes, at least four (4) times per year.

8.01.0 Delinquent Accounts. Contractor shall be responsible for collecting delinquent charges for the Extra Services listed in Attachment D-2 that it renders to customers. Contractor shall employ measures consistent with federal and California laws regulating the collection of debts, to obtain payment of charges including use of its own -75-
20-86

employees to obtain judgments in Small Claims Court, and to enforce such judgments.

Contractor shall follow the collection procedures described Section 1 of Attachment B.

8.02 Billing Records. Contractor shall keep records of all billing documents and Customer account records including, but not limited to, invoices, Customer payment coupons mailed with the invoice, collection notices, records of online payments, credit card payments and all other billing and payment documents for the entire Term of the Agreement and for five (5) years following the end of the Term or earlier termination of the Agreement. Contractor may, at its option, maintain those records in electronic form, hard copy, or in any other manner, provided that the records can be preserved and retrieved for inspection and verification in a timely manner.

8.03 City Access to Billing Information. Contractor shall promptly provide City with copies of billing information necessary to allow the City to respond to Customer inquiries or complaints or as otherwise required by City within five (5) business days of request.

8.04 Public/Customer Service and Accessibility.

8.04.A Office Hours and Location. Contractor shall maintain an office located either in the City or within a twenty-five (25) mile radius of the City limits. The office will be available for Customers to pay bills, subscribe to service, change service, stop service, change or stop Extra Services, and otherwise contact Contractor. Contractor's office shall be open to the public from 8 a.m. to 5 p.m. Monday through Friday. The office may be closed on Saturdays, Sundays and holidays as defined in this Agreement.

8.04.113 Availability of Representative. A knowledgeable representative of the Contractor shall be available during office hours to communicate with the City and -76-
20-87

members of the public in-person and by telephone and to assist customers making payment in-person.

8.04.0 Telephone. Contractor shall maintain telephone lines with a voicemail and telephone answering system and customer service representatives in operation at its office(s) during office hours as described herein.

8.04.C.1 Call Center and Staffing. The parties acknowledge that Contractor utilizes a call center located at 11292 Western Avenue, Stanton, California that handles calls for all cities served by Contractor in Southern California. As of the Effective Date, the call center is staffed by forty-nine (49) customer service representatives, two (2) supervisors and one (1) manager. Contractor acknowledges and agrees that it is of extreme importance to City that calls from Newport Beach Residents receive prompt, personalized service that is customized (i) to the specific services provided by Contractor in Newport Beach; (ii) to the specific neighborhoods, geography, demographics and clientele of Newport Beach; (iii) is designed to provide a telephone experience as if the customer service representatives were located in Newport Beach; and (iv) is courteous, helpful, and oriented to solving problems as quickly as possible. Contractor shall ensure that throughout the Term of this Agreement, each customer service representative that will be in contact with a Newport Beach Customer, is specifically trained in, and has thoroughly read and understood, each and every piece of public outreach material (including, but not limited to, all hard copy brochures, postcards, letters, mailings, hang tags; all videos and social media posts; all newspaper ads, all press releases from Contractor and City, and all materials that are on City's and Contractor's websites) -77-
20-88

relating to the services provided by Contractor pursuant to this Agreement) that have been provided to Residential Customers via direct delivery to the Resident, the U.S. mail, electronic mail, newspaper ads, social media channels, websites and all other methods of outreach. Said public outreach materials shall include those prepared and provided to Customers by Contractor, those prepared and provided to Customers by City, and those prepared and provided to Customers by a joint effort of Contractor and City.

8.04.C.2 Call Answering, Telephone System Capabilities and Customer Service. Contractor shall utilize call center customer data tracking software and telephone technology such that calls are routed and answered by customer service representatives at the call center as follows: (i) all calls shall be answered by or on the third ring; (ii) the voicemail system shall require the caller to make no more than two (2) selections from the voicemail menu before reaching a live customer service representative or being placed in a "hold" queue; (iii) the number of customer service representatives and the voicemail system shall be designed and maintained to result in an average hold time of ninety (90) seconds or less (average to be calculated on a monthly basis). The telephone system shall be designed and maintained to result in a hold time that does not exceed two (2) minutes during the highest peak volume days and times.

The voicemail/telephone system shall be capable of informing each Customer of their estimated hold time. In the event the hold time exceeds two (2) minutes at any time, the caller shall receive periodic prompts from the telephone system informing the caller they can elect the option of leaving their name and call back number in -lieu of remaining No
20-89

on hold. The periodic prompts will be approximately every ninety (90) seconds. In the event a Customer elects to leave a name and call-back number, the system shall indicate the length of time within which the Customer will receive a call back. Such timeframe shall not exceed sixty (60) minutes. All call-backs to Customers shall be completed by a live customer service representative.

The telephone system utilized shall have the capability to generate detailed information on hold times, non -connected calls, dropped calls, and other key customer service metrics. Contractor shall report all these metrics to City on a monthly basis as described in Attachment K. Additionally, City may request average hold -time and all other metrics at any time and for any period of time. If the average hold time exceeds ninety (90) seconds in any month, the liquidated damages in Section 13.09 of this Agreement shall apply.

Contractor's customer service software system shall be capable of connecting customer service representatives directly with Route Supervisor(s), Collection drivers, the Recycling Coordinator(s), billing specialists and other personnel of Contractor in order to resolve as many issues and complaints as possible while the Customer is on the telephone with the representative. If an issue cannot be resolved immediately by contacting other personnel of Contractor, the customer service representative shall make all reasonable efforts to initiate the process of follow-up on the issue or complaint while the Customer is still on the telephone.

Contractor's call center and customer service system shall be capable of receiving texts or emails from Customers that include still photographs and video. The -79-
20-90

system shall also be capable of sending the Customer still photographs and video from Contractor's Collection driver and/or other sources as part of the problem -solving communication process.

Contractor's call center staff shall update Customer records with notes about each call that shall include, but not be limited to, the date and time of the call, Customer's name and address, the customer service representative handling the call, a detailed description of the issue or complaint, any photographs and/or video sent by the Customer, the City or City's agents, or by Contractor's personnel, noting whether said photos and/or video were sent to the Customer and, if so, by what means, the solution to the problem or the next steps to solve the problem, and the names and positions of all other employees of Contractor who are involved in the issue and/or who are responsible for further research or problem solving to resolve the issue(s). If the Customer is to receive follow-up information, a site visit from Contractor's employee(s), and/or other contact from Contractor, these shall be recorded in the notes of the call along with the date(s) and time(s) conveyed to the Customer for such follow-up. Contractor's telephone and Customer data system shall be capable of generating work orders as well as a listing of all of the follow-up actions promised to Customers, the employee(s) of Contractor assigned to carry out the actions, and the date by which the actions are to completed and reported to the Customer. Said work sheet shall be generated at the frequency that the City requires, and a Supervisor at the call center shall be charged with ensuring all M
20-91

promised follow-up actions are completed within the timeframes promised to the Customer.

If City receives complaints that Customers are unable to reach Contractor's office by phone, or are subject to excessive waiting time "on hold" prior to reaching a customer service representative, City may (in addition to the assessment of liquidated damages described in Section 13.09 of the Agreement) require that Contractor install additional telephone lines and/or provide additional resources at Contractor's sole expense, until the "hold times" meet the requirements herein.

8.04.C.3 Additional Call Center Personnel During Food Scrap/Green Waste Program Rollout, Re-routing of City and New Charges to Customers. During the period from January 15, 2022 through approximately June 30, 2022 the parties anticipate that Customer calls will be at a much higher -than -average volume due to the following changes in service: (a) a change in Collection day for over fourteen thousand (14,000) Residences due to the optimized re-routing of the City by Contractor; (b) a corresponding change in street sweeping days; (c) the delivery of a Food Scrap/Green Waste Cart and kitchen Food Scrap pail with accompanying public education materials to each Residence; (d) initiation of the Collection of Food Scraps/Green Waste from each Residence; (e) notification to Residents that charges for Extra Carts and Extra Services will be instituted as of April 1, 2022 and will be direct -billed to the Customer by Contractor (pursuant to Article 12 and Attachment D-2) commencing with bills mailed April 1, 2022 (unless said date is extended by the City pursuant to Attachment B, Section 1.4.8); and (f) notification to Residents that they will be required to Containerize all MSW, Recyclable ME
20-92

Materials and Food Scraps/Green Waste and will be charged for Collection of Non - Containerized materials after the Grace Period as described in Attachment B, Section

2.7.2. The City and Contractor further acknowledge that the changes listed herein as (a) through (f) follow the distribution of new Recyclable Materials Carts and commencement of Collection of Recyclable Materials at over six -thousand six hundred (6,600) Residences in City that did not have Recyclable Materials Carts. Said distribution and the commencement of Collection of Recyclable Materials at said Residences occurred during the months of September through November 2021 pursuant to a prior contract between the City and CR&R.

Due to the changes that will be experienced by Customers as described herein, the Contractor agrees to provide sufficient additional customer service representatives to City, as needed, during this important period of new program implementation to achieve the telephone answering and customer service metrics described in Section 8.04.C.2. It is the intent of the parties that the Contractor shall handle as many customer service calls as possible and that customer service issues and complaints be resolved by Contractor' s personnel to avoid the Resident escalating the complaint, request and/or question to the City. The parties further agree the goal is for Contractor to provide a level of additional personnel assigned to the City of Newport Beach sufficient to prevent, to the extent reasonably possible, callers becoming frustrated with hold times in Contractor's telephone answering system and calling the City with their questions, requests and/or complaints.

Im
20-93

8.04.C.4 Potential Future Surges in Telephone Volumes In The Event of Additional Program Rollout(s) or Major Service Changes. City and Contractor agree that in the future there may be service changes, new program roll -outs, changes in billing practices, and other such events that will cause an increase in call volumes received by the Contractor above and beyond the normal/baseline number of daily calls from within City. It is the intent of the parties that the Contractor shall handle as many Customer calls as possible and that Customer service issues and complaints be resolved by Contractor's personnel prior to the Resident escalating the complaint to the City.

When either party forecasts that an upcoming service change, new program roll- outs, change in billing practices, and/or other such events will cause an increase in call volumes received by the Contractor, the Contractor will submit a written request to City (or City will request a written submittal from Contractor), at least one hundred twenty (120) calendar days in advance of the start date of the projected increase in customer service call volume, to add temporary customer service staff. Said submittal from Contractor shall include the period of time when additional, temporary customer service staff will be needed; the number of temporary customer service staff that will be needed; the estimated cost of providing additional, temporary customer service staff using the hourly rate set forth in Attachment D-1; forecasted increase in the number of inbound calls; expected call volume each additional customer service representative will be expected to handle; `talking points' and information; and other training materials that the temporary customer service representatives would receive.

The City shall have fifteen (15) calendar days to review Contractor's submittal, request additional information, and discuss the forecasted situation and the submitted 20-94

information with Contractor. City shall notify Contractor of its decision within fifteen (15) calendar days of final receipt of all information and material requested by City. The decision of the City shall be final. In the event City denies a Contractor -initiated request and the events forecasted by Contractor occur and cause an increase in call volumes from Newport Beach Customers such that the required metric not -to -exceed ninety (90) seconds average hold time contained in Section 8.04.C.2 cannot be achieved by Contractor, the liquidated damages in Section 13.09 of the Agreement shall not apply for the period of time contained in Contractor's request. (Waiver of liquidated damages shall only apply to an entire calendar month. For example, if Contractor's request was for the period January 20th — February 15th, and the City rejects Contractor's request, liquidated damages for monthly average hold times in excess of ninety (90) seconds would be waived for January and February).

8.04.C.5 Regular and Emergency Telephone Numbers. Contractor shall maintain an emergency telephone number for use during other than normal business hours and shall provide that number to City for use by City staff. Contractor shall have a representative, or an answering service to contact such representative, available at the emergency telephone number during hours when the office is closed. Contractor shall arrange for a telephone number that is assigned solely to the City of Newport Beach such that call volumes and other metrics described in this Article 8 can be tracked for the City separate from calls received at Contractor's call center from Customers in other jurisdictions. The telephone number shall be listed in all telephone directories generally distributed in the City, all online telephone directories for the City of Newport Beach, on all Contractor's bills and invoices, and on Contractor's website. Additionally, on most 20-95

public outreach materials, signage, and other materials distributed to Residents, the Contractor shall be listed as the main point of contact for Customer questions and complaints unless it is explicitly not applicable to the Contractor's scope of services.

Contractor shall ensure that telephone calls to it from locations within the City are billed as "local calls" by all telephone companies including cellular telephone carriers.

8.04.D Correspondence. Contractor shall respond to all written correspondence including e-mail and other electronic correspondence from City or Customers within one (1) business day. Instructions on Contractor's invoices, website, online bill pay system and all other correspondence to Customers shall indicate the response time of one (1) business day and encourage the Customer to telephone if a faster response is needed.

8.04.E Electronic Subscription for Basic Service, Extra Services and Payment of Bills for Extra Services. Contractor shall provide electronic access to Customers for the following: (i) sign up for basic service (basic service is described in Attachment B); (ii) sign up for any of the Extra Services listed in Attachment D-2, (iii) changes to any Extra Services, (iv) discontinuation of basic service; (v) discontinuation of any Extra Services, and (vi) payment of Bills for Extra Services. Contractor shall accept major credit cards and shall provide direct debit service for payment of bills for Extra Services.

8.04.F Maps, Schedules, Consumer Information. Contractor shall furnish the City with maps and schedules for all Collection routes on or before the Effective Date of this Agreement and shall update such maps and schedules whenever a change occurs.

Im
20-96

Contractor shall have current maps and schedules available for inspection by the public at its business office. Contractor shall submit a new revised set of maps and schedules to City on January 1 of each year of the Term commencing January 1, 2023.

In addition, Contractor shall prepare brochures containing information about the Collection of MSW, Recyclable Materials, Food Scraps/Green Waste including schedules of Collections, curbside procedures, and other useful information and shall distribute such materials as described in Attachment B, Section 4.

Contractor will submit drafts of the maps, schedules and brochures to City prior to distribution and will incorporate City's comments in the final version distributed to the public.

8.04.G Website. Contractor shall provide a website customized for the City of Newport Beach. The website shall include, but not be limited to, descriptions of all of Contractor's services in the City of Newport Beach; notices of special events (such as Christmas tree Collection rules and dates); information on acceptable items in MSW, Recyclable Materials, and Food Scraps/Green Waste Carts and what materials constitute Contamination of each material (including, but not limited to, "how to" videos as described in Attachment X and Section 4 of Attachment B); information on starting, stopping, changing service; information on electronic access as described in Section 8.04.E; information on available Cart sizes; FAA's with answers; and updates for local special circumstances and events including holiday Collection schedules. Contractor shall maintain the website in good working order and shall frequently update the website to ensure it reflects current services, all optional Extra Services and prices, and other 20-97

relevant information at all times. Contractor shall allow City to establish a link on the City website to Contractor's website.

8.05 Service Complaints. Contractor shall be responsible for the prompt and courteous attention to, and prompt and reasonable resolution of, all Customer complaints relating to service and billing. Contractor shall record in a separate log, the format of which must be approved by the City, all complaints, noting the name and address of complainant, date and time of complaint, nature of complaint, and nature and date of resolution. This complaint log shall be available for inspection by City. In addition, Contractor shall compile a summary statistical table of the complaint log (or a copy of the log if requested by City) and submit the table, or copy, to City as part of the monthly reports described in Attachment K beginning with the report for January 2022.

Contractor shall respond to all complaints from Customers within eight (8) working hours of receipt of notice of the complaint. In particular, if a complaint involves a failure to collect MSW, Recyclable Materials and/or Food Scraps/Green Waste from a Residence as required by this Agreement, and the Cart(s) were placed for Collection in accordance with the requirements in Attachment B and City's Municipal Code, Contractor shall collect the MSW, Recyclable Materials and/or Food Scraps/Green Waste the same day if the request was received prior to twelve o'clock noon (12:00 p.m.). If the complaint was received after twelve o'clock noon (12:00 p.m.) Contractor shall Collect the MSW, Recyclable Materials and/or Food Scraps/Green Waste by the end of the following business day. If the complaint is received after normal working hours, Contractor shall respond to the complaint within eight (8) working hours of the time Contractor's employees receive the complaint information (i.e. for a complaint left at 7:00 p.m. on a Im

weekday, Contractor's employees would receive the complaint at 8:00 a.m. the following morning and would respond to the complaint before 4:00 p.m. the same day).

Complaints (other than missed pickups described above) that are not resolved by the customer service representatives through Contractor's usual process within three (3) business days shall be referred to Contractor's City Liaison for concentrated research and resolution. Complaints such as those for missed pickups, Cart replacement, billing issues, and other operational issues that are not resolved to the satisfaction of the City within five (5) business days shall be subject to assessment of liquidated damages pursuant to Section 13.09 of the Agreement. City shall not assess liquidated damages for the following: (i) complaints that are outside Contractor's ability to correct; (ii) complaints about providing services required by this Agreement that are within the timeframes, operating hours and other parameters required of Contractor by this Agreement; (iii) general complaints such as a resident does not like the Food Scrap/Green Waste and/or the Recyclable Materials Collection program or does not like the material containerization requirements; and (iv) complaints about the charges for Extra Carts, Extra Services and/or Non -containerized materials that Contractor is authorized to charge pursuant to this Agreement.

Contractor's City Liaison shall work with the Customer, Contractor's operations, dispatch, billing and all other personnel required to resolve the complaint. The City Liaison shall work with the City representative as needed to discuss and identify options to resolve the complaint. Once the complaint is resolved the City Liaison shall provide photo evidence (where applicable) of the resolution to the City and shall follow up to make sure the complaint is truly resolved for a period of four (4) weeks. This follow up will include re - no
20-99

contacting the Customer to ensure the complaint is resolved and the problem(s) reported have not recurred.

8.06 Customer Service Surveys. Contractor shall conduct Customer service studies to help the City evaluate performance. City shall provide a list of questions that shall be used in the Customer service survey, and a final survey shall be subject to City approval prior to distribution. At Contractor's expense, Contractor shall prepare and mail a survey form/card to each Newport Beach Residence serviced by Contractor pursuant to this Agreement. City will provide Contractor with a Customer mailing list. All survey forms and cards shall be mailed directly from the Resident to the City at Contractor's expense, via business reply mail. City shall share the results of the survey with Contractor. Upon receipt of the results from the initial survey, City and Contractor will meet and discuss the results and how service can be improved by Contractor to address complaints or other criticisms of the service being provided. The first Customer service survey shall be mailed to Customers on or before September 30, 2022. Thereafter, upon City request, Contractor shall conduct additional Customer service surveys, but not more than once every two (2) years, for the remainder of the Term.
20-100

ARTICLE 9: RECORD KEEPING, REPORTING, INSPECTIONS AND
AUDITS

9.01 General. Contractor recognizes that maintenance of accurate and complete records of its operations and timely submission to City of accurate and complete reports is an essential aspect of the services to be provided by it under this Agreement.

9.02 Record Keeping. Contractor shall maintain accurate records of: (i) personnel; (ii) equipment; (iii) Collection operations; (iv) Tonnages for Disposed MSW and Disposed Tons of Residue from the following facilities: Clean MRF and Composting Facility; (v) Diverted Tons of Recyclable Materials, Food Scraps, and Green Waste; (vi) Customer service; (vii) billing and payment; (viii) sale of Recyclable Materials, Compost, and all other revenue -generating products; (ix) financial matters; and (x) other matters in such detail and format necessary to compile the reports required by this Agreement, including, but not limited to, all reports listed in Attachments K and N. All records of activities of Contractor in fulfilling the requirements of this Agreement, including but not limited to the above -listed records, shall be maintained by Contractor for the entire Term of the Agreement. Contractor may, at its option, maintain those records in electronic form, hard M
20-101

copy, or in any other manner, provided that the records can be preserved and retrieved for inspection and verification in a timely manner.

9.03 Reporting. Contractor shall compile and submit to City complete and accurate reports required by this Agreement, including but not limited to the following:

9.03.A Reports Listed in Attachment K. Monthly, quarterly and annual reports of Tonnages, Collection and Diversion operations, and other items.

9.03.113 Reports Listed in Attachment N. Results of Characterization Studies of all Processing Facilities and the Disposal Facility, and results of all On -Site Field Container Contamination Audits.

9.04 Inspection by City. The City shall have the right, but not the obligation, to observe and inspect all of the Contractor's operations involved in providing services under this Agreement to determine whether Contractor is performing in accordance with this Agreement and applicable laws and regulations. Contractor shall cooperate fully with such inspections, including inspections and observations of operations at all Processing Facilities. In connection therewith, the City shall have the right to enter any of Contractor's facilities, observe operations for an unlimited amount of time, photograph operations and record by both written and electronic media such observations, obtain measurements and determine the quality of Recovered and/or processed materials. Where photo- documentation or other media capture is required by City or its agents to verify Contractor's claims and/or reported tonnages, Diversion or other information, such material shall be stored at Contractor's facility in a location secured to Contractor's satisfaction. The City shall have the right to speak with any of Contractor's employees, -91-
20-102

where it is necessary to obtain clarification or pertinent detail that can best be provided by the employee(s), and to receive a response to any inquiries directed to such employees; and review and make copies (at City's expense) of any and all of Contractor's operational and business records related to this Agreement. If City so requests, Contractor shall make specified personnel available to accompany City employees and/or City's agents on inspections. City's access to, and observation of activities and operations at each Processing Facility, shall not be restricted or impaired in any way by Contractor.

City may periodically investigate Contractor's financial status to determine Contractor's financial capacity to continue to perform in accordance with this Agreement.

Such investigations will be done at the sole expense of City, using such City employees or independent agents as City deems appropriate. Contractor shall cooperate during such investigations and shall make available for inspection such records as the City, its agents and/or authorized personnel, may request as it pertains to the determination of Contractor's financial capacity and capability.

Contractor shall maintain a complete roster of employees providing service under this Agreement. The roster shall contain the name, employee number, job classification and such other information as City may require. The City may inspect the roster, and make a copy thereof at its expense, at any time during business hours. City shall have the right to observe Carts of MSW, Recyclable Materials, Food Scraps/Green Waste, and all other materials for the purpose of conducting waste audits, characterization audits and Contamination audits as needed during the Term.
-92-
20-103

9.05 Compliance Reporting. Contractor shall submit monthly, quarterly and annual reports to the City documenting the disposition of MSW, Recyclable Materials, Food Scraps/Green Waste, and Compost, and shall format such reports so that they may be used by the City for City's compliance with the reporting requirements of the Act or any other subsequently enacted federal, state or local laws, rules, or regulations governing integrated waste management. Contractor shall also comply with all requirements of AB 901 (PRC Sections 41821.5-41821.8) as it may be amended, and all regulations promulgated thereto, regarding reporting Tons to CalRecycle, the City and other agencies. The aggregation of tonnages permitted by AB 901 shall not alter any of Contractor's reporting requirements in this Agreement. The confidentiality provisions of AB 901 shall not apply to any of Contractor's reports submitted pursuant to this Agreement. All Contractor's reports are subject to audit by City, or by a third -party designated by City. The accuracy of all required reports to be submitted by Contractor is of paramount importance to City. Such reports show how Contractor is tracking and allocating Diverted Tons, Disposed Tons, Residue Tons and Tons delivered to, and marketed from, Processing Facilities. The number of Tons Diverted and Disposed directly impacts both the City's Diversion required by the Act, and the City's costs of Diversion and of compliance with the Act. Therefore, Contractor shall make available all necessary documents and information in order for the City to audit, analyze and review any tonnage discrepancies or any other discrepancies, in Contractor's calculations, allocations, tonnage tracking and submitted documentation and records as it pertains to this -93-
20-104

Agreement, including all reporting required of City by all federal and state agencies and by any other laws.

9.05.A Material Discrepancy in Data Reported.

In the event that City discovers any material discrepancy in Contractor's reported Diversion, Disposal, Tonnages, or any reported data required by this Agreement, City will notify Contractor and Contractor shall have fourteen (14) calendar days to explain or otherwise resolve the discrepancy or discrepancies to the satisfaction of City. If there remains any doubt or question about the accuracy of Contractor's calculations, allocations, documentation or disposition of Tons of MSW, Recyclable Materials, Green Waste, Food Scraps, Compost, or any other materials, City may undertake a detailed examination of all information, documentation, calculations and other data.

Contractor shall reimburse City's actual costs up to seventy-five thousand dollars ($75,000) in each calendar year for such analysis, research, and review. Contractor shall cooperate fully with City's efforts and shall provide in a timely manner all additional City - requested documentation, information, and records (both electronic and hard copy) and shall provide access to all City requested documents and records both of Contractor and of the Processing Facilities used to process Tons Collected in City.

City will invoice Contractor for the actual cost of said review and Contractor shall pay the invoice within thirty (30) days of receipt. In the event that Contractor fails to pay City's invoice within thirty (30) days of receipt, the liquidated damages listed in Section 13.09 20-105

for late payment shall apply and City may deduct the unpaid balance from Contractor's monthly compensation payment.

9.06 Annual Route Audit. Contractor shall conduct an annual audit, during the month of April of each year of this Agreement, of all Collection routes for MSW, Recyclable Materials, and Food Scraps/Green Waste. The audit shall include, at a minimum: (i) the route number, (ii) identification number of vehicles servicing each route, (iii) number of Customers serviced by route and by truck, (iv) number and sizes of Carts Collected together with the frequency of Collection by route and by truck, (v) weight of MSW Collected, (vi) weights by route and by truck of Single -Material Recyclables, Single Stream Recyclable Materials, and Food Scraps/Green Waste, (vii) densities for all routes including each material type on each route audited, in pounds per cubic yard, and (viii) any pertinent operational details. Results of the route audit shall be delivered to City in their entirety, including, but not limited to, maps of routes with each route numbered, survey sheets, logs, route lists, forms used to gather information, and other similar documents, within ten (10) working days of completion of the audit, and in no event later than May 20 of each year of the Term. The initial audit shall be performed in April 2022 with the report due by May 20, 2022. Said audit may be undertaken directly by Contractor -95-
20-106

or on behalf of Contractor by another party, but in either event shall be completed at Contractor's sole expense.

9.07 Characterization Studies and In -Field Container Contamination Audits.

Contractor shall conduct the following characterization studies and audits as described in Attachment N:

9.07.A Characterization Studies. Contractor shall conduct characterization studies of the streams of materials being delivered to each Processing Facility and of the MSW being delivered to the Disposal Facility, using the protocols and at the frequencies described in Attachment N. The first Processing Facility characterization studies shall be conducted during 2022 as described in Attachment N. The characterization study reports shall include the items listed in Attachment N and be submitted to City at the frequencies and on the due dates described therein. City shall have the right to have City staff or City's representatives present during any of the studies. Contractor shall give City a minimum of thirty (30) calendar days written notice of the date(s), time(s) and location(s) where Contractor shall conduct each study. The characterization studies and the reports on results shall be performed and prepared at Contractor's sole expense.

The results of the characterization study shall be put into use the first day of the month following submittal of the report to the City and approval of the report and allocation method by City, and shall be used to report Tons Diverted and Disposed by each Processing Facility for the City of Newport Beach in the monthly reports submitted to City pursuant to Attachment K. Such results shall be used to report Tons Diverted and Disposed by each Processing Facility for the City of Newport Beach until the results of we
20-107

the next characterization study are approved by City. If and when Contractor is required to report to CalRecycle or any other agency, jurisdiction -specific Tons Diverted and Tons of Residue for each Processing Facility used by Contractor to process City's materials, Contractor shall report to CalRecycle figures that are consistent with the results of the Processing Facility characterization studies described herein.

9.07.6 In -Field Container Contamination Audits. Contractor shall also conduct on-site field Container Contamination audits at Residential Customers, using the protocols and at the frequencies described in Attachment N. The Contamination audit reports shall include the items listed in Attachment N and be submitted to City at the frequencies and by the due dates described therein. In -field Contamination audits shall commence as described in Attachment N. City shall have the right to have City staff or City's representatives present during any of the audits. Contractor shall give City a minimum of thirty (30) calendar days written notice of the date(s), time(s), and locations/neighborhoods/routes where Contractor shall conduct each study. The audits and the reports on results shall be performed and prepared at Contractor's sole expense.

9.08 Annual City Review of Contract Audits and Results. Each year of the Term, City shall have the right, but not the obligation, to conduct a review of the procedures used to perform all audits and characterization studies described in this Article 9 (including those in Attachment N) and the results of said audits and studies. If City desires to review the audit and/or study results and/or procedures, City will contact Contractor to schedule a meeting or series of meetings to discuss the procedures and results. At City's sole discretion, Contractor shall change the audit and/or study protocol, timing and frequency -97-
20-108

as directed by City and shall put such changes into effect with the next audit and/or study.

If either party believes the change will increase or decrease Contractor's costs, the provisions of Section 4.11 and Section 12.05 of this Agreement shall apply. City's review of audit and study procedures may include review of Contractor and Processing Facility records and on-site visits to Contractor's facilities and Processing Facilities. City's access to, and observation of activities and operations at each Processing Facility shall not be restricted or impaired in any way by Contractor.

9.09 Reporting of Adverse Information. Contractor shall immediately provide the City three (3) copies (one to the Public Works Director, one to the City Manager and one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications or other material relating specifically to Contractor's performance of services pursuant to this Agreement, submitted by Contractor to, or received by Contractor from, the United States, U. S. Environmental Protection Agency, California Environmental Protection Agency, CalRecycle, the Local Enforcement Agency, the Securities and Exchange Commission or any other federal, state or local agency, including but not limited to any federal or state court, and all agencies regulating Processing Facilities owned or operated by Contractor used for processing Diverted materials pursuant to this Agreement. Contractor's routine correspondence with said agencies need not be submitted to City, but shall be made available to the City promptly upon City's written request.
20-109

ARTICLE 10: INDEPENDENT CONTRACTOR

10.01 Contractor an Independent Contractor. In the performance of services under this Agreement, the Contractor shall be, and is, an independent contractor, and is not an agent or employee of the City. Contractor has and shall retain the right to exercise full control over the employment, direction, compensation and discharge of all Persons assisting Contractor in the performance of Contractor's services hereunder. Contractor shall be solely responsible for all matters relating to the payment of its employees, including compliance with social security, withholding and all other regulations governing such matters, and shall be solely responsible for Contractor's own acts and those of Contractor's employees and other agents. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance of the services required by this Agreement or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City to ensure compliance with the Act, CalRecycle's requirements, and Contractor's performance under this Agreement with respect to the results of the services required to be provided.

10.02 No Partnership or Joint Venture Created. Nothing in this Agreement shall be construed as creating a partnership or joint venture between the City and Contractor, or as giving the City a duty to supervise or control the acts or omissions of any Person performing services or work under the Agreement.

10.03 No Entitlement to City Benefits. Neither Contractor nor its officers, employees, agents or subcontractors shall be entitled to any retirement benefits, workers' compensation benefits or any other benefits which accrue to any City employees, and Contractor expressly waives any claim it may have to acquire such benefits. Contractor 20-110

agrees to defend and indemnify City for any claims or demands brought by Contractor's officers, employees, agents or subcontractors against City for such benefits. -100-
20-111

ARTICLE 11. INDEMNITY, INSURANCE, BOND

11.01 General Indemnification. Contractor 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 heirs and assigns (collectively "Indemnified Parties") from and against any and all claims (individually "a claim", collectively "claims") including, without limitiation, 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 every kind and nature whatsoever which may arise from or be in any way related directly or indirectly to City entering into this Agreement with Contractor, Contractor's breach of its obligations under this Agreement, or Contractor'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 Contractor and other Persons.

Upon the occurrence of any Claim, Contractor, at Contractor's sole cost and expense, shall defend (with attorneys reasonably acceptable to City) City, its officers, employees, and agents. Nothing in this indemnity shall be construed as authorizing any 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 indemmification -101-
20-112

to be provided by Contractor. Contractor'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, Contractor 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 Collection of Municipal Solid Waste, arising out of the exercise of this Agreement by Contractor, (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 11.05 below concerning Hazardous Waste. City and Contractor agree to confer following any trial as to whether to appeal, or to oppose any appeal. Should either City or Contractor decide to appeal, or to oppose appeal, and the other decide not to appeal, or to 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.

11.02 Insurance.

11.02.A Types and Amounts of Coverage. Without limiting Contractor's indemnification of City, Contractor shall obtain, provide, and maintain at it's own expense during the term of this Agreement, a policy or policies of liability insurance in the types and amounts listed in this Section 11.02 and in a form acceptable to City, from an -102-
20-113

insurance company or companies licensed to do business in the State of California. If Contractor maintains higher limits than the minimums listed in this Section 11.02, the City shall be entitled to coverage for the higher limits.

11.02.A.1 Workers' Compensation and Employer's Liability. Contractor shall maintain workers' compensation insurance covering its employees in statutory amounts and otherwise in compliance with the laws of the State of California. Contractor shall maintain employer's liability insurance in an amount not less than One Million Dollars ($1,000,000) per accident or disease. Contractor shall not be obligated to carry workers compensation insurance if (i) it qualifies under California law and continuously complies with all statutory obligations to self - insure against such risks; (ii) furnishes a certificate of Permission to Self Insure issued by the Department of Industrial Relations; and (iii) furnishes updated certificates of Permission to Self Insure periodically to evidence continuous self insurance.

11.02.A.2 Comprehensive General Liability (and Automobile Liability).

Contractor shall maintain comprehensive general liability insurance with a combined single limit of not less than Ten Million Dollars ($10,000,000) per occurrence and Ten Million Dollars ($10,000,000) annual aggregate covering all claims and all legal liability for personal injury, bodily injury, death, and property damage, including the loss of use thereof, arising out of, or occasioned in any way -103-
20-114

by, directly or indirectly, Contractor's performance of, or its failure to perform, services under this Agreement.

The insurance required by this subsection shall include:
(i) Premises Operations (including use of owned and non - owned equipment);
(ii) Products and Completed Operations (including protection against liability resulting from use of Recyclable Materials by another Person);
(iii) Personal Injury Liability with employment exclusion deleted; (iv) Broad Form Blanket Contractual with no exclusions for bodily injury, personal injury or property damage (including coverage for the indemnity obligations contained herein); (v) Owned, Non -Owned, and Hired Motor Vehicles;
(vi) Broad Form Property Damage.

The comprehensive general liability insurance shall be written on an "occurrence" basis (rather than a "claims made" basis) in a form at least as broad as the most current version of the Insurance Service Office commercial general liability occurrence policy form (CG0001). If occurrence coverage is not obtainable, Contractor shall arrange for "tail coverage" on a "claims made" policy to protect City from claims filed within four (4) years after the expiration or termination of this Agreement relating to incidents that occurred prior to such expiration or termination. Any excess or umbrella policies shall be on a "following form" basis.

11.02.A.3 Pollution Liability. Contractor shall maintain pollution liability insurance to include onsite, under -site and offsite coverage for bodily injury (including death and mental anguish), property damage, regulatory fines, defense costs and cleanup costs with minimum limits of Five Million Dollars ($5,000,000) each loss and Ten Million Dollars ($10,000,000) in the aggregate covering claims -104-
20-115

as a result of pollution conditions arising out of its operations under this Agreement.

Non -owned Disposal site coverage shall be provided if Contractor is handling, storing or generating Hazardous Waste or hazardous materials or any material or substance otherwise regulated under environmental laws or regulations.

11.02.A.4 Physical Damage. Contractor shall maintain comprehensive (fire and theft) physical damage insurance covering the vehicles and equipment used in providing service to City under this Agreement, with a deductible or self- insured retention not greater than One Hundred Thousand Dollars ($100,000).

The deductible limit may be increased by City with acceptable proof of self- insurance. Notwithstanding the foregoing, Contractor shall be allowed to self - insure for physical damage to its vehicles provided Contractor provides adequate audited financial information to City and City is reasonably satisfied that Contractor has the financial net worth to cover any losses.

11.02.6 Acceptability of Insureds. The insurance policies required by this section shall be issued by an insurance company or companies admitted to do business in the State of California, subject to the jurisdiction of the California Insurance Commissioner, and with a rating in the most recent edition of A. M. Best's Insurance Reports of size category VIII or larger and a rating classification of A or better.

11.02.0 Required Endorsements. Without limiting the generality of Sections

11.02.A and B, the policies shall contain endorsements making the City and its elected -105-
20-116

or appointed officers, officials, employees, agents and volunteers an additional insured, and shall further contain additional endorsements in substantially the following form:

2. Workers' Compensation and Employers' Liability Policy. "Thirty (30) days prior written notice shall be given to the City of Newport Beach in the event of cancellation or non- renewal of this policy. Such notice shall be sent to:

CITY OF NEWPORT BEACH
Public Works Director
P.O. Box 1768
100 Civic Center Drive
Newport Beach, California 92660
"Insurer waives all right of subrogation against City
and its elected or appointed officers, officials, employees, agents and volunteers for injuries or illnesses arising from work performed for City."

3. Comprehensive General Liability Policy; Pollution Liability Policy.
"Thirty (30) days' prior written notice shall be given to the City of Newport Beach in the event of cancellation, reduction of coverage, or non -renewal of this policy. Such notice shall be sent to:

CITY OF NEWPORT BEACH
Director of Public Works
P.O. Box 1768
100 Civic Center Drive
Newport Beach, California 92660
"This policy shall be considered primary insurance as respects any other valid and collectible insurance maintained by the City of Newport Beach, including any self-insured retention or program of self-insurance, and any other such insurance shall not be called upon to contribute in any way."
"Inclusion of the City of Newport Beach as an insured shall not affect the City's rights as respects any claim, demand, suit or judgment brought or recovered against the -106-
20-117

Contractor. This policy shall protect Contractor and the City in the same manner as though a separate policy had been issued to each, but this shall not operate to increase the company's liability as set forth in the policy beyond the amount shown or to which the company would have been liable if only one party had been named as an insured." In addition, all property policies shall contain language, to the extent obtainable on commercially reasonable terms, to the effect that any loss shall be payable notwithstanding any act of negligence of City or Contractor that might otherwise result in the forfeiture of the insurance.

4. Physical Damage Policy.

Notice of cancellation, reduction in coverage or non -renewal, as provided in Section

11.02.0 Cross liability endorsement, as provided in Section 11.02.0 Waiver of subrogation against City.

11.02.D Delivery of Proof of Coverage. No later than ten (10) calendar days after execution of this Agreement by both parties, Contractor shall furnish City one or more certificates of insurance on a standard ACORD form and required endorsements substantiating that each of the coverages and endorsements required hereunder are in force, in form and substance satisfactory to City. Such certificates shall show the type and amount of coverage, effective dates and dates of expiration of policies and shall be accompanied by all required endorsements. If City requests, copies of each policy, together with all endorsements, shall also be promptly delivered to City in one complete package. Contractor shall furnish renewal certificates to City to demonstrate maintenance of the required coverages throughout the Term. Each year on or before the renewal date for all insurance policies required herein, Contractor shall deliver to City a -107-
20-118

new package containing all insurance certificates with all of the required endorsements and copies of all insurance policies required by this Agreement.

The Contractor 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 withheld or delayed unreasonably.

11.02.E Other Insurance Requirements.

1. In the event performance of any service is delegated to a subcontractor, Contractor 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. The liability insurance required by Subsection 11.02.A.2 shall cover all subcontractors or the subcontractor must furnish evidence of insurance provided by it meeting all of the requirements of this Section 11.02. This requirement shall not apply to subcontractors providing non -operational incidental support services to Contractor such as uniforms, uniform cleaning and janitorial services but shall apply to all other subcontractors.

2. Contractor shall comply with all requirements of the insurers issuing policies. The carrying of insurance shall not relieve Contractor from any obligation under this Agreement, including those imposed by Section 11.01. If any claim is made by any third Person against Contractor or any subcontractor on account of any occurrence m
20-119

related to this Agreement, Contractor shall promptly report the facts in writing to the insurance carrier and to the City.

3. If Contractor fails to procure and maintain any insurance required by this Agreement, City may take out and maintain, at Contractor's expense, such insurance as it may deem proper and deduct the cost thereof from any monies due Contractor. Alternatively, the City may treat the failure as a Contractor Default, and not subject to any applicable cure period.

4. City is not responsible for payment of premiums for or deductibles under any required insurance coverages.

5. The Parties acknowledge that the market for insurance is subject to unforeseeable events which can affect the amount of coverage needed and pricing therefor. Accordingly, in the event the City's Risk Manager determines that the services under this Agreement create an increased or decreased risk of loss to the City, Contractor agrees that the minimum limits of the insurance policies required by this section may be changed accordingly upon receipt of written notice from the City's Risk Manager; provided that Contractor shall have the right to appeal a determination of increased coverage to the City Council of City within ten (10) days of receipt of notice from the City's Risk Manager.

11.03 Faithful Performance Bond. Not later than ten (10) days after execution of this Agreement by both parties, Contractor shall file with City a bond securing the Contractor's faithful performance of its obligations under this Agreement. The principal sum of the bond shall be Three Million Dollars ($3,000,000). The form of the bond shall be as set -109-
20-120

out in Attachment L. The bond shall be executed as surety by a corporation admitted and licensed to issue surety bonds in the State of California, regulated by the California Insurance Commissioner and with a rating in the most recent edition of A.M. Best's Surety Bond Company Reports of A -VII or better.

The term of the bond shall be not less than twelve (12) months. The bond shall be extended, or replaced by a new bond in the same principal sum, for the same term (i.e., twelve (12) months) and in the same form, annually thereafter. Not less than ninety (90) days before the expiration of the initial bond, the Contractor shall furnish either a replacement bond or a continuation certificate substantially in the form attached as Attachment M, executed by the surety.

It is the intention of this Section 11 that there be in full force and effect at all times a bond securing the Contractor's faithful performance of the Agreement, throughout its Term.

11.04 Alternative Security. City may, in its sole discretion, allow Contractor to provide alternative security in the amount set forth in Section 11.03, in the form of (a) a prepaid irrevocable standby letter of credit in form and substance satisfactory to City and approved by the City Attorney and issued by a financial institution acceptable to City, or (b) a certificate of deposit in the name of the City with a term satisfactory to City and with a financial institution acceptable to City.

11.05 Hazardous Waste Indemnification.

A. Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically -110-
20-121

agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnify, and hold City and its past and present officers, council members, employees, consultants and agents (hereinafter "Indemnified Parties") harmless from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that:

1. Results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnified Party is liable, responsible or in any way obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Waste (as defined herein); or

2. Relates to material Collected, transported, Recycled, processed, treated or Disposed of by Contractor.

B. Contractor's obligations pursuant to this section shall apply, without limitation, to:

1. Any Claims brought pursuant to or based on the provisions of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 -111-
20-122

U.S.C. § 6901 et seq., the California Hazardous Substances Account Act (California Health & Safety Code Sections 25300 et seq.), the California Hazardous Waste Control Laws (California Health & Safety Code Sections 25100 et seq.), the California Porter - Cologne Act (California Water Code Section 13000 et seq.), and any and all amendments and regulations thereto, and any other Federal, State, regional or local environmental statutory or regulatory provision;

2. Any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation of Contractor of any facility;

3. Any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, Disposal, processing or use of any materials recovered by Contractor;

4. Any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement.

C. The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any Affiliate of Contractor.

D. For purposes of this Agreement, the term "Hazardous Waste" includes, 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, -112-
20-123

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 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 -113-
20-124

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.

E. The provisions of this section shall not terminate or expire, shall be given the broadest possible interpretation and shall survive the expiration or earlier termination of this Agreement.

11.06 Integrated Waste Management Act Indemnification. The parties agree that Contractor's implementation of all programs in Attachment B is vital to the City's compliance with the Act. Therefore, Contractor agrees to indemnify and hold harmless the Indemnitees against all fines and/or penalties imposed by CalRecycle and/or the Air Resources Board: (i) based upon Contractor's failure to comply with laws, regulations or permits issued or enforced by CalRecycle, the Air Resources Board or the City; (ii) caused or contributed to by the Contractor's failure to perform its obligations under this Agreement, including, but not limited to, implementation of all programs in Attachment B in the timeframes required. This indemnity obligation is subject to the limitations and -114-
20-125

conditions in Public Resources Code Section 40059.1 but is enforceable to the maximum extent allowable by that Section. In the event that CalRecycle and/or the Air Resources Board imposes penalties, fees and/or sanctions against City, Contractor shall, in addition to paying the fines and penalties, pay all City's costs and fees for staff time, consultants, attorneys and all other costs of defending and resolving the issue of CalRecycle and/or the Air Resources Board issuing fines, penalties and/or sanctions against City.

11.07 Intellectual Property Indemnification. Contractor agrees to indemnify, hold harmless and defend the Indemnitees against any and all liability, including costs, for infringement of any United States' letters patent, trademark or copyright infringement.

11.08. Notice of Claim. City agrees to provide timely notice to Contractor when the City receives a claim for damages or other liability for which Contractor has provided indemnification pursuant to this Agreement. Contractor shall give City prompt and timely notice of claim(s) made or suit instituted arising out of or resulting from Contractor's performance under this Agreement.
-115-
20-126

ARTICLE 12: COMPENSATION TO CONTRACTOR

12.01 General. Contractor shall perform the services required by this Agreement in consideration for: (i) payments from City listed in Attachment D-1 as they may be adjusted as provided in this Article, (ii) direct payments from Customers for Extra Services and for Collection of Non -containerized materials as described in Attachment B and listed in Attachment D-2, as they may be adjusted as provided in this Article, and (iii) the right to retain all revenues, if any, from the sale of Recyclable Materials, Green Waste, Food Scraps, Wood and the Compost and Compost Products created from such materials. The revenues received from these sources shall be the full, entire and complete compensation due to Contractor for all labor, equipment, materials, supplies, taxes, insurance, bonds, overhead, Disposal costs, transfer costs, processing costs, profit and all other things necessary to perform all the services required and reasonably anticipated by this Agreement in the manner and at the times prescribed. Except as expressly provided herein or in Attachments D-1 and D-2, Contractor shall be responsible for all other costs and expenses related to Contractor's performance under this Agreement.

12.02 Initial Costs. The costs City shall pay to Contractor for services provided commencing January 15, 2022 shall be those set forth in Attachment D-1. These costs were based upon, and calculated in, an Excel spreadsheet containing several tabs which was used by the parties to negotiate and arrive at the costs City shall pay Contractor for services rendered pursuant to this Agreement. The costs in Attachment D-1 shall remain -116-
20-127

in effect through June 30, 2022 at which time the annual adjustments described in this Article 12 shall be made to the costs in Attachment D-1 to become effective July 1, 2022.

Contractor may bill Customers directly for any Extra Carts and any Extra Services the Customer subscribes to beginning April 1, 2022, at the prices listed in Attachment D-

2. Contractor shall not bill any customers for Extra Services or Extra Carts during the period January 15 through March 31, 2022. At City's sole discretion, City may invoke an Extra Services Charge Delay Period to extend the period of time that Contractor does not direct -bill Customers for Extra Carts or for any Extra Services. The process for City to invoke this Delay Period is described in Attachment B. During any City -invoked Extra Services Charge Delay Period, City shall pay Contractor directly for all Extra Carts and all Extra Services being provided by Contractor to Customers. City shall pay such costs to Contractor on a monthly basis at the prices listed in Attachment D-1.

Contractor may bill Customers directly for incidents of non -containerization of MSW, Recyclable Materials, and/or Food Scraps/Green Waste after the expiration of the Grace Period as more fully described in Attachment B. As described in Attachment B, the initial Grace Period is January 15, 2022 through February 14, 2022. The Grace Period may be extended at the sole discretion of the City. During the Grace Period (and any City - directed extensions to the Grace Period) the City shall pay Contractor for Collecting non - containerized materials at the prices listed in Attachment D-1.

The prices in Attachment D-2 shall be in effect from January 15, 2022 through June 30, 2022. Prior to July 1, 2022, the annual adjustments described in this Article 12 shall be made to the prices in Attachment D-2 to become effective July 1, 2022. In the event -117-
20-128

Contractor is found to be charging any price to any Customer(s) that is not included in Attachment D-2 or is not the correct price as shown in Attachment D-2, Contractor shall, upon realization of this fact or upon receipt of notification from City, refund all non - authorized charges to all affected Customers within thirty (30) days. In the event Contractor has charged a higher price than authorized by the City pursuant to this Agreement, the difference between the price charged and the City -approved price shall be refunded. In the event Contractor has charged a lower price than authorized by the City, Contractor shall not charge the Customer for the difference between the price charged and the City -approved price; however, Contractor shall notify the Customer and give the Customer the option to continue to receive the service at the City -approved price, or to arrange for a different Extra Service or a different level of Extra Service, or to cancel the Extra Service. In such event, Contractor shall assist the Customer in selecting the most cost-effective level of the Extra Service and City -approved price available. Upon City request, Contractor shall provide City with a summary of all instances of non -City - approved prices being charged, and the refunds or other adjustments made for Customers.

If there is an Extra Service that Contractor believes it is required to provide and for which there is no City -approved price in Attachment D-2, Contractor shall notify City. The City may, in its sole discretion, establish a price for the new Extra Service, following completion of any proceedings required under Article XIIID, Section 6, of the California Constitution or other applicable law. Unless and until City establishes a price for such Extra Service, Contractor shall not provide nor charge for the service. City shall have no obligation or duty to establish a price for such new or additional Extra Service. -118-
20-129

12.03 Annual Adjustments to City Payments to Contractor and to Prices Contractor May Charge Via Direct Bill to Customers. The costs for service as set forth in Attachment D-1 and the prices direct -billed by Contractor to Customers set forth in Attachment D-2 shall be adjusted as of July 1, 2022 and as of July 1 for each ensuing year of the Term (including any extensions of the Term pursuant to Section 6.06 of the Agreement) in accordance with Attachment J, following completion of any proceedings required under Article XIIID, Section 6 of the California Constitution, and contingent upon the City not receiving a majority protest against the rate increase as part of such proceedings.

The City and Contractor recognize that an increase in costs and/or prices established under this Agreement may be considered fees or charges for property -related services pursuant to California Constitution Article XIIID. If a proposed cost and/or price adjustment may not be enacted as a result of a protest pursuant to Article XIIID, Section 6, or if costs and/or prices in effect are reduced as a result of an initiative measure authorized by Article XIII.C, Section 3, the City's inability to increase or maintain the costs and/or prices as contemplated shall not constitute a breach of this Agreement. The parties shall promptly meet and confer in good faith to determine how best to respond to such an occurrence.

12.04 Disposal Charge (Tip Fee) Adjustments. If the tip fee charged at Orange County Landfills (or at whatever City -designated Disposal Site is then in use) is changed (increased or decreased) for whatever reason including, but not limited to, new or increased taxes or regulatory fees, the Disposal portion of Contractor's costs shall be adjusted according to the instructions provided in Attachment J, following completion of -119-
20-130

any proceedings required under Article XIIID, Section 6 of the California Constitution, and contingent upon the City not receiving a majority protest against the cost and/or price increase as part of such proceedings. Disposal Charges are a pass-through cost and Contractor shall not be entitled to receive or charge any profit, markup, overhead or administrative costs on Disposal Charges.

12.05 Adjustments to Costs Based on City -Directed Changes In Scope of Work. If the City has directed a change in the scope of work pursuant to Section 4.11 and either party believes that such change will increase or decrease the costs of providing service, the party which believes Contractor's costs should be adjusted shall, within thirty (30) calendar days after issuance of the notice of scope change, submit to the other party a proposed adjustment with complete supporting documentation of the cost calculations therein, and the parties shall thereafter meet and discuss the matter. City may request additional documentation, calculations and other information from Contractor in order to analyze information submitted by Contractor, or in order to make its own internal calculations of the cost change. Once the parties have formulated a cost adjustment, the City Council shall review the proposed adjustment and in the City Council's sole discretion, make the determination as to the appropriate amount of the adjustment. Only changes in Contractor's costs will be considered. When calculating the cost adjustment for a City -directed change of scope, no adjustment will be made to Contractor's compensation due to loss or reduction in any of the following: (i) Contractor's profits, (ii) Contractor's revenues including, but not limited to, Processing Fees at a Contractor- -120-
20-131

owned and/or Contractor -operated Processing Facility; and (iii) revenues from the sale of Recyclable Materials, Compost, Food Scraps, Wood, and/or Compost Products.

12.06 Contractor Invoicing and Payment. Contractor shall submit monthly invoices to City for services provided pursuant to this Agreement. All invoices submitted shall be accompanied by all of the following reports and information for the preceding month, in the format shown in Attachment Y (or a similar format approved by City): (i) a summary cover sheet listing invoiced amounts for each of the categories listed in Attachment D-1 for the preceding month; (ii) spreadsheet showing quantities of each type of Diverted materials, MSW, Bulky Items, transfer station "disaster tons", total landfilled tons and the Residential Diversion percentage (as well as totals for year-to-date of all the preceding information) of all services performed; (iii) the transfer station solid waste processing reporting form; (iv) Newport Beach Hazardous Waste exclusion program report (Newport Beach Load Check Report); (v) household hazardous waste (HHW) material report; (vi) sharps report; (vii) complaint report; (viii) Newport Coast collection area residential summary report; and (ix) monthly detail for Collection of non - containerized materials. Submittal of the invoice shall be deemed "complete" when the City has received the invoice with all the accompanying reports and information described in Attachment Y. City shall pay the invoice within thirty (30) calendar days from the date the complete invoice is received. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Contractor to the address in Section 14.06 of this Agreement or when electronic payment of the invoice is confirmed by City's bank or financial institution.
-121-
20-132

12.07 Additional Residences Added During the Term.

12.07.A Neighborhoods Served by Third Party. As of the Effective Date, there are three (3) areas of the City that contain large groups of Residences (both single family and Multi -Family, some of which are in HOA's and/or gated communities) that are being provided MSW and Recycling Collection services by a third -party company holding a non-exclusive commercial franchise approved by the City. The areas of the City are shown in the maps in Attachment Z. Attachment Z-1 contains lists of the addresses of each individual Residence in each of the three (3) neighborhoods. In the event that (i) the Authorized Representative of any of said three (3) areas of the City provides written notice requesting Contractor provide MSW, Recyclable Materials and Food Scrap/Green Waste Collection services as described in this Agreement to their community and/or HOA, and (ii) City notifies Contractor in writing of City's approval of the addition of such area to Contractor's service area, the procedure in Attachment Z shall be used to adjust Contractor's monthly compensation.

Such a change shall be coordinated between City and Contractor such that the provision of such services by Contractor shall commence on the first day of the month.

The adjustments to Contractor's compensation shall become effective the same day and Contractor shall be entitled to include the new adjusted compensation amount in the invoice Contractor submits to City for services rendered in that month. In such event, Contractor shall implement the weekly MSW, Recyclable Materials and Food Scrap/Green Waste Collection programs at all Residences within the new service area within twenty-five (25) days of the first day of Collection service. For example, if City approves Contractor providing Collection in the new area on the first day of the month, -122-
20-133

Contractor shall provide all necessary Carts (for both Recyclable Materials and Food Scraps/Green Waste), public outreach materials, Sure Close TM kitchen Food Scrap pails, and all other public education information to all Customers in the new service area on or before the twenty-fifth (25th) day of the same month. Contractor shall implement all program initiation steps described in Sections 1 and 2 of Attachment B and in Attachment X to implement the MSW, Recyclable Materials and Food Scrap/Green Waste Collection programs in the new service area.

In the event Contractor fails to provide all three of the basic Collection services (weekly MSW, Recyclable Materials and Food Scrap/Green Waste Collection) to all Residences in the new service area, or fails to provide all of the required public education and outreach as described in Attachment B and Attachment X to all Residences in the new service area, the adjustment to Contractor's monthly compensation made pursuant to the process described in Attachment Z shall be pro -rated such that Contractor is compensated only for the number of new Residences in the new Collection area that are receiving all three (3) basic weekly Collection services.

12.07.6 Residences Constructed on Vacant Land or Lots During the Term. Beginning with the Effective Date, the City will track, on a quarterly basis, the number of Certificates of Occupancy issued by City for new Residences constructed on lots or land that were vacant as of the Effective Date of this Agreement. The count of new Residences shall include only new Residences that meet all of the following: (i) the new Residence(s) was constructed on land or a lot that was vacant as of the Effective Date of this Agreement; (ii) the new Residence is located within Contractor's service area shown -123-
20-134

on the map in Attachment Q; (iii) the City has issued a Certificate of Occupancy for the new Residence(s); and (iv) the new Residence(s) receives Residential Cart Collection service from the Contractor.

If at any point during the Term, the cumulative number of Certificates of Occupancy issued by City after the Effective Date for new Residences that meet all of the above - listed criteria exceeds forty (40) such new Residences, the methodology in Attachment Z shall be used to adjust Contractor's compensation.

Once the count of qualifying new Residences reaches forty (40) or more, and Contractor's compensation has been adjusted as described herein, the count returns to zero (0) and begins again. Thereafter, Contractor's compensation shall be adjusted each time the cumulative number of Certificates of Occupancy issued to qualifying new Residences exceeds forty (40).

Such adjustments to Contractor's compensation shall be effective the first full month following the completion of the adjustment calculation. [Note: Such adjustments shall not be retroactive.] Once either Contractor or the City become aware that more than forty (40) Certificates of Occupancy have been issued to qualifying new Residences, the adjustment calculation shall be completed by City within thirty (30) days.

Contractor's compensation shall only be adjusted for the addition of Residences within City during the Term as described in this Section 12.07. No compensation adjustment shall be made for the additional of any other residences including, but not limited to, addition of accessory dwelling units, replacement of an existing residence or residences, remodels, addition of guest houses, or any other addition of Residences or -124-
20-135

addition(s) to an existing Residence(s). The parties agree that with the exception of (i) the addition of the specific Residential areas described in Attachment Z; and (ii) new Residences constructed on vacant land during the Term as described in Attachment Z, the Agreement assumes a "lump sum" method of compensating Contractor for serving all Residences in City during the Term, and therefore, Contractor's compensation shall not be adjusted for incremental fluctuations that may occur in the number of Residences in the service area shown in Attachment Q.
-125-
20-136

ARTICLE 13: DEFAULT AND REMEDIES

13.01 Events of Default. Each of the following shall constitute an event of default ("Contractor Default") hereunder:

A. (i) Contractor fails to perform its obligations under Articles 4, 5, 6 or 7 of this Agreement and the failure to perform is not cured within two (2) business days after receiving notice from the City of the breach; or (ii) Contractor fails to perform its obligations under Articles 4, 5, 6 or 7 of this Agreement due to a labor dispute or labor unrest (including, but not limited to, a strike, work stoppage or slowdown, sickout, picketing, or other concerted job action) and the failure to perform is not cured within seven (7) business days after receiving notice from the City of the breach; or (iii) in the case of any other breach of this Agreement, the breach continues for more than fifteen (15) calendar days after written notice from the City for the correction thereof.

B. There is a seizure or attachment of, or levy affecting possession of, the operating equipment of Contractor, including without limitation, its vehicles, maintenance or office facilities, of such proportion as to substantially impair Contractor's ability to perform under this Agreement, and which is not released, bonded or otherwise lifted within two (2) business days.

C. Contractor becomes insolvent, files a voluntary case for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or consents to the appointment of, or taking of possession by, a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of -126-
20-137

Contractor for any part of Contractor's operating assets or any substantial part of Contractor's operating assets or any substantial part of Contractor's property used to provide service to City pursuant to this Agreement, or makes any general assignment for the benefit of Contractor's creditors, or fails generally to pay Contractor's debts as they become due or takes any action in furtherance of any of the foregoing.

D. In any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, the court having jurisdiction enters a decree or order for relief from the Agreement, or any such court enters a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of any of the Contractor's operating equipment or assets, or orders the winding up or liquidation of the Contractor's operations.

E. Contractor fails to timely furnish an initial bond, or fails to furnish a replacement bond or a continuation certificate of the existing bond prior to expiration of the performance bond, as required by Section 11.03 of the Agreement, or Contractor fails to maintain all required insurance coverages in force at all times. The default shall occur immediately upon such failure without any necessity for notice from City of the breach.

City shall have the right to give notice of termination under Section 13.02 immediately upon such default. Notwithstanding any other provision of this Agreement to the contrary, -127-
20-138

Contractor shall not be entitled to an opportunity to cure any default comprising the failure to maintain all required insurance and/or the required bond.

F. Contractor fails to provide reasonable assurance of performance required under Section 14.10.

G. A representation or warranty contained in Article 2 proves to be false or misleading in a material respect as of the date such representation or warranty was made.

H. Contractor engages in, or is ostensibly engaging in any fraud or deceit upon City or makes a misrepresentation regarding information provided to City including, but not limited to, falsifying tonnage reports, reports of the results of characterization audits, Contamination on-site audits, Customer participation data, Contamination percentages, or provides any information that is materially misleading in any report or documentation provided to the City.

I. Contractor fails to honor any of its indemnity obligations herein.

J. Contractor, or any of its officers, directors or employees is 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. The term "found guilty" shall be deemed to include any judicial determination that Contractor or any of Contractor's officers, directors or employees is guilty as well as any admission of guilt by Contractor or any of Contractor's -128-
20-139

officers, directors or employees including, but not limited to, the plea of "guilty" "nolo contendere" "no contest" and "guilty to a lesser charge".

K. Contractor is found to have violated the Act, any Environmental Law, or any permit, order or rule of any regulatory agency in connection with Contractor's performance of this Agreement and such finding has become final and not subject to further appeal.

L. Any act or omission by Contractor relative to the services to be provided pursuant to this Agreement which violates the terms, conditions or requirements of this Agreement, or The Act, or any law, statute, ordinance, order, directive, rule or regulation issued pursuant to the Act. Any failure to correct or remedy any such violation within the time set in the written notice of the violation or, if Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice or in the event Contractor fails to commence to correct or remedy such violation within the time set forth in such notice and fails to diligently effect such correction or remedy thereafter.

M. Contractor fails to complete or submit required reports or documents to City as required by this Agreement.

N. Contractor fails to complete, perform or cooperate with any audit as describe in this Agreement.

O. Contractor fails to make any payments required under this Agreement and/or refuses to provide City, within ten (10) calendar days of the demand, -129-
20-140

with required information, reports and/or records in a timely manner as provided for in this Agreement.

P. Contractor empties Carts of properly set out Recyclable Materials or Food Scraps/Green Waste that contain less than twenty-five percent (25%) Contamination, into a load of MSW, or transports Recyclable Materials and/or Food Scraps/Green Waste to a Disposal site or other location at which the materials will not be Diverted.

Q. Contractor fails to complete the annual brake inspection of each Collection vehicle and to submit the Notice of Certification to City no later than May 1 of each year of the Term, as described in Section 7.03.D.8.

R. 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.

S. Failure of Contractor to adhere to, perform, implement and complete all parts of the Implementation Plan described in Section 4.03 and in Attachment C.

13.02 Right to Suspend or Terminate Upon Default.

A. Upon any Contractor Default, City shall have the right to suspend or terminate this Agreement, in whole or in part. Such suspension or termination shall be effective thirty (30) days after City has given notice of suspension or termination to -130-
20-141

Contractor, except that such notice may be effective immediately if the Contractor default is one which endangers the health, welfare or safety of the public. Notice may be given orally in person or by telephone to the representative of Contractor designed in or under Section 14.06 (or if he/she is unavailable, to a responsible employee of Contractor) and shall be effective immediately. 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 Contractor within twenty-four (24) hours of the oral notification. Contractor shall continue to perform the portion of the Agreement not suspended, in full conformity with its terms.

B. In the event of non-performance by Contractor due to a Force Majeure event, the provisions of Section 14.12 shall apply.

13.03 Specific Performance. By virtue of the nature of this Agreement, the urgency of timely, continuous and high-quality service, the lead time required to effect alternative service, and the rights granted by City to Contractor, the remedy of damages for a breach hereof by Contractor is inadequate, and the City shall be entitled to injunctive relief to require Contractor to perform its obligations herein.

13.04 Use of Contractor Property Upon Default. In the event that Contractor fails to perform any of its obligations under Articles 4, 5, 6 or 7 and fails to cure the default within forty-eight (48) hours after written notice from City, City shall have the right to use, and Contractor shall transfer possession of, any of Contractor's land, equipment, vehicles, facilities and other property reasonably necessary for the provision of services hereunder and for the billing and collection of payments from Customers for Extra Services provided -131-
20-142

pursuant to this Agreement. Such transfer shall include the necessary keys, codes, and other devices and equipment required to operate Contractor's vehicles, equipment, facilities and other property. The City shall have the right to continue use of such property until other suitable arrangements can be made for the provision of such services, which may include the award of a contract to another service provider.

13.05 Right to Perform. If this Agreement is suspended and/or terminated due to a Contractor Default, City shall have the right to perform and complete, by contract or otherwise, the work herein or such part thereof as it may deem necessary and to procure labor, equipment, and materials and incur all other expenses necessary for completion of the work and services provided for herein. If such expenses exceed the amounts which would have been payable to Contractor under this Agreement if it had been fully performed by Contractor, then Contractor shall pay the excess amount(s) to City.

13.06 Payment for Use of Contractor's Property. If the City invokes its rights to use Contractor's equipment, facilities, and other property pursuant to Section 13.04, and such use continues after the period of time for which Contractor has already been compensated, less liquidated damages and the City's reasonable expenses, Contractor shall be entitled to the reasonable rental value of such property (established by averaging a minimum of two (2) industry rental rates for such vehicles and equipment) which shall be offset against the damages due to the City as a result of Contractor's Default.

Contractor agrees that it will fully cooperate with the City in the use of Contractor's property. The City may immediately engage all or any personnel necessary for the provision of services, including, if the City so desires, employees previously employed by Contractor. Contractor further agrees, if the City so requests, to assist the City in securing -132-
20-143

the services of any or all management or office personnel employed by Contractor whose skills are reasonably necessary for the continuation of services. The City agrees that it assumes complete responsibility for the proper, normal use of such equipment and facilities while in its possession. Contractor agrees that the City's exercise of its rights under this section: (i) does not constitute a taking of private property for which compensation must be paid; (ii) will not create any liability on the part of the City to Contractor other than the payment of reasonable rental value as provided for in this subsection; and (iii) does not exempt Contractor from the indemnity provisions of Article 11 which are meant to extend to circumstances arising under this Article 13.

13.07 Damages. Contractor shall be liable to City for all direct, indirect, incidental, special and/or consequential damages arising out of Contractor's Default. This section is intended to be declarative of existing California law. The City may offset such damages against sums which would otherwise be due to Contractor.

13.08 City's Remedies Cumulative. City's rights to (i) suspend or terminate the Agreement under Section 13.02, (ii) to obtain specific performance under Section 13.03, (iii) use of Contractor's property under Section 13.04 and (iv) right to perform under Section 13.05 are not exclusive, and City's exercise of one such right shall not constitute an election of remedies. Instead, they shall be in addition to any and all other legal and equitable rights and remedies that the City may have, including a legal action for damages, including all direct, indirect, incidental, consequential and/or special damages under Section 13.07.

13.09 Liquidated Damages. City and Contractor acknowledge that consistent, timely, courteous and efficient Collection of MSW, Recyclable Materials and Food Scraps/Green -133-
20-144

Waste, is of utmost importance and City has considered and relied on Contractor's representations as to its quality of service commitment in entering into this Agreement.

City and Contractor further recognize that quantified standards of performance are necessary and appropriate to ensure consistent and reliable service. City and Contractor further recognize that if Contractor fails to achieve the performance standards, City and its residents will suffer damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of damages that City will suffer.

Therefore, City and Contractor agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient. In placing their initials at the places provided, both City and Contractor specifically confirm 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.

Contractor Initial Here: City Initial Here:

Contractor agrees to pay to City (as liquidated damages and not as a penalty) the amount set forth below, all of which shall be adjusted upward annually using the procedure and calculations set forth in Section 12.03 and Attachment J:
-134-
20-145

A. Collection Reliability
1 For each failure to commence service to a new Customer $150.00
account within seven calendar (7) days after order, for basic level of service including MSW, Recyclable Materials, and co - collected Food Scraps/Green Waste in excess of five (5) such failures annually on or after April 30, 2022.
2 For each failure to collect a Container containing MSW, $100.00
Recyclable Materials, Food Scraps/Green Waste from a
Residential Premises which has been properly set out for Collection, from an established Customer, on the scheduled Collection day, including regular and Saturday service, in excess of two -hundred fifty (250) such failures annually. 3 For each failure to collect MSW, Recyclable Materials, Food $150.00
Scraps/Green Waste which has been properly set out for
Collection, from the same Customer on two (2) consecutive scheduled Collection days.
4 For each instance of collecting MSW, Recyclable Materials, or $150.00
Food Scraps/Green Waste outside of Collection hours
described in Section 4.07
5 Failure to deliver and start service on Food Scrap/Green $5.00 per home
Waste Cart at all Residences in the Service Area in
Attachment Q by April 30, 2022 (unless Customer has twice refused a Cart and Contractor has submitted to City
documentation as to date, address and person at CR&R that tried to deliver the Cart and descriptions of why Customer refused Cart).

B. Collection Quality
1 For each occurrence of damage to private property
$250.00
which is not corrected to the satisfaction of the
property owner within thirty (30) days of the damage
and which exceed five (5) such occurrences annually
2 For each failure to properly return any empty Residential Cart in $50.00/occurrence
a location at curb or in alley to avoid pedestrian or vehicular traffic impediments or to place the Cart in an upright position, in excess of twenty (20) such occurrences annually
3 For each occurrence of discourteous behavior to a Customer:
$250.00
-135-
20-146

4 For each occurrence of excessive noise as defined in Section $500.00

4.08.B.
5 For each failure to clean up MSW, Recyclable Materials, Food $150.00
Scraps/Green Waste spilled from Carts, within the prescribed timeframe in Section 4.09.A, in excess of five (5) such failures annually:
6 For each failure to conform to the requirements of Sections $150.00

7.03.D.2, Cleaning; 7.03.D.3, Painting; 7.03.D.4, Maintenance;

7.03.D.8, Brake Inspections; 7.03.E, Operation; 7.04.E, Cleaning, Painting and 7.05.C, Uniforms, which exceed in any or a combination of categories above five (5) such occurrences annually
7 Comingling of Solid Waste with Recyclable Materials and/or $1,000 per incident
Green Waste/Food Scraps in Collection Vehicles except as provided in the event of Contamination (when Contaminated material may be placed in truck with MSW) [Note: Single pass trucks Collect two (2) different types of materials but each material must be kept separated within the body of the vehicle.

Failure to keep the materials separated shall constitute a failure incident.]
8 Disposal of Recyclable Materials, Food Scraps and/or Green $1,000 per incident
Waste in a Disposal Facility except as provided in this Agreement
9 For each Ton of Green Waste used as Alternative Daily Cover $150 per ton
10 For each failure to provide the City with 10,000 tons per year of $95 per ton of
guaranteed capacity for processing Recyclable Materials and processing capacity
Single Material Recyclables at the Clean MRF described in not provided
Attachment O.

C. Responsiveness to Customer
1 For each failure to initially respond to a Customer complaint $100.00
within eight (8) working hours:
2 For each failure to conform to the litter abatement requirements $250.00
of Section 4.09.
-136-
20-147

3 Failure of Contractor to maintain an average hold time of ninety $500 per month that
(90) seconds or less as required by Section 8.04C.
90 -second average
hold time is
exceeded
4 Failure or neglect to resolve a Customer complaint relating to $100.00 per incident
missed Collection within the time set forth in Section 8.05. per Customer
5 Failure to notify Customers of changes in route days as required $500.00 per
in Attachment B, Section 1.3.2.
occurrence
6 Failure to resolve customer complaint to satisfaction of City $500.00
within 5 business days
7 Failure to resolve customer complaint such that the Customer $100 per customer
calls City to resolve issue.
call in excess of 5
calls per month
8 For each failure to repair or replace a missing or damaged Cart $50 per day
within 2 business days of request from City or Customer 9 For each failure to remove graffiti from Carts, or to replace with $50 per day
Carts bearing no graffiti, within 2 business days of request from City or Customer
D. Timeliness of Submissions to City
1 Any report required to be submitted to City by Contractor pursuant to this Agreement shall be considered late until such time as a correct and complete report is received by City. Monthly, quarterly and annual reports must contain all information required in Attachment K. All other required reports must contain the information specified in this Agreement. For each business day (excluding weekends and the holidays listed in Section 4.07A of the Agreement) a report is late, the daily liquidated damage amount shall be:

1. Monthly report
$100.00 per day

2. Quarterly report
$250.00 per day

3. Annual report
$500.00 per day

4. All other reports
$100.00 per day
-137-
20-148

2 Failure to provide records requested by City within 30 days of $250 per day until
City request
completed
3 Failure of Contractor to provide requested access to on -board $100.00 per day
GPS data or video camera footage within five (5) business days of City request. In the event of a crash/injury/fatality, failure to provide access to on -board GPS data or video camera footage to law enforcement within the timeframe
requested by police, sheriff, public safety or other law enforcement.

E. Accuracy of Billing
1 Each Customer billing for Extra Services in Attachment D-2 $250.00
that is not prepared in accordance with list of prices in Attachment D-2:

F. Personnel
1 Each day after the Effective Date City does not receive $500.00/Coordinator
services of two (2) Recycling Coordinators (excluding
per day
Coordinators' holiday, vacation and sick leave days) for the initial 18 months and the services of one (1) coordinator thereafter including any day that City determines that either of the Recycling Coordinators is performing work for any entity that is unrelated to the duties of the Coordinator described herein [See Agreement Section 7.05H regarding training
period for replacement Coordinator(s)]
2 Failure to designate qualified Contractor Representative on or Fifty dollars ($50)
before January 15, 2022.
per business day
until completed
3 Failure of Contractor Representative to timely respond to City Fifty dollars ($50)
within 24 hours of a written, email, or telephone request. per business day
until response is
received
G. Vehicles and Equipment
1 Each day Contractor fails to have in service Alternative Fuel $500.00/vehicle
Vehicles as required by Article 7.
2 Failure to label Carts with labels, hot stamp, and/or decals as Fifty dollars ($50)
described in Attachment B Sections 1 and 2; and/or failure to per cart or vehicle
provide SB 1383 color -coded Carts and lids as required in per business day
Attachment B, Sections 1 and 2.
until corrected
-138-
20-149

3 Failure to provide all trucks and other vehicles listed in One hundred dollars
Attachment F (including all required on -board equipment, ($100) per vehicle
electronics and technology listed in Agreement Section 7.03H) not placed in service
on or before January 15, 2022.
per business day
until completed.

One hundred
Dollars ($100) per
vehicle per business
day without the
required technology
until it is supplied.
4 Failure to install collision avoidance system on any vehicles $250.00 per vehicle
operating in the City per Section 7.03.G by January 15, 2022. per day
5 Failure to distribute a kitchen pail to a Customer that has $25 per household
requested one (either as part of the initial distribution or a requested second pail or replacement ail
H. Compliance Reporting and Audits
1 Each day, after the due date on City invoice, Contractor fails to $250.00/day
reimburse City for audit as described in Section 9.05B
2 Failure to distribute public education materials to all $5,000/per route
Residences on route within the timeframe specified in
Attachment N, Section 1 after finding a twenty-five percent (25%) or higher Contamination rate for that route during waste characterization studies. If the failure continues after the initial assessment of liquidated damages, the liquidated damages are re -assessed for each additional thirty (30) day period the failure continues.
3 Failure to tag and photo -document instances of Contamination $250/instance of
encountered during Cart Contamination audits described in failure to tag/photo-
Section 2 of Attachment N
document
Contamination
4 Failure to perform required number of waste characterizations $5,000 per missed
per year as described in Attachment N. [Two (2)
characterization
characterizations per year for each stream: MSW, Recyclable Materials and Food Scraps/Green Waste for total of six (6) characterizations per year.]
5 Failure to perform required number of Cart Contamination $5,000 per missed
audits per year as described in Attachment N [Four (4) audits audit
per year for each stream: MSW, Recyclable Materials and Food Scraps/Green Waste for total of 12 audits per year]. -139-
20-150

6 Failure to perform Cart Contamination audits at required $50 per household
number (3%) of Residences for each quarterly audit as
below the 3%
described in Attachment N.
requirement in any
audit
7 Failure to submit reports on characterizations and
$100/report for each
Contamination audits within required timeframe in Attachment day the report is late
N.
8 Failure to notify City of date(s) and time(s) for characterizations $250 per day that is
and Contamination audits at least 30 days prior to the
less than 30 days
characterization or audit.

I. Cooperation with Service Provider Transition
1 For each day routing information requested by City in $1,000 per day
accordance with Section 14.13 is received after City
established due dates, both for preparation of a request for proposals and for new service providers implementation of service.
2 For each day delivery of keys, access codes, remote controls, $1,000 per day
or other means of access to Customer carts is delayed beyond 1 day prior to new service provider servicing Customers requiring special access, as described in Section 14.13 3 For delay in not meeting the requirements contained in Section $25,000

14.13 in a timely manner, in addition to the daily liquidated damages in Subpart I ("Cooperation with Service Provider Transition"), numbers 1 and 2.

J. Public Education and Outreach
1 For each failure to provide the follow-up outreach materials $2 for each
required after the initial six-month start-up of the Food household that did
Scrap/Green Waste Collection as described in Section 2 of not receive the
Attachment B by August 1, 2022.
brochure
2 For each failure to provide a resident with an introductory $2 for each
toolkit with the new kitchen pail and Food Scrap/Green Waste household that did
Cart as described in Section 2 of Attachment B by April 30, not receive the
2022.
toolkit
3 Failure to produce the educational video as described in $10,000
Section 4 of Attachment B by February 4, 2022.
4 Failure to produce the social media content for distribution via $10,000
the City social media channels as described in in Section 4 of Attachment B by March 31, 2022.
-140-
20-151

5 For each failure to provide the annual residential outreach $2 for each
materials as described in Section 2 of Attachment B by
household that did
January 15, 2023 and by January 1 of each year thereafter. not receive the
outreach materials
6 For each failure to prepare and distribute two mailings each $2 for each
calendar year updating customers on holiday collection
household that did
schedules and special collection services (HHW, bulky item, not receive the
etc.) and instructing customers on proper HHW handling as outreach materials
described in Section 4 of Attachment B by December 1 and by May 1 of each year.
7 For each failure to provide City with copies of Contractor's $5,000
quarterly Orange County newsletter supporting Diversion activities, for inclusion in City billings/mailings.

City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees, agents or representatives; through photo -documentation, audio recordings and other records created by Contractor; and/or through information, audio recordings, and photo -documentation provided by Residents, other Persons and/or Customers or through City's investigation of Customer complaints.

Prior to assessing liquidated damages, City shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s)/non- performance. Contractor may review (and make copies at its own expense) all non - confidential information in the possession of the City relating to incident(s)/non- performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with the City Manager or his or her designee. Contractor may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. The City Manager or his or her designee will provide -141-
20-152

Contractor with a written explanation of his or her determination on each incident(s)/non- performance prior to authorizing the assessment of liquidated damages. The decision of the City Manager or his or her designee shall be final.

B. Amount. The City may assess liquidated damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement.

C. Payment. City shall deduct the amount of liquidated damages due to the City from City's monthly payments to the Contractor for services rendered pursuant to this Agreement.

City's right to recover liquidated damages for Contractor's failure to meet the service performance standards shall not preclude City from obtaining equitable relief for persistent failures to meet such standards nor from terminating the Agreement for such persistent failures.

13.10 City Default. City shall be in default under this Agreement ("City Default") in the event City fails to make payments to Contractor in the amounts and timeframes specified in Article 12 and fails to cure such breach within thirty (30) days after receiving notice from the Contractor of the breach, provided that if the circumstances causing the breach are such that it will reasonably require more than thirty (30) days to cure, City shall not be -142-
20-153

in default so long as City promptly commences the cure and diligently proceeds to completion of the cure.

In the event of a City Default Contractor shall continue to perform all of its obligations hereunder until a court of competent jurisdiction has issued a final judgment declaring that there is a City Default.

13.11 Notice to City of Any Potential Labor Strike or Stoppage. Immediately upon learning of any potential, threatened or impending labor strike, sickout, work stoppage or shortage of Collection drivers or other necessary employees due to any cause, Contractor shall notify City within four (4) hours in writing and by telephone and electronic mail. In the event Contractor learns of such potential labor strike, stoppage or shortage on a non -business day, Contractor shall telephone and text the City's Contract Administrator and confirm with the Administrator that the message was received. -143-
20-154

ARTICLE 14: OTHER AGREEMENTS OF THE PARTIES

14.01 Permits, Licenses, Compliance with Law, Non -Discrimination. In providing the services required under this Agreement, Contractor shall at all times comply with all applicable laws of the United States, the State of California and City, with all applicable rules and regulations promulgated by federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended during the Term and with all permits affecting the services to be provided. Contractor shall obtain and maintain in full force and effect during the Term, at Contractor's sole cost and expense, all licenses, permits, qualifications and approvals legally required for Contractor to provide all the services described in this Agreement. Contractor shall maintain a City of Newport Beach business license during the Term of this Agreement. Contractor shall not discriminate nor permit discrimination against any Person in a manner prohibited by federal, state or local law.

14.02 Assignment. Contractor acknowledges that this Agreement involves rendering a vital service to the City's residents, and that the City has selected Contractor to perform the services specified herein based on: (i) Contractor's experience, skill and reputation for conducting their operations in a safe, effective and responsible fashion, and (ii) Contractor's financial resources to maintain the required equipment and services and to support its indemnity obligations to the City under this Agreement. The City has relied on -144-
20-155

each of these factors, among others, in contracting with Contractor to perform the services to be rendered by Contractor under this Agreement.

14.02.A City Consent Required. Contractor shall not assign its rights or delegate or otherwise transfer its obligations under this Agreement to any other Person (including an Affiliate) without the prior written consent of City. Any such assignment made without the consent of City shall be void and the attempted assignment shall constitute a Contractor Default. The decision of the City as to whether or not to agree to any assignment shall be final.

14.02.6 Assignment Defined. For the purpose of this section, "assignment" shall include, but not be limited to: (i) a sale, exchange or other transfer to a third party of substantially all of Contractor's assets dedicated to service under this Agreement; (ii) a sale, exchange or other transfer of outstanding common stock of Contractor, to a third party which results in a change of control of Contractor; (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 Contractor; (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 Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether -145-
20-156

or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor.

14.02.0 Consent Requirements. If Contractor requests City's consideration of, and consent to, an assignment, City may deny or approve such request in its complete discretion. No request by Contractor for consent to an assignment need be considered by City unless and until Contractor has met the following requirements:

1. Contractor shall undertake to pay City its reasonable expenses for consultants, attorneys' 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;

2. Contractor and the proposed assignee shall furnish City with audited financial statements of all of the proposed assignee's operations for the immediately preceding three (3) operating years;

3. Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of solid waste/recycling Collection and management experience on a scale equal to or exceeding the scale of operations conducted by Contractor; (ii) that in the last five (5) years, the proposed assignee has not been the subject of any administrative or judicial proceedings initiated by a federal, state or local agency having jurisdiction over its operations due to an alleged failure to comply with federal, state or local laws or that the proposed assignee has provided City with a complete list of such proceedings and their status; (iii) that the proposed assignee conducts its operations in a safe and environmentally conscientious manner, in -146-
20-157

accordance with sound solid waste and Recycling management practices in full compliance with all federal, state and local laws regulating the Collection and Disposal of MSW, Recyclable Materials, Food Scraps/Green Waste and all Environmental Laws; (iv) 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.

14.03 Subcontracting. Contractor shall not engage any subcontractors to perform any of the services required of it by this Agreement without the prior written consent of City.

Contractor shall notify the City no later than ninety (90) days prior to the date on which it proposes to enter into a subcontract. City may approve or deny any such request in its sole discretion.

Contractor may, in cases of emergency, engage subcontractors for up to seven (7) consecutive calendar days. Contractor shall give prompt notice to City of any such emergency subcontracting and any such engagement must be approved by City in writing if it is to extend beyond seven (7) calendar days, or if Contractor wishes to renew it after an interval of less than thirty (30) calendar days.

14.04 No Affiliated Entity. Contractor will not form or use any Affiliated Entity to perform any of the services or activities which Contractor is required or allowed to perform under this Agreement, other than as a subcontractor approved by City under Agreement Section

14.03. 14.05 Contractor's Investigation. Contractor has provided Residential Collection services to City for over ten (10) years and in addition, Contractor has made an independent investigation, satisfactory to it, of the conditions and circumstances -147-
20-158

surrounding the Agreement and the work to be performed by it, and the Recycling, Source Reduction and other Diversion programs now in effect in the City.

14.06 Notice. All notices, demands, requests, proposals, approvals, consents and other communications which this Agreement requires, authorizes or contemplates shall, except as provided in Section 13.02, be in writing and shall either be personally delivered to a representative of the parties at the address below or be deposited in the United States mail, first class postage prepaid (certified mail, return receipt requested), addressed as follows:

If to City: Public Works Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
with a copy to the Newport Beach City Attorney at the
same address
If to Contractor: Chip Monaco
Regional Vice President
CR&R Incorporated
11292 Western Avenue
Stanton, California 90680

14.07 Representatives of the Parties.

14.07.A Representatives of City. This Agreement will be administered by the Public Works Department of City. The Deputy Director of Public Works, or his/her designee, shall be the Project Administrator and shall the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall 20-159

represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement.

14.07.113 Representatives of Contractor. Contractor shall, by the Effective Date, designate in writing a responsible officer who shall serve as the representative of Contractor (Contract Liaison) in all matters related to the Agreement and shall inform City in writing of such designation and of any limitations upon his or her authority to bind Contractor. City may rely upon action taken by such designated representative as actions of Contractor unless they are outside the scope of the authority delegated to him/her by Contractor as communicated to City.

14.08 Right to Inspect Contractor Operations. City shall have the right, but not the obligation, to observe and inspect all of the Contractor's operations under this Agreement.

In addition, upon reasonable notice and without interference with Contractor's operations, City may review and copy any of Contractor's operational and business records related to this Agreement. If City so requests, Contractor shall make specified personnel available to accompany City employees on inspections and shall provide electronic copies of records stored in electronic media.

14.09 Maintenance and Review of Records, Submission of Reports. Contractor shall compile, on a daily basis, accurate records of its operations in sufficient detail to allow for accurate determinations of all matters that require periodic determination under this Agreement. City shall have the right during regular business hours to review and make copies of (at City's expense) any documents relevant to this Agreement, including, but -149-
20-160

not limited to, Contractor's billing and Collection records, tonnage reports, route lists, maps and records maintained in electronic, magnetic and other media.

Contractor shall prepare and submit complete, accurate and timely reports on forms provided or approved by City as described in Attachment K.

14.10 Right to Demand Assurances of Performance. If Contractor: (i) persistently suffers the imposition of liquidated damages under Section 13.09; (ii) is the subject of any labor unrest including work stoppage or slowdown, sickout, picketing or other concerted job action; (iii) appears in the reasonable judgment of City to be unable to regularly pay its bills as they become due; or (iv) is the subject of a civil or criminal proceeding brought by a federal, state, regional or local agency for violation of an Environmental Law, City may, at its option and in addition to all other remedies it may have, demand from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form and substance as the City may require.

14.11 Designation as City's Recycling Agent. Pursuant to Public Resources Code Section 40105 and California Code of Regulations Title 14, Division 2, Chapter 5, Subchapter 8, City designates Contractor as City's "Authorized Recycling Agent" for purposes of receiving payments for Contractor -Collected Recyclable Materials including but not limited to California Redemption Value payments.

14.12 Force Majeure. Neither party shall be in default of its obligations under this Agreement in the event, and for so long as, it is impossible or extremely impracticable for it to perform its obligations due to an "act of God" (including, but not limited to, flood, earthquake or other catastrophic events), war, insurrection, riot, or other similar cause not -150-
20-161

the fault of, and beyond the reasonable control of, the party claiming excuse (each, a "Force Majeure event"). The following are not force majeure events: labor unrest, epidemics, picketing, strikes, work stoppage or slowdown, sickouts or other concerted job actions. A party claiming excuse under this section must (1) have taken reasonable precautions, if possible, to avoid being affected by the cause, and (2) notify the other party in writing within five (5) calendar days after the occurrence of the event specifying the nature of the event, the expected length of time that the party expects to be prevented from performing, and the steps which the party intends to take to restore its ability to perform. The party claiming excuse under this section shall use its best efforts to remedy its inability to perform as quickly as possible.

14.12.A Force Majeure. Neither Contractor nor the City shall be excused from the performance of its obligations under this Agreement except where a party's failure to perform is due to a Force Majeure event, as defined in this Agreement.

14.12.6 Obligation to Restore Ability to Perform and Notifications. Any suspension of performance by a party pursuant to this section shall be only to the extent, and for a period of no longer duration than, required by the nature of the event, and the party claiming excuse from obligation shall use its best efforts in an expeditious manner to remedy its inability to perform, and mitigate damages that may occur as result of the event.

Throughout the period of service disruption, Contractor shall (i) provide City with a minimum of daily service updates; and (ii) notify Customers on a real-time basis as to alternative Collection procedures and timeframes for the disruption. At a minimum, -151-
20-162

Contractor shall update its website and shall utilize all available social media channels, the newspaper, and a "reverse 411" contact method to reach all Customers (utilizing telephone data as available from City's databases). Should other enhanced contact technologies become available during the Term, Contractor shall use such methods upon prior written approval from City.

14.12.0 Notice. The party claiming excuse shall deliver to the other party a written notice of intent to claim excuse from performance under this Agreement by reason of a Force Majeure event. Notice required by this section shall be given promptly in light of the circumstances, but in any event not later than five (5) calendar days after the occurrence of the Force Majeure event. Such notice shall describe in detail the claimed Force Majeure event, the services impacted by the claimed Force Majeure event, the expected length of time that the party expects to be prevented from performing, the steps which the party intends to take to restore its ability to perform, and such other information as the other party reasonably requests.

14.12.11) City's Rights in the Event of Force Majeure. The partial or complete interruption or discontinuance of Contractor's services caused by a Force Majeure event shall not constitute an event of default under this Agreement. Notwithstanding the foregoing: (1) the City shall have the right to make use of Contractor's facilities and equipment in accordance with Sections 13.04 and 13.06 of this Agreement in the event Contractor is unable to Collect and Dispose of MSW and Food Scraps as required herein for a period of three (3) or more consecutive days or for any three (3) days in a seven (7) calendar -day period, and such non-performance is excused by a Force Majeure event; -152-
20-163

(2) if Contractor's excuse from performance for reason of Force Majeure continues for a period of thirty (30) calendar days or more, the City shall have the right, in its sole discretion, to immediately terminate this Agreement; and (3) if Contractor's inability to Collect and Dispose of MSW and Food Scraps/Green Waste continues for fourteen (14) days or more from the date by which Contractor gave or should have given notice under Subsection C above, the City shall have the right in its sole discretion to immediately terminate this Agreement.

14.13 Cooperation During Transition. At the expiration or earlier termination of the Term, Contractor shall cooperate fully with the City to ensure an orderly transition to any and all new service providers. In addition, during the last fifteen (15) months of the Term, Contractor shall allow prospective operators to observe its operations and shall make available to City all records and reports required to be submitted by this Agreement for use in the transition including, but to limited to, complete route lists and maps, Customer account lists including Customer name, address, type and frequency of service, billing information, and number, type and location of all Containers deployed by Contractor within City. Such information and observation shall be provided and allowed regardless of the method(s) utilized by City to procure a new or different operator including, but not limited to, a request for proposals process, bid process, negotiation or any other process.

Failure of Contractor to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant.

Contractor shall provide any new service provider with all keys, security codes and remote controls, if any, needed to access gated communities and other Collection -153-
20-164

locations. Contractor shall be responsible for coordinating transfer immediately after Contractor's final pickups, so as not to disrupt service to any Customer. Contractor shall provide City with detailed route lists, maps and lists including Customer names, addresses and service levels, including number and types of each Cart at the Customer address and a list of all Extra Services (if any) subscribed to by each Customer, a minimum of ninety (90) calendar days prior to the transition, or within thirty (30) calendar days of City request whichever is sooner. Contractor shall provide a final list of changes to the Customer lists, route maps and level of services for each Customer, the day before the transition. Contractor shall, in addition to cooperating fully with observation of routes and other operations by any new service provider, provide means of access to the new service provider at least one (1) full business day prior to the first day of Collection by the new service provider, and always within sufficient time so as not to impede, in any way, the new service provider from easily servicing all Customers.

If requested by City, Contractor shall remove all Carts owned by Contractor from the City at the end of service. In such event, Contractor shall work cooperatively with the new service provider to coordinate removal of Contractor's Carts with the distribution of the new service provider's Carts.

14.14 No Damages for Invalidation of Agreement. If a final judgment of a court of competent jurisdiction determines that this Agreement, or any portion thereof, is illegal or -154-
20-165

was unlawfully entered into by the City, neither party shall have any claim against the other for damages of any kind (including but not limited to loss of profits) on any theory.

14.15 Diversion Programs Not Restricted. Nothing in this Agreement shall restrict City's participation or non -participation, or the nature or extent of its participation in, any Recycling and Diversion program, developed or operated by City, other agencies, or by one or more Residents or other Persons within City or other jurisdictions.

14.16 Reports as Public Records. The reports, records and other information submitted (or required to be submitted) by Contractor 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.

14.17 Cooperation. Contractor agrees to work closely and cooperate fully with City and any other agencies that may have jurisdiction or interest in the work to be performed pursuant to this Agreement. City agrees to cooperate with Contractor concerning the work to be performed pursuant to this Agreement.

14.18 City Policy. Contractor shall discuss and review all matters relating to policy and direction with City in advance of all critical decision points in order to ensure that all decisions about the services to be provided pursuant to this Agreement proceed in a manner consistent with City goals and policies.

14.19 City's Transfer Station. Prior to the Effective Date, Contractor shall enter into the operating agreement with the City to operate the City's transfer station. The Transfer Station Operating Agreement is included as Attachment W. -155-
20-166

14.20 Compliance With Immigration Laws. Contractor shall be aware of and comply with all local, state and federal laws which may apply to the performance of this Agreement. Contractor warrants and represents that all of its employees, including any and all prospective employees hired to perform services for the City pursuant to this Agreement and the employee of any City -approved subcontractor retained by Contractor to perform a portion of the services pursuant to this Agreement, are and will be authorized to perform the services contemplated by this Agreement in full compliance with all applicable local, state and federal laws, rules and regulations, including, but not limited to, the Immigration Nationality Act of 1952 (commencing with Section 11.01 of Title 8 of the United States Code), as amended. Contractor agrees to verify the legal status of all of its employees and provide documentation of such verification whenever requested by the City. In the event Contractor discovers that any employee it has retained is not in compliance with all immigration laws, Contractor agrees to take appropriate action in compliance with all applicable laws.

City reserves the right to perform a security and identification check through the City's Police Department on Contractor and on all present and future employees employed by Contractor to work in City, in accordance with accepted procedures established by City, or for probable cause.

14.21 Time of Performance. Time is of the essence in the performance of services under this Agreement and Contractor shall perform all services and requirements in the Agreement in accordance with the described timeframes and schedules including but not limited to, the schedule in the Implementation Plan in Attachment C, the schedule for -156-
20-167

public education in Attachment X, all reporting listed in Attachment K, all characterizations and on-site field audits described in Attachment N, and all due dates and deadlines contained throughout the Agreement. The failure of Contractor to strictly adhere to the required schedules and due dates may result in termination of this Agreement by City.

14.22 Conflicts of Interest. Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 ("CPRA"), which (i) requires such Persons to disclose any financial interest that may foreseeably be materially affected by the work performed pursuant to this Agreement, and (ii) prohibits such Persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the CPRA, Contractor shall conform to all requirements of the CPRA.

Failure to do so constitutes a material breach of this Agreement and is grounds for immediate termination of the Agreement by City . Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section 14.22.

14.23 Final Resolution of Customer Complaints Concerning Contractor. Disputes between Contractor and Customers regarding the services provided in accordance with this Agreement that cannot be resolved between Contractor and Customer (by Contractor's City Liaison, Recycling Coordinators and/or other employees of Contractor) may be resolved by the City's Project Administrator whose decision shall be final and binding.
-157-
20-168

Intervention by City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Contractor. Nothing in this section is intended to affect the remedies of third parties against Contractor. -158-
20-169

ARTICLE 15: MISCELLANEOUS PROVISIONS

15.01 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California.

15.02 Jurisdiction. Any lawsuits between the parties arising out of this Agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits. With respect to venue, the parties agree that this Agreement is made in and will be performed in Orange County and the exclusive venue is the Superior Court located in Orange County.

15.03 Binding on Successors. The provisions of this Agreement shall inure to the benefit of and be binding on the successors and permitted assigns of the parties.

15.04 Parties in Interest. Nothing in this Agreement is intended to confer any rights on any Persons other than the parties to it and their permitted successors and assigns.

15.05 Waiver. The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach or violation of the same or any other provision.

The subsequent acceptance by either party of any monies that become due hereunder -159-
20-170

shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation by the other party of any provision of this Agreement.

15.06 Attachments. Each of the attachments, identified as Attachments "A" through "Z- 1," is attached hereto and incorporated herein and made a part hereof by this reference.

15.07 Entire Agreement. This Agreement, including the Attachments, represents the full and entire agreement between the parties with respect to the matters covered herein and supersedes all prior negotiations and agreements, either written or oral.

15.08 Section Headings. The article headings and section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions.

15.09 Interpretation. This Agreement shall be interpreted and construed reasonably and neither for nor against either party, regardless of the degree to which either party participated in its drafting.

15.10 Amendment. This Agreement may not be modified or amended in any respect except by a writing signed by the parties.

15.11 Severability. If a court of competent jurisdiction holds any non -material provision of this Agreement to be invalid and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this Agreement which -160-
20-171

shall be enforced as if such invalid or unenforceable provision had not been contained herein.

15.12 No Attorney's Fees or Costs. In any action brought to enforce the terms of this Agreement or arising out of this Agreement each party shall bear its own costs and/or attorneys' fees.

15.13 References to Laws. All references in this Agreement to laws, rules, and regulations shall be understood to include such laws, rules, and regulations as they may be subsequently amended or re -codified, unless otherwise specifically provided. In addition, references to specific governmental agencies shall be understood to include agencies that succeed to or assume the functions they are currently performing.

15.14 City's Municipal Code. Contractor is aware of the provisions of City's Municipal Code relating to the Collection and Disposal of solid waste, specifically Article 4, Chapter 3 (Solid Waste Management) of the Newport Beach Municipal Code, including the right of City to amend those provisions. Contractor shall comply with all provisions of Article 4, Chapter 3, as they may be amended.

City may, in its sole discretion, determine whether and in what circumstances enforcement of provisions of the City's Municipal Code relating to the obligation of owners and occupants of Premises to use the services of Contractor is in the public interest. City undertakes no obligation, by virtue of this Agreement, to Contractor to enforce such provisions through civil actions, or termination of other utility services provided by City.

15.15 Agreement to Provide Services. The parties agree that this Agreement is a contract to provide services to the City, and is not a franchise or a grant of exclusivity to -161-
20-172

Contractor. The City shall have no obligation to affirmatively defend Contractor's rights granted under this Agreement, but shall reasonably cooperate with Contractor, at Contractor's expense, in Contractor's efforts to defend its rights. City agrees that it will not enter into a contract with another provider for the services described in this Agreement, so long as Contractor is satisfactorily providing the services described herein and is not in default pursuant to Article 13.

The parties acknowledge that City may permit the Collection, Recycling, Composting, Diversion and/or Disposal of any materials generated from Residential Premises in City including, but not limited to, all of the following materials without seeking or securing any approval of Contractor:

A. Recyclable Materials which are separated by the Customer and donated or sold to youth, civic, or charitable organizations or any other Person; B. MSW, and/or Recyclable Materials which are removed from any Premises by the property owner or occupant, and which are transported by the property owner or occupant (or by his or her full-time employees) to a Processing Facility or to a Disposal Facility;
C. Food Scraps and/or Green Waste which are removed from any Premises by the property owner or occupant and which are transported by the property -162-
20-173

owner or occupant (or by his or her full-time employees) and Composted at a Processing Facility, community composting site, and/or a community garden; D. Food Scraps and/or Green Waste which are Composted on-site by the property owner or occupant;
E. MSW self -hauled pursuant to Title 6, Chapter 6.06, Section 6.04.060 of the Newport Beach Municipal Code;
F. Recyclable Materials not placed for Collection by Contractor which are delivered to a permitted Recycling drop off or buy-back center or facility; Person.

G. Edible Food for Human Consumption that is Collected by any H. Food Scraps that are separated by the Customer for use as Edible Food for Human Consumption and are donated, sold or the Customer pays for Collection and delivery of the Food Scraps to food banks, shelters, churches, civic organizations, schools, individuals or any Person for human consumption.

I. Food Scraps that are separated by the Customer and are donated, sold or the Customer pays for Collection and delivery of the Food Scraps for use as animal feed.

J. Glass, plastic, and/or aluminum beverage containers and all other containers delivered for Recycling under the California Beverage Container Recycling Litter Reduction Act, Section 14500, et seq., California Public Resources Code; -163-
20-174

K. Construction and Demolition Debris self -hauled pursuant to Title 6, Chapter 6.04. Section 6.04.060 of the Newport Beach Municipal Code, and/or hauled by a Franchisee of the City of Newport Beach that is duly authorized to Collect Construction and Demolition Debris. Such duly authorized Franchisee may include Contractor.

L. Green Waste removed from a Residential Premises by a gardening, landscaping or tree trimming company utilizing its own equipment as an incidental part of a total service offered by the company rather than as a hauling service pursuant to Title 6, Chapter 6.04, Section 6.04.060 and in compliance with Chapter 6.06, Sections

6.06.040, 6.06.050 and 6.06.060 of the Newport Beach Municipal Code; K The casual or emergency Collection and Disposal of MSW by City employees in the normal course of their employment;
L. Hazardous Waste, regardless of the source; and
M. Cleanup services such as 1 800 GOTJUNK and OC Junk Removal, whose primary business is the cleanup of MSW on the property of another and who, incidental to such business: (a) hauls only the MSW which the cleanup service cleans up and no other MSW; (b) performs cleanup services such as removing junk from Residential Premises; (c) the cleanup service uses its own vehicle to haul the MSW which the cleanup service cleans up; and (d) does not use a Bin, Roll Off Box or other Container, whether or not such Bin, Roll Off Box or Container is left at the cleanup site, to accomplish the cleanup, Collection or transportation of the MSW.
-164-
20-175

15.16 Non -Discrimination. Contractor shall not discriminate, nor permit any City - approved subcontractor to discriminate, in the provision of services or the employment of Persons engaged in the performance of this Agreement on account of race, color, religion, sex, age, national origin, ancestry, physical handicap, sexual orientation, marital status or medical condition in violation of any applicable federal, state or local law.

15.17 Guaranty. No later than ten (10) days before the Effective Date of this Agreement, Contractor shall furnish a properly executed Guaranty of its performance under this Agreement, in the form shown on Attachment T.
-165-
20-176

This Agreement, consisting of one -hundred sixty-seven (167) pages, not including Attachments A through Z-1, shall be executed in four (4) originals.

IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and year first above written.

CONTRACTOR

CITY OF NEWPORT BEACH
By:

Mayor
ATTEST:

CITY CLERK
By:

City Clerk

APPROVED AS TO FORM
By:

City Attorney
-166-
20-177

Attachments
A Definitions
B Scope of Work
C Implementation Plan and Schedule
D-1, D-2 Contractor Compensation Paid By City
Costs for Extra Services Billed Directly by Contractor to Residents E Numbers and Types of Containers to be Furnished by Contractor and Cart Specifications
F Collection Vehicles to be Furnished by Contractor
G Contractor -Furnished Personnel and Names of Key Personnel H Not Used
I Orange County Landfill System Agreement
J Annual Compensation Adjustments
K Reports to be Submitted to City
L Performance Bond
M Bond Continuation Certificate
N Divertible Material Characterizations & On -Site Field Container Contamination Audit Protocols
O Clean Materials Recovery Facility
P Composting Processing Facility
Q Map of Entire Service Area
R Map of Side Loader and Rear Loader Collection Areas
S Map of Summer Saturday Service Collection Areas
T Guaranty
U Minimum Required Duties of Recycling Coordinators
V Sure Close Kitchen Food Scrap Container
W Transfer Station Operating Agreement
X Public Education Materials
Y Information To Be Submitted With Monthly Invoice
Z, Z-1 Adjustment of Costs For Neighborhoods Added to Service Area and New Residences Constructed on Vacant Land During the Term 20-178

ATTACHMENT A

DEFINITIONS
Act: "Act" means the California Integrated Waste Management Act of 1989 (Public Resources Code Section 40000, et seq.) as amended and as implemented by regulations of CalRecycle or its successor. The Act includes, but is not limited to, legislation enacted subsequent to the original Solid Waste Management Act (AB 939) such as AB 1594, AB 341, AB 1826 and SB 1383, which are all codified at PRC Section 40000, et seq.

Affiliate: "Affiliate" means any Person who or which is related to the Contractor by virtue of a direct or indirect ownership interest or common management. Affiliates include (1) a Person in which the Contractor has a direct or indirect ownership interest, (2) a Person which has a direct or indirect ownership interest in Contractor, and (3) a Person which is owned or controlled by any person which has a direct or indirect ownership interest in Contractor.

For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of the Internal Revenue Code, in effect as of the Effective Date, shall apply except that "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and Section 318(a)(3)(C).

Agreement: "Agreement" means this Agreement between the City and Contractor dated as of , 2022, including all attachments, and any amendments hereto.

Alternative Daily Cover or "ADC": Alternative Daily Cover (or "ADC) means cover material other than earthen material placed on the surface of the active face of a Municipal Solid Waste landfill at the end of each operating day to control vectors, fires, odors, blowing litter and scavenging. Federal regulations require landfill operators to use six (6) inches of earth material as daily cover unless other materials are allowed as alternatives. CalRecycle has approved eleven (11) ADC material types. Generally, these materials must be processed so that they do not allow gaps in the exposed landfill face. Prior to 2014, Green Waste included in the list of CalRecycle-approved ADC materials and use of Green Waste as ADC still counted as diversion of the Green Waste materials for purposes of the Act. AB 1594, passed and signed into law in 2014 phases out the use of Green Waste as ADC effective January 1, 2020. As of that date no Green Waste can be used as ADC and still count as diversion. As of January 1, 2020, any Green Waste used as ADC are counted as Disposed tons for purposes of the Act. [See Section 6.3 for the prohibition on use of Green Waste collected in City as ADC.] Alternative Fuel Vehicle: "Alternative Fuel Vehicle" means a vehicle whose engine design uses a fuel that is in full compliance with the South Coast Air Quality Management District's rules and regulations including Rule 1193.

Authorized Customer Representative: "Authorized Customer Representative" means the Person (including but not limited to, the owner or on-site manager) who has decision-making authority to subscribe to Collection services provided by Contractor and to approve payment of the bills for MSW, Recyclable Materials, Food Scrap/Green Waste and all other Collection services provided by Contractor. The Authorized Customer Representative may be the Resident themselves, or for an HOA or gated community the Authorized Customer Representative may be the property management company, property manager or other designee hired or appointed by the board of the HOA or the community. In cases where a Customer has retained the services of Attachment A Page 1 of 10
20-179

a waste broker or waste arranger, the Authorized Customer Representative is the Person who has been given the decision-making authority by the Customer for the subject Residential Premises within the City.

Bulky Items: "Bulky Items" means furniture, mattresses, couches and loveseats (including sleeper sofas), chairs and other small pieces of furniture, water heaters, refrigerators, ranges, washers, dryers, dishwashers, and other similar items (often referred to as "white goods"), and other large, bulky or heavy objects not normally discarded on a regular basis at Residences. Bulky Items must not be more than eight (8) feet in length, or more than four (4) feet wide, and must not exceed once hundred fifty (150) pounds). Bulky Items does not include the following: automobile bodies, Construction and Demolition Debris, tires, oil, antifreeze and other hazardous substances, Household Hazardous Waste, Electronic Waste, Universal Waste, fluorescent bulbs, household batteries, MSW, Recyclable Materials, Food Scraps, Green Waste, or items requiring more than two (2) persons to remove. [See also the definition of "Household Hazardous Waste" for materials Collected by Contractor as part of the Household Hazardous Waste Door -to -Door Collection program.]
CalRecycle: "CalRecycle" means the California Department of Resources Recycling and Recovery, the successor agency to the former California Integrated Waste Management Board.

Cart: "Cart" means a Container with a hinged lid and wheels serviced by an automated or semi - automated truck with a capacity of 35 gallons, 60-67 gallons, and 90-100 gallons.

City: "City" means the City of Newport Beach, a municipal corporation, and all of the territory lying within the municipal boundaries of the City as presently existing or as such boundaries may be modified during the Term.

Clean Materials Recovery Facility (Clean MRF): "Clean Materials Recovery Facility" or "Clean MRF" means a MRF, or that portion of a MRF that processes Recyclable Materials such as Single - Material Recyclables and Single Stream Recyclable Materials, containing no more than the maximum residue allowed by CalRecycle permit regulations (10% residue).

Collection: "Collection" or "Collect" means the taking of physical possession of MSW, Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris or other materials from Customers, and their transport to a Processing Facility, transfer station or landfill.

Community Association: "Community Association" means a Homeowner's Association, an association that governs a gated community, or any other organized elected or appointed governing entity for a group of residences located in City.

Compost: "Compost" is the product resulting from the controlled biological decomposition of organic material that are source -separated from the MSW stream and that has been sanitized through the generation of heat and processed to further reduce pathogens' (PFRP), as defined by the U.S. EPA (Code of Federal Regulations Title 40, Part 503, Appendix B, Section B), and stabilized to the point that it is beneficial to plant growth. Compost bears little physical resemblance to the raw material from which it originated. Compost is an organic matter source that has the unique ability to improve the chemical, physical, and biological characteristics of soils or growing media. It contains plant nutrients but is typically not characterized as a fertilizer.

Attachment A Page 2 of 10
20-180

Compost Facility: "Compost Facility" means a facility that processes one or more of the following that have been source -separated from MSW: Food Scraps, Yard Trimmings, Wood, and Food - Soiled Paper such as paper napkins and paper towels by means of outdoor windrow composting, aerated static pile composting, covered composting, vermiculture, or other outdoor composting methods or covered composting with use of either finished Compost or fabric, synthetic or other type(s) of cover(s) applied to the compost piles.

Composting: "Composting" means the creation of Compost.

Compost Products: "Compost Products" means mulch, gravel, soil amendments, special Compost blends (such as for specific agricultural uses or crops) and all other products created or produced from Food Scraps, Wood, and/or Green Waste Collected from within City.

Construction and Demolition: "Construction and demolition debris" means all inert material of every nature, description or kind, which has resulted from the building or demolition of a structure, pavements, sidewalks, curbs, gutters, and other concrete structures, including all lumber scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, dirt, rock and other building materials.

Containerized: "Containerized" means MSW, Recyclable Materials, and Food Scraps/Green Waste placed in a Cart with the lid in a fully closed position. (See also the definition of 'Non - containerized".)
Contamination or "Contaminant": "Contamination" or "Contaminant" means materials which are not specified for Collection in particular Carts or for processing at any Processing Facility and which would either interfere with such processing or reduce the quality and value of the Recovered Materials. For example, metals and plastics constitute "Contamination" if placed in a green -lidded Cart designated to contain only Food Scraps and Green Waste. Tree trimmings constitute "Contamination" if placed in a blue -lidded Recyclable Materials Cart. Contamination of MSW means the presence of Divertable Materials in the MSW Cart such as Recyclable Materials, Food Scraps, and/or Yard Trimmings.

Contractor: "Contractor" means CR&R, Incorporated.

County: "County" means the County of Orange.

Customer: "Customer" means the owner, occupant, tenant or user of Premises at which MSW, Recyclable Materials, Green Waste, Food Scraps, Bulky Items, Electronic Waste, Universal Waste and/or Household Hazardous Waste is generated and collected by Contractor. The Customer is the Person Generating such materials. The Customer may be a separate Person from the Authorized Customer Representative, who may arrange for and/or pay for, Collection service provided by Contractor.

Divertable or Divertable Materials: "Divertable" or "Divertable Materials" means Recyclable Materials, Food Scraps, Green Waste, Wood, Construction and Demolition Debris, Food Soiled Paper (if directed by City), Electronic Waste, Universal Waste, and all other materials that can be diverted from Disposal. Divertable Materials includes, but is not limited to, all materials required to be Diverted from Disposal by City, CalRecycle or any state or federal agency.

Attachment A Page 3 of 10
20-181

Disabled Persons: "Disabled Persons" means Customers that have been issued a handicapped placard from the California Department of Motor Vehicles, received written documentation from a medical doctor, or otherwise obtained approval to receive special Disabled Person services pursuant to this Agreement.

Disposal: "Disposal" or "Disposed" means the burying of MSW at a fully permitted landfill.

Disposal Charge: "Disposal Charge" means the cost, charge or tip fee at a Disposal Site that is paid by Contractor.

Disposal Site: "Disposal Site" means the City -designated landfill(s), or other facility(ies) used for the Disposal of MSW. "Disposal Site" also includes the City -designated transfer station(s) used to transfer MSW delivered in Collection vehicles into larger trucks and trailers which transport the MSW to the City -designated landfill(s).

Diversion: "Diversion" or "to Divert" means any combination of Recycling, sorting, Composting, and/or other Processing activities conducted at a Clean MRF, a Compost Facility, a Construction and Demolition Debris Processing Facility or another City -approved Processing Facility in order to prepare, use and/or market the materials for reuse, remanufacture, reconstitution or to otherwise return the materials to the economic marketplace and to prevent the materials from being Disposed in a landfill.

Diversion Programs: "Diversion Programs" means Collection of Recyclable Materials, Green Waste, Food Scraps, Wood, Construction and Demolition Debris, and processing of said materials at a Clean MRF, a Compost Facility, a Construction and Demolition Debris Processing Facility or other Processing Facility. Diversion Programs include all programs operated by the Contractor, the City, Residents, Businesses, Customers or other Persons that have the effect of diverting MSW from landfill. Diversion Programs includes all of the programs included in the City's Source Reduction and Recycling Element and all of the programs included in Attachment B.

Edible Food For Human Consumption: "Edible Food For Human Consumption" or "Edible Food" means food that has been prepared but not served, and includes but is not limited to:
appetizers, soups, salads, entrees, desserts, raw fruits and vegetables that may or may not have been sliced, grated, cooked, baked, or otherwise prepared for consumption but not served, packaged sandwiches, salads, fruits and fruit salad, and other non -served food that meets state and local requirements as being edible for human consumption. SB 1383 requires Diversion of seventy-five percent of all Food Scraps, Green Waste, Wood and certain other materials from Disposal by 2025, of which a minimum of 20% must be Edible Food for Human Consumption.

Effective Date: "Effective Date" means the date identified in Section 3.01.

Electronic Waste (E -waste): For purposes of this Agreement, "Electronic Waste" or "E -Waste" includes discarded video display devices such as televisions, television screens, computer monitors, plasma television screen, computer-related items, printers, copiers, stereos, speakers, scanners, cables, computer CPU's, LED screens and monitors, computer keyboards, computer mouse, printers, multi -function desktop machines (such as a combination printer/fax/copier), LED bulbs, VCR's, DVD/CD/tape players, cellular telephones, microwave ovens, toasters, irons, and all other corded appliances and corded devices that are not defined in this Attachment A as "Universal Waste" and that are banned from Disposal in a landfill. (The parties acknowledge and agree that this definition is used in the Agreement for the convenience of the parties and may differ from that in current state law and regulations.) Attachment A Page 4 of 10
20-182

Environmental Laws: "Environmental Laws" means all federal and state statutes, county and city ordinances concerning public health, safety and the environment including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.

Section 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Federal Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Clean Water Act, 33 U.S.C. Section 1251 et seq.; the Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 11001 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the California Integrated Waste Management Act, California Public Resources Code Section 40000 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code Section 25100 et seq.; the California Toxic Substances Account Act, California Health and Safety Code Section 25300 et seq.; the Porter -Cologne Water Quality Control Act, California Water Code Section 13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code Section 25249.5 et seq.; the California Clean Air Act, Health and Safety Code Sections 39000 et seq.; the California Hazardous Materials Response Plan and Inventory Act, Health and Safety Code Sections 25500 et seq., as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder.

Extra Carts: "Extra Carts" means Carts requested by a Customer that exceed the number of Carts provided to Customers in the basic residential service. The basic residential service includes one (1) MSW Cart, up to two (2) Recyclable Materials Carts and one (1) Cart for Food Scraps/Green Waste. Customers may request additional Carts and are billed directly by Contractor for all such Extra Carts.

Extra Services: "Extra Services" means services provided to Residential Customers over and above the standard or basic level of service as described in Section 1 of Attachment B and as listed in Attachment D-2. Contractor issues direct bills to Customers for Extra Services. Examples of Extra Services include, but are not limited to, Valet Service, Extra MSW Carts, Extra Food Scrap/Green Waste Carts, and Extra Recyclable Materials Carts as described in Attachment B.

The City compensates Contractor directly for providing the standard or basic level of service described in Attachment B, as shown in Attachment D-1. Customers pay the Contractor directly for Extra Services at the prices listed in Attachment D-2.

Extra Services Charge Delay Period: "Extra Services Charge Delay Period" means the period of time during which the City may direct Contractor to refrain from charging Customers directly for Extra Carts and/or Extra Services. The process for the City activating this Delay Period is described in Attachment B, Section 1. During the Extra Services Charge Delay Period (if activated) the City pays the Contractor directly for all the Extra Carts and Extra Services Contractor is providing to Customers as described in Article 12 and Attachment D-1.

Food Scraps: "Food scraps" means material resulting from the production, processing, preparation or cooking of food for human consumption that is separated from MSW. Food Scraps include surplus or unsold Edible Food, raw food left over after food preparation, leftover cooked food, as well as spoiled food such as vegetables and culls, and plate scrapings. Food Scraps includes, without limitation, Food Scraps from food facilities as defined in California Health and Safety Code Section 113789, food processing establishments (as defined in California Health and Safety Code Section 111955), grocery stores, farmer's markets, institutional cafeterias (such as schools, hospitals and assisted living facilities), restaurants, and residential Food Scraps. Food Scraps does not include Food Soiled Paper.

Attachment A Page 5 of 10
20-183

Food Scrap Processing Facility: "Food Scrap Processing Facility" means the City -approved Compost Facility, and/or other City -approved Processing Facility used to process Food Scraps Collected by Contractor in the City.

Food Soiled Paper: "Food Soiled Paper' means paper towels, tissue products, paper napkins, paper plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take-out boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated cardboard produce boxes. "Food Soiled Paper" does not include polystyrene, diapers, aluminum foil or foil - lined food wrap.

Generate: "Generate" means to bring into existence or create, or to use, maintain or possess an item, material or product, the result of which such creation, bringing into existence, use, maintenance or possession is that the item, material or product first becomes, or is converted, transformed, evolved to, or deemed as MSW, Recyclable Materials, Food Scraps, Green Waste, Construction and Demolition Debris or other materials.

Generator: "Generator' means a Person who Generates MSW, Recyclable Materials, Food Scraps, Green Waste, Household Hazardous Waste, Bulky Items, Construction and Demolition Debris or other materials.

Grace Period: "Grace Period" means the period of time that Customers will not be charged for Collection of Non -Containerized MSW, Recyclable Materials or Food Scraps/Green Waste that is placed out for Collection by Contractor. After the Grace Period ends, Customers will be direct - billed by the Contractor for Collection of any Non -containerized materials. The Grace Period is described in Attachment B, Section 2.8.

Green Waste: "Green Waste" means trimmings from trees or shrubs, plants, grass cuttings, removed or discarded branches, shrubs, plants, leaves or other materials generated from landscapes or gardens.

Hazardous Waste: "Hazardous Waste" means as defined in Section 11.05 of the Contract.

Homeowners Association (HOA): "Homeowners Association" or "HOA" means a mandatory membership organization comprised of two or more homeowners for the maintenance of commonly owned real estate and improvements associated with multi -family developments comprised of detached homes, condominiums or townhouses.

Household Hazardous Waste (HHW): "Household Hazardous Waste" or "HHW" means all Hazardous Waste generated incidental to owning or maintaining a place of residence. Household Hazardous Waste does not include any waste generated in the course of operating a business or commercial activity at a residence or at any Commercial Business Establishment. Typical Household Hazardous Waste include (a) cleaning products such as oven cleaners, rug and floor cleaners, furniture polish, drain cleaners and solvents; (b) automobile maintenance products such as car waxes, starting fluids, solvent cleaners, antifreeze, repair products, batteries, brake fluid, motor oil, used oil filters and gasoline; (c) home improvement products including oil-based stains, oil-based paints, liquid latex paint, caulking, varnish, paint thinners, chemical strippers, insect repellants, insecticides, pesticides, kerosene, lighter fluid and pool chemicals; and (d) personal care items including nail polish and remover, hair color. For purposes of the Diversion Programs in the Agreement, HHW also includes Electronic Waste, Universal Waste, Sharps, Attachment A Page 6 of 10
20-184

Pharmaceutical Wastes (at the direction of City), and all materials listed in Section 3.2 of Attachment B.

HHW does not include biological waste, ammunition, explosives, appliances, asbestos, commercial chemicals, construction -related materials, fire extinguishers, Food Scraps, cooking oil, grease, gas cylinders/pressurized cylinders, liquid mercury/elemental mercury, broken items that contain mercury, radioactive materials, tires, automobile parts, MSW, or Bulky Items.

Indemnitees: "Indemnitees" means the City, members of the City Council and other officers, employees, and agents of City.

Materials Recovery Facility (MRF): See "Clean MRF'
Mobile Home Parks: "Mobile Home Parks" means a Residential community or complex comprised of individual manufactured homes that are not permanently attached to the ground or pad, and ancillary structures such as a community room, gardens, greenbelts, pools or other amenities. Mobile Home Parks served by Contractor pursuant to the Agreement have individual Cart Collection service (similar to single-family homes).

Monthly Report: "Monthly Report' means the report required to be submitted to the City on a monthly basis as described in Attachment K. s
Municipal Solid Waste (MSW): "Municipal Solid Waste" or "MSW' is the variable portion of all non -hazardous discarded materials that is left over after all Diversion Programs are utilized by the owners and/or occupants of all Premises in the City. The owners and/or occupants of all Premises within the City are provided with separate, designated Carts for MSW, Recyclable Materials, and Food Scraps/Green Waste. The owners and occupants of all Premises separate and place discarded materials in the appropriate Cart(s) provided to their Premises. City and third parties may provide additional Diversion Programs for Collection and Diversion of other Divertable Materials. MSW is the material placed by owners and/or occupants in the MSW Carts(s) and does not include materials placed in the other Carts designated for Divertable Materials or materials Diverted via other Diversion Programs.

MSW does not include (1) Hazardous Waste or Household Hazardous Waste, (2) low-level radioactive waste regulated under California Health and Safety Code Sections 25800, et seq. or (3) untreated medical waste which is regulated pursuant to the Medical Waste Management Act, California Health and Safety Code Sections 25015, et seq.

Non -containerized: "Non -containerized" means (a) any materials placed inside a Cart that prevent the complete closure of the Cart lid at a Residential Premises; (b) any materials strewn on the ground beside, under or around the Cart; (c) materials piled on or around the Cart; (d) materials in cardboard boxes, plastic bags, and/lor bundled materials that are outside the Cart, and (e) any materials (including loose materials, bagged materials or materials in a cardboard or other type of box) that are stacked on top of the Cart. All materials not inside the closed -lidded Cart are considered Non -containerized. The Newport Beach Municipal Code requires that all materials placed for Collection by Contractor be fully Containerized. This includes all MSW, Recyclable Materials, Food Scraps, and Green Waste. (See also definition of "Containerized") Attachment A Page 7 of 10
20-185

Orange County Landfill System: "Orange County Landfill System" means any landfill owned or operated by the County of Orange, currently including the Olinda Alpha, Frank R. Bowerman, and Prima Deschecha landfills.

Orange County Landfill System Agreement: "Orange County Landfill System Agreement' or "OCLS Agreement" or "Waste Disposal Agreement' ("WDA") means the contract entered into in 2009 between the County of Orange and the City of Newport Beach as amended in April 2016, and as may be further amended in the future. The OCLS Agreement is in Attachment I.

Person: "Person" includes any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California, the County, municipality or special purpose district or any other entity whatsoever.

Plastic Containers: "Plastic containers" means all plastics made of resin numbers 1-7, specifically excluding polystyrene.

Premises: "Premises" means any land or building in the City where MSW, Recyclable Materials, Green Waste, Wood, Food Scraps and/or Construction and Demolition Debris is Generated or accumulated.

Processing Facilities: "Processing Facilities" means facilities where the following activities are conducted: sorting, cleaning, treating, Composting, and reconstituting Collected materials and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards of the market place. Processing Facilities include the Clean Materials Recovery Facility, Composting Facilities, Construction and Demolition Debris sorting facilities, and concrete and asphalt grinding facilities. Processing Facilities does not include Waste -to -Energy, Biomass, thermal destruction, or any type of Transformation facilities.

Project Administrator: "Project Administrator" shall mean the Deputy Director of Public Works who is the City -designated administrator for the Agreement.

Recovered Materials: "Recovered Materials" means those materials that are processed at a MRF, Compost Facility or any other Processing Facility and thus Diverted from Disposal.

Recyclable Materials: "Recyclable Materials" means material which otherwise would become, or be treated as, MSW but which, by means of a process of collecting, sorting, cleansing, treating, and/or reconstructing, may be returned to the economic mainstream in the form of finished or source material for new, reused or reconstituted products, which may be used in the market place. "Recyclable Materials" includes Single -Stream Recyclable Materials and Single Material Recyclables. Recyclable Materials includes, but is not limited to, paper, books, magazines, cardboard boxes, plastics, metals, glass, and other similar materials authorized by the City for Collection by the Contractor. Recyclable Materials does not include Food Scraps, Green Waste or Construction and Demolition Debris.

Recycle/Recycling: "Recycle" and "Recycling" mean the process of Collecting, sorting, cleaning, treating and reconstituting materials that would otherwise become MSW and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards to be used in the marketplace.

Attachment A Page 8 of 10
20-186

Recycling Coordinators: "Recycling Coordinator", "Recycling Coordinators" or "Coordinators" means the employees of Contractor described in Section 7.05.H of the Agreement.

Residential Premises: "Residential Premises" or "Residential" or "Residence(s)" includes single- family dwellings, Multi -family dwellings (such as townhouses, apartments, and condominiums), gated developments, HOA's, Community Associations and Mobile Home Parks that are provided individual Collection service for Carts at each dwelling unit, whether by means of walk-in (valet), curbside or alley Collection.

Residue: "Residue" means the MSW destined for Disposal which remains after processing at a MRF, Compost Facility, or other Processing Facility has taken place. The percent of Residue is calculated by dividing the weight of the Residue by the weight of the total materials delivered for processing at the facility. State law and regulations govern the allowable amount of Residue that can be generated by each type of Processing Facility.

Self -Haul: "Self -Haul" means the hauling of MSW and/or Divertable materials to a transfer, Processing, or Disposal Facility or other type of facility by a Customer, Generator, owner, or occupant of any Premises.

Senior Citizens or Seniors: "Senior Citizens" or "Seniors" means Customers age sixty-five (65) years and older.

Sharps: "Sharps" means new or used syringes, lancets and needles. Pursuant to state and federal law, Sharps cannot be Disposed as MSW in a landfill, but instead must be separately handled as medical waste. Sharps are included in the Household Hazardous Waste Collection program described in Section 3.2 of Attachment B.

Single -Material Recyclables: "Single -Material Recyclables" means those Recyclable Materials which satisfy each of the following requirements: (1) have been segregated from MSW for handling separate from that of MSW by or for the Generator thereof; (2) have been further segregated so that various types of Recyclable Materials, such as glass, metals, paper, cardboard, etc., are not commingled; and (3) after such segregation, contain no more than ten percent 10% Contamination by weight.

Single Stream Recyclable Materials: "Single Stream Recyclable Materials" or "Single Stream Recyclables" means those Recyclable Materials collected as separated from MSW by the Customer and consisting of a mixture of metals, glass, plastics #1-7, and all paper grades from Residential Premises. Single Stream Recyclable Materials are distinguished from Single -Material Recyclables, which consist of only a single type of material, such as glass, separated from other Recyclables.

Term: "Term" means the Term of this Agreement as specified in Section 3.02, and as it may be extended by City pursuant to Section 3.03.

Ton: "Ton" means a short ton of 2,000 pounds avoirdupois.

Transformation Facility: "Transformation Facility" means a facility utilizing incineration, pyrolysis, distillation, or biological conversion other than Composting and does not include Composting, gasification, biomass conversion or "wet" or "dry" Anaerobic Digestion. [See Section Attachment A Page 9 of 10
20-187

6.09 of the Agreement for the prohibition on use of Transformation Facilities for materials Collected within City.]
Universal Waste (U -Waste): For purposes of this Agreement, "Universal Waste" or "U -Waste" means electronic devices not included in the definition of "Electronic Waste" in this Attachment A, including but not limited to common AA, AAA, C Cell and D Cell batteries; fluorescent tubes and bulbs and other mercury containing lamps (including high intensity discharge [HID], metal halide, sodium and neon bulbs); mercury -containing devices such as thermostats, switches, thermometers, and relays (including those found in pre -1972 washing machines, sump pumps, electric space heaters, clothing irons, and silent light switches); pilot light sensors from gas appliances; mercury gauges from barometers, manometers, blood pressure and vacuum gauges; mercury -added novelty items such as greeting cards that play music when opened, athletic shoes with flashing lights in the soles, and mercury maze games; emptied aerosol cans, and other such items that are banned from Disposal in a landfill. (The parties acknowledge and agree that this definition may differ from that in current state law and regulations.) Certain types of Universal Waste are Collected by Contractor as part of the Household Hazardous Waste Door -to -Door Collection program as described in Section 3.2 of Attachment B.

Wood: "Wood" means all non -hazardous wood material that is not painted with lead-based or other paints containing materials identified as Hazardous Waste, or treated with creosote or other Hazardous materials. Wood includes, but not limited to, tree branches and other wood trimmings, dimensional lumber and other pieces of Wood generated during the manufacture or processing of Wood products, Wood generated as part of the harvesting or processing of raw woody crops, and the Wood debris from construction and demolition activities.

Attachment A Page 10 of 10
20-188

Attachment B Scope of Work
SECTION 1: GENERAL REQUIREMENTS

1.1. General Requirements for Collection and Billing.

The Contractor shall (A) Collect and Recycle all Recyclable Materials which are placed for Collection at Residences, gated developments, HOA's, Community Associations, and mobile home parks (collectively "Residences"); (B) Collect and Compost all Green Waste and Food Scraps which are placed for Collection at Residences; and (C) Collect, transport and Dispose of all Municipal Solid Waste (MSW) placed for Collection at Residences.

Contractor shall also be responsible for billing and collecting payment from Customers for (a) Extra Carts and Extra Services, and (b) for Collection of Non -containerized materials pursuant to the Agreement, as more fully described in this Section. All Residences within City that are served with wheeled Cart service (versus centralized bin service) are included in the Scope of Work in this Attachment B and shall be provided all services described in the Agreement.

1.1.1 Customer Billing.

Contractor is compensated directly by City for providing all the services contained in the Agreement with the exception of Extra Carts, Extra Services and Collection of Non - containerized materials that are described herein and listed on Attachment D-2. With regard to Extra Carts and Extra Services provided to Customers, Contractor shall prepare and issue quarterly bills in advance and either mail bills, or provide bills electronically, to Customers for such services. Contractor may begin issuing quarterly bills for Extra Carts and Extra Services on April 1, 2022, unless the City invokes the option for the Extra Service Charges Delay Period in order to delay Customers being directly billed for these services (see Section 1.4 of this Attachment B). With regard to billing for Collection of Non -containerized materials, Contractor may begin issuing monthly bills for Collection of Non -containerized materials on February 15, 2022, unless the Grace Period to delay direct -billing of Customers for Non -containerization is extended by the City as described in Section 2 of this Attachment B. Contractor shall be solely responsible for following all prudent business practices for collection of payments from Customers. Contractor shall never bill for services not verifiably rendered. If a billing error is made for an Extra Service, an Extra Cart(s) and/or Collection of Non -containerized materials that was not provided, then Contractor shall provide a timely refund or credit to the Customer. If Contractor makes an error and fails to bill a Customer for Extra Cart(s), Extra Services and/or Collection of Non -containerized materials provided over an extended period of time, Contractor shall only be able to recover payment for the most recent three (3) months of services provided. In such event, Contractor shall discuss the situation with the Customer, issue a bill for up to three (3) months of the Extra Cart(s), Extra Services, and/or Collection of Non -containerized materials provided, and allow the Customer sixty (60) days to pay the bill.

Attachment B Scope of Work Page 1 of 38
20-189

Attachment B Scope of Work
Contractor shall prepare bills for Extra Cart(s), Extra Services and Collection of non - containerized materials to Customers that clearly and accurately list the prices in Attachment D-2 in effect at the time services were provided or for the time period in which services will be provided. Bills shall fully explain and display all calculations of each charge. Such charges shall be at the prices in Attachment D-2 as adjusted annually pursuant to Article 12 of the Agreement. Contractor shall initially resolve any disputes related to charges for Extra Cart(s), Extra Services and/or Collection of Non -containerized materials with Customers. In the event Contractor cannot resolve a dispute, City may, at its option, review the matter and make a decision. In this event, the decision of the City shall be final.

Contractor shall submit to City, on or before February 1, 2022, a draft of bill format(s) and a line -item description for each charge for Extra Cart(s), Extra Services and Collection of Non -containerized materials, together with an example of a completed bill for a Residential Premises receiving such Extra Services for review and approval.

The parties plan to notify Customers of the prices and charges for Extra Carts, Extra Services and/or collection of Non -containerized Materials as shown in Attachments C and X.

In the event of Customer non-payment of bills for Extra Cart(s), Extra Services and/or Collection of Non -containerized materials, Contractor shall be responsible for collecting delinquent charges for said services it renders to Customers. Contractor may employ measures, consistent with federal and California laws regulating the collection of debts, to obtain payment of charges including use of its own employees to obtain judgments in Small Claims Court and to enforce such judgments. If Contractor has not received payment within forty-five (45) days of issuance of a bill, Contractor may issue a written notice that it will stop providing such Extra Cart(s), Extra Services within fourteen (14) calendar days. If no payment is made, Contractor may cease providing the Extra Services, and if applicable, remove Extra Carts that Contractor has provided to the Customer. Regarding Collection of Non -containerized materials, Contractor will notify City. Contractor's Recycling Coordinator and/or Contractor's City Liaison shall work with City including City Code Enforcement Officers to educate Customer about options for larger and/or Extra Carts. City may also take appropriate enforcement action.

1.1.2 Audit of Services Provided and Reported and Billings for Extra Carts, Extra Services and Collection of Non -containerized Materials.

In accordance with the annual CalRecycle compliance review processes set forth in SB 1383, Contractor shall review and audit the level of service being provided to each Customer, both for basic services and for Extra Services, (including all amounts billed to each Customer for any Extra Carts, Extra Services and Collection of Non -containerized materials received). Said audit shall compare the actual sizes, number and types (MSW, Recyclable Materials, and Food Scrap/Green Waste) of Carts provided to each Customer, frequency of Collection, and any Extra Services provided by Contractor, to the amounts reported to the City for basic services and to the amounts being charged to Customers for Extra Carts and Extra Services on an annual basis beginning in October 2022.

Attachment B Scope of Work Page 2 of 38
20-190

Attachment B Scope of Work
Contractor shall submit a written report to City documenting the results of the audit and noting any discrepancies identified and the date upon which the discrepancies were corrected. The report shall provide a listing to the City of all households that do not have a Cart for the Recyclable Materials Collection program and/or for the Food Scrap/Green Waste Collection program and/or MSW Collection program and shall be submitted by November 30 during each year of the Term beginning in 2022.

1.1.3 Service and Billing Records and Access By City.

Contractor shall maintain records of all services provided to Customers, and copies of all services billing records and receipts, in chronological order, for the entire Term of the Agreement, for inspection by the City upon request. The Contractor may maintain these records in electronic form or hard copy, provided records can be preserved and retrieved for inspection and verification in a timely manner, are sufficient to verify accuracy of all services provided, all billings issued and paid by Customers, and may be produced in a form and manner sufficient to establish the level of services provided to each Customer in a court of law. (Maintenance of such records is required by SB 1383 at CCR 18995.2(f)(3)).

1.1.4 Shared Containers.

Contractor shall, at Customer request, allow Customers in neighborhoods serviced by the single -pass rear -loader shown in Attachment R to share a Container for MSW, Recyclable Materials, Food Scraps/Green Waste. Contractor shall provide the City with a listing of Customers that subscribe to shared service in the annual reports.

1.2 Changes in Collection Services.

Contractor shall be responsible for: (A) establishing services for new Customers and (B) stopping services and preparing a final billing on a pro rata basis for a Customer subscribing to the optional Extra Services or Extra Carts that is permanently discontinuing service.

Contractor shall, for approval of City, develop a procedure and confirmation form to document requests for commencement and termination of, and changes in, service.

Customers shall be provided a copy of confirmation form noting effective date of start-up, change, suspension or termination of Collection services and other pertinent details, such as date of issuance of refund for any Extra Services not provided but for which Customer has paid.

1.3 Changes in Scheduled Days of Collection.

1.3.1 Initial Re -Routing. Prior to the Effective Date, Contractor had pre -established Collection routes within the City. The addition of co -collection of Food Scraps and Green Waste, (which on some routes will be collected in a single pass vehicle that also collects one additional type of material) required that Contractor restructure routes to 1) achieve optimum Collection efficiencies; 2) reduce vehicle traffic in the City; and 3) add a third Attachment B Scope of Work Page 3 of 38
20-191

Attachment B Scope of Work
Collection route for co -collected food scraps/yard trimmings. As of the Effective Date, Contractor has submitted, and City has approved, the new route maps and route lists.

Contractor shall implement its route optimization on January 31, 2022. This will allow time for the City's street sweeping vendor to adjusted its sweeping routes and City to change the "No parking" signage to correspond to the new Collection days.

Residents will be notified by the Contractor of all changes to scheduled days of Collection as described in Section 4 of this Attachment B and as shown in Attachments C and X.

Collection by the Contractor using the new Collection routes and schedule shall commence January 31, 2022. During the week January 31 through February 4, 2022 and during the week of February 7 through 11, 2022, Contractor shall provide extra collection service on the former service day for each neighborhood impacted by the service day changes. For example, if the Balboa Peninsula had Monday service days prior to the route optimization that became effective on January 31, 2022, Contractor shall continue to provide back-up Collection service for the first two Mondays in these neighborhoods after the new service day was implemented. This service shall Collect all Carts containing MSW, Recyclable Materials and Food Scraps/Green Waste that were mistakenly rolled out to the curb by Customers on the former ("old") Collection day instead of on the new Collection day. Contractor shall make every effort to source -separate and Divert materials that are Collected while conducting these backup Collection routes.

1.3.2 Route Changes After Initial Re -Routing. With the exception of the re-routing of the City described in Section 1.3.1 of this Attachment B, the Collection schedule for MSW, Recyclable Materials and Food Scraps/Green Waste shall not be changed without the prior written approval of City. Contractor shall request approval from City ninety (90) days prior to planned change in a scheduled day of Collection for Residential Premises. As a condition of approval of such a change, City may require Contractor, at Contractor's sole expense, to notify residents of the change by first-class postage. All details and scheduling of such notice shall be subject to approval by the City.

Scheduled Collection days for MSW, Food Scraps/Green Waste, and Recyclable Materials may be changed at the request of the occupant or Authorized Customer Representative of any gated development, HOA, Community Association, or mobile home park, without the approval of City.

1.4. Containers for the Collection of MSW, Recyclable Materials and Food Scraps/Green Waste.

Contractor shall be responsible for furnishing all Residential Carts as detailed in Sections

1.4.1, 1.4.2, 1.4.3 and 1.4.4. Contractor shall inform Customers about the pending changes in Carts and the pending delivery of new Carts as described in Section 4 of this Attachment B. Contractor shall provide Customers with new Carts for Food Scraps/Green Waste as described in Section 2.4.1 of this Attachment B.

As of the Effective Date, many Customers have multiple MSW Carts and may also have multiple Carts for Recyclable Materials. In the past, Customers were provided with an unlimited number of Carts and could also utilize their own plastic bags, boxes and other Attachment B Scope of Work Page 4 of 38
20-192

Attachment B Scope of Work
containers for storage and placement of MSW and Divertible Materials for Collection by Contractor.

Contractor shall notify Customers (as described in Section 4 of this Attachment B and in Attachments C and X) that as of the Effective Date, Customers shall receive the basic level of service described in Section 1.4.2 of this Attachment B, and may request Extra Carts as described in Section 1.4.3 of this Attachment B. If Customers have more Carts than described in Sections 1.4.2 and 1.4.3, they will begin to be charged (via a direct bill from Contractor) for the extra Carts as of April 1, 2022. Contractor shall inform Customers that they can have Extra Carts removed prior to April 1, 2022 to avoid being billed for the Extra Carts, as shown in Attachments C and X. The notice will provide the Customer with Contractor's contact information to call or e-mail to request removal of the extra Cart(s).

Contractor shall not bill Customers for such extra Carts until April 1, 2022. [See Section

1.4.8 of this Attachment B concerning the City's option to delay the process of Contractor direct -billing Customers for Extra Carts past April 1, 2022.] During the entire Term of the Contract, Contractor shall maintain an adequate inventory of Carts to fulfill and meet all needs of its Customers. Contractor shall be responsible for the repair and replacement of all Carts that are broken, damaged, tagged with graffiti, lost, or stolen. The repair, refurbishment and replacement of Carts shall be at the sole expense of the Contractor. The Contractor shall submit, on a quarterly basis, a report showing the inventory of all Carts as well as a record of the replacement and repair schedule for the prior ninety (90) days. Upon Customer request, Contractor shall allow Customers to switch to a different sized Cart for MSW, Recyclable Materials and/or Food Scraps/Green Waste materials as described in this Section 1.4.

1.4.1 Cart Color Coding and Labeling.

As of the Effective Date, residents in the areas of the City labeled "2013 Contract Area" in the Map in Attachment Q have Carts of the following colors and style: MSW Carts manufactured by Toter® with a granite color body and a black lid; Recycling Carts manufactured by Toter® with a granite body and a dark blue lid. Residents in the areas of the City in Attachment Q labeled "Newport Coast Area" have MSW Carts manufactured by Roto with black bodies and lids. Recycling Carts have brown bodies and lids.

The color scheme for carts required by SB 1383 (CCR Section18984.7) is black or gray for MSW, blue for Recyclable Materials and green for co -collected Food Scraps and Green Waste. Color may be indicated by the color of the entire Cart or by the Cart lid.

Contractor shall phase in replacement Carts by attrition, as further described herein, such that when existing Roto carts require replacement, a new Toter® Cart (either granite with a black lid for MSW or granite with a light blue lid for Recyclable Materials) will be provided to the Customer, and the old Roto Cart will be Collected by Contractor and either Recycled or Disposed. When existing Toter® Carts for Recyclable Materials with granite bodies and dark blue lids require replacement, Contractor will provide the Customer with a new Toter® Cart that is granite in color with a light blue lid and a Recycling decal.

Granite colored Toter® Carts with green lids and decals for storage of Food Scraps and Green Waste, will be provided to Customers as described herein. The ultimate goal of the Attachment B Scope of Work Page 5 of 38
20-193

Attachment B Scope of Work
City is to achieve a uniform color scheme for all Carts with granite colored Toter® Carts for each material and lids of the following colors: black lids for MSW, light blue lids with Recycling decals for Recyclable Materials, and green lids with Food Scrap/Green Waste decals for those materials.

All new Containers shall have messages/graphics on the Cart lid designed to remind Customers of what can or cannot be placed into each type of Container as required by CCR Section 18984.8. City shall have final approval of the text/graphics. All Carts provided by the Contractor pursuant to this Agreement shall meet the detailed specifications contained in Attachment E. All Carts shall be identifiable with a unique serial number located on the Cart that is assigned to the collection location and address that it services. A complete and current list of the serialized containers will be available to City personnel for use on an "as needed" basis. Contractor shall continue to utilize the herein -described color -coding scheme for all Residential Carts used in City through the remainder of the Term unless otherwise directed by City.

Contractor shall Toter® brand Carts for Food Scraps/Green Waste to all Residences as described in Section 2.4.1 of this Attachment B. Contractor shall endeavor to provide Toter® brand Carts for MSW, Recyclable Materials and Food Scraps/Green Waste throughout the Term, in order to create a uniform appearance of Cart aesthetics, shape and colors throughout the City. If, after making reasonable and timely efforts to obtain replacement Toter® brand Carts during the Term (and only after the initial purchase and distribution of Toter® brand Carts described herein has been accomplished by Contractor) Contractor may request City approval to provide replacement Carts from another manufacturer. City shall determine, in its sole discretion, whether the quality, features, sizes, Cart and lid colors and other characteristics of such Carts are equal to those of the Toter® Carts and whether the proposed Carts meet the specifications in Attachment E.

1.4.2 Containers for Basic Residential Service.

Contractor shall provide each Customer with a minimum of three (3) Carts for Residential Premises basic level of service: one (1) granite body/black lid MSW Cart (or existing black Roto Cart); one (1) granite body/light blue lid Recycling Cart (or existing Toter® with dark blue lid or existing brown Roto Cart); and one (1) granite body/green lid Food Scrap/Yard Trimmings Cart. Customers may request a second Recycling Cart at no additional charge.

Customers have a choice of Cart sizes as described herein.

Due to space constraints for Cart storage and street/alley width and size for Cart Collection, the City is divided into two service areas for Collection of Food Scraps/Green Waste Carts. Attachment R shows areas served by Contractor's single -pass split -body rear loader vehicles and areas served by Contractor's side loader vehicles. Residents in the rear loader area shall be provided with Food Scrap/Green waste Carts of the default size of thirty-two (32) gallons. Residents in areas served by the side loaders shall be provided with Food Scrap/Green Waste Carts of the default size of sixty-four (64) gallons.

Distribution of Food Scrap/Green Waste Carts, kitchen pails for Food Scrap storage, and Attachment B Scope of Work Page 6 of 38
20-194

Attachment B Scope of Work
associated public education materials is described in Section 2.4 of this Attachment B.

At any time (other than during distribution of the new Food Scrap/Green Waste Carts) that a Cart is distributed to a Residential Premises, Contractor shall also deliver to the Residential Premises the Recycling guide describing the Recyclable Materials Collection program and the Food Scrap/Green Waste Collection program as described in Section

4.3.2.1 of this Attachment B.

1.4.3 Provision of Extra Carts, Cost and Notice to Customers Customers may request additional Carts for MSW, Recyclable Materials and Food Scraps/Green Waste as follows. Customers may also request different sizes of Carts other than the default sizes listed in Section 1.4.2. If there is a cost for the Extra Cart(s) Contractor shall bill the Customer directly, on a quarterly basis (in advance) pursuant to the list of prices in Attachment D-2. Prices for additional Carts are subject to annual adjustment as described in Section 12.03 of the Agreement. As described in Section 1.4 of this Attachment B, Contractor shall commence direct billing for Extra Carts on April 1, 2022.

Extra MSW Carts. If Customer requests one or more additional black or black -lidded MSW Cart(s), Contractor shall provide such additional Cart(s) at the cost set forth in Attachment D-2. As of the Effective Date the monthly cost for each additional sixty-four (64) gallon MSW cart is six dollars and nine cents ($6.09).

Extra Recycling Carts. If a Customer requests one or more additional blue -lidded Recycling Cart(s), Contractor shall provide one (1) additional Recycling Cart of any size, at no additional charge. If the Customer requests additional carts beyond two (2) Recycling Carts, Contractor shall provide the third (3rd) and any additional Recycling Carts at the prices set forth in Attachment D-2. As of the Effective Date the monthly price for the third (3rd) and subsequent additional 64 -gallon Recycling Carts is three dollars and forty-one cents $3.41 per month per cart.

Extra Food Scrap/Green Waste Carts. If a Customer requests one or more additional green -lidded Food Scrap/Green Waste Cart(s), Contractor shall provide such additional Cart(s) at the price set forth in Attachment D-2. As of the Effective Date the monthly price for each additional sixty-four (64) gallon Food Scrap/Green Waste cart is four dollars and eleven cents ($4.11). For Customers in the rear loader Collection area shown in Attachment R, Customers can request an additional thirty-two (32) gallon Cart (which is the default size) or an additional sixty-four (64) gallon Cart (as described in Section 1.4.4 below) for the same cost of four dollars and eleven cents ($4.11) per month.

1.4.4 Customer Ability to Change Cart Sizes.

The default Cart sizes for MSW, Recyclable Materials and Food Scraps/Green Waste are listed in Section 1.4.2. Customers may request, and Contractor shall provide, the following different Cart sizes. If the Customer is requesting an Extra Cart for which there Attachment B Scope of Work Page 7 of 38
20-195

Attachment B Scope of Work
is an Extra Charge (as described in Section 1.4.3), Contractor shall bill the Customer directly for the extra charge. If the Customer desires to exchange the default Cart size(s) for one of the alternate Cart sizes listed herein, there will be no additional cost to the Customer or to the City.

Alternate MSW Cart Sizes. In lieu of the default sized sixty-four (64) gallon MSW Cart, Customers may request one (1) ninety-six (96) gallon MSW cart at no additional cost to the City or the Customer. In tightly spaced areas, residents may select one (1) or two (2) thirty-two (32) gallon MSW Cart(s) at no added cost rather than the default sixty-four (64) gallon cart. If there is a disagreement between Contractor and the Customer about whether or not the Customer is in a tightly spaced area and eligible for the smaller Cart size(s), the City may make the final decision.

Alternate Recycling Cart Sizes. The Customer may select up to two (2) Recycling Carts of any size at no additional cost to City or Customer. Possible two (2) Cart configurations are as follows: two (2) thirty-two (32) gallon Carts; two (2) sixty-four (64) gallon Carts; two (2) ninety-six (96) gallon Carts; one (1) thirty-two (32) gallon Cart and one (1) sixty-four (64) gallon Cart; one (1) ninety-six (96) gallon Cart and one (1) thirty- two (32) gallon Cart; or one (1) sixty-four (64) gallon Cart and one (1) ninety-six (96) gallon Cart.

Alternate Food Scrap/Green Waste Cart Sizes. In lieu of the default sized sixty-four (64) gallon Food Scrap/Green Waste Cart (in non -space constrained areas) or the default sized thirty-two (32) gallon Food Scrap/Green Waste Cart (in space -constrained areas), Customers may exchange the default sized Cart for one of the following sizes at no additional cost to the City or Customer: one (1) thirty-two (32) gallon Cart, one (1) sixty-four gallon Cart, or one (1) ninety-six (96) gallon Cart.

1.4.5 Valet Cart Services
The basic Residential Collection service described in Section 1.4.2 is Collection of Carts placed at curbside or in an alley (which location can be a distance of up to 8 feet from the property line per NBMC Section 6.04.120). Contractor shall provide Customers the option to select one of the following Valet Cart Services at an additional cost:

Standard Valet Cart Service. In space -constrained areas with rear loader service (as shown on the map in Attachment R) if a Customer requests Collection of one or more Carts within a distance over 8 feet (8') and up to fifteen feet (15) of where the driver is able to position the Collection vehicle, (with Contractor's driver and/or helper required to exit the vehicle and retrieve the Cart(s) and move it/them a distance of up to fifteen feet (15)), this shall be considered Standard Valet Cart Service. This would typically apply where the Cart(s) are placed at the side of the house or behind a gate.

In automated side loader Collection Areas (as shown on the map in Attachment R), if Contractor's driver must dismount from the cab of the Collection vehicle to empty a Cart Attachment B Scope of Work Page 8 of 38
20-196

Attachment B Scope of Work
within fifteen feet (15') from where the driver is able to position the Collection vehicle, this shall be considered Standard Valet Cart Service.

Premium Valet Cart Service. If a Customer requests Collection of one or more Carts from a location that is a distance greater than fifteen feet (15') from where the driver is able to position the Collection vehicle, it shall be considered Premium Valet Cart Service. This level of service is intended for Customers that want Carts moved from the garage, back yard or side yard and the driver has to leave the cab of the vehicle to provide the service. This service is more likely to be provided in the less space - constrained areas, but shall also be provided by Contractor to Customers in the space - constrained rear loader Collection areas shown on the map in Attachment R, if requested by the Customer.

Contractor shall direct bill Customers on a quarterly basis, in advance, beginning April 1, 2022 for Valet and Premium Valet Cart Service at the prices in Attachment D-2. [See Section 1.4.8 of this Attachment B for description of City's option to delay Contractor's direct billing of Customers for Extra Carts and for Valet Service past April 1, 2022.] As of the Effective Date, the price for Standard Valet Cart Service is $8.30 per home per month and the price for Premium Valet Cart Service is $27.68 per home per month.

These costs include the Valet Service for all three (3) Carts (MSW, Recyclable Materials and Food Scraps/Green Waste) provided as part of the basic level of Residential service. The monthly cost for the Valet Services also includes Valet Service for any Extra Carts the Customer has ordered.

In the event a Customer requests removal of any Extra Carts and/or discontinues Valet Service after April 1, 2022 and a direct bill for such services has already been rendered by Contractor to Customer, Contractor shall calculate a pro -ration for the number of days the Extra Cart(s) and/or Valet Service were provided and either issue a credit or refund (whichever the Customer prefers).

1.4.6 Special Cart Retrieval Service for Disabled Persons.

For no additional compensation from City and at no extra charge to the Customer, Contractor shall provide Disabled Persons with Cart Retrieval and Collection Service to those who request it. Contractor shall remove MSW, Recycling and Food Scrap/Green Waste Carts from Customer's storage area for Collection and return the empty Carts to the Customer's storage area, ensuring that all doors or gates are closed securely. In order to qualify as Disabled pursuant to this Section, Customers must have been issued a handicapped placard from the Department of Motor Vehicles, received written documentation from a medical doctor, or otherwise obtain approval to receive such service from the City. In the event of a dispute as to whether or not a Customer is entitled to this service, the City shall make the final determination.

1.4.7 Notice to Customers Concerning Costs For Extra Carts.

Attachment B Scope of Work Page 9 of 38
20-197

Attachment B Scope of Work
As shown in Attachments C and X, City plans to notify Customers via direct mail during the month of December 2021 about the default Cart sizes, the ability of Customers to request different Cart sizes from the default size (as described in Attachment B, Section

1.4.4) and the costs for Extra Carts. The City also plans to include information about the prices and descriptions of "Standard Valet Service" and "Premium Valet Service" (as described in Section 1.4.5); about the availability of Cart retrieval and Collection service for disabled persons (as described in Attachment B, Section 1.4.6); that Contractor will issue direct bills to Customers on a quarterly basis, in advance, for all Extra Carts and for Valet Services; and that Customers can avoid charges for Extra Carts by requesting that Contractor remove all Extra Carts before April 1, 2022.

Contractor shall direct mail a targeted notice to all households with Extra Carts and to all households with Valet Service to advise them that they will be direct -billed for the Extra Carts and Valet Service beginning April 1, 2022. The notice will inform Customers about how to avoid charges for these Extra Services by contacting Contractor to have Extra Carts removed and/or to discontinue Valet Service.

In order to enable residents to determine the number and sizes of Extra Carts they may need, the Contractor's notice shall also include a reminder about the new requirements that Customers Containerize all MSW, Recyclable Materials and Food Scraps/Green Waste and that Non -containerization will result in extra charges.

The parties plan that City will send a separate notice to all Residents describing the new Containerization requirements as shown in Attachment C and X. Non -containerization will result in extra charges of two -dollars and forty-seven cents ($2.47) per household per incident being direct -billed by Contractor to Customers beginning February 15, 2022.

1.4.8 City Option To Delay Contractor's Direct Billing For Extra Carts and Extra Services.

As noted in this Section 1.4, Contractor will begin to direct -bill Customers for Extra Carts and Valet Service ("Extra Services") on April 1, 2022. City may, in its sole discretion, invoke an Extra Service Charge Delay Period ("Delay Period") during which Contractor shall not direct -bill Customers for such services. City shall notify Contractor fifteen (15) calendar days prior to April 1, 2022 if City decides to invoke the Delay Period. In such event, the Delay Period will begin April 1, 2022 and extend through April 30, 2022.

During the Delay Period, City shall pay Contractor directly for all Extra Carts and all Valet Services provided to Customers. Contractor shall include in its monthly invoice to City, an itemized listing of all Extra Carts and all Valet Services provided during the prior month including the address where each Cart(s) and/or Valet Service was provided.

City may extend the Delay Period by additional full calendar months by providing written notice to Contractor a minimum of fifteen (15) calendar days prior to the end of the authorized Delay Period.

Attachment B Scope of Work Page 10 of 38
20-198

Attachment B Scope of Work
Once the City -authorized Delay Period ends, Contractor shall commence direct -billing of Customers for Extra Carts and Valet Service. If the City does not extend the Delay Period to encompass an entire calendar quarter that aligns with Contractor's quarterly billing period, Contractor shall issue Customer invoices for the remaining months of the quarterly billing period. For example, if the City directs Contractor to implement the Delay Period for April 1 — 30, 2022, Contractor shall issue invoices to all Customers with Extra Services beginning in early May 2022 for the invoicing period May 1 — June 30, 2022. If the City directs Contractor to implement the Delay Period for April 1 — May 30, 2022, Contractor shall issue invoices to all Customers with Extra Services beginning in early June 2022 for the invoicing period June 1 — June 30, 2022.

Attachment B Scope of Work Page 11 of 38
20-199

Attachment B Scope of Work
SECTION 2: RESIDENTIAL COLLECTION SERVICES

2.1 Basic Level of Service
Contractor shall provide the services described in this Attachment B to all Residences in the Service Area shown in Attachment Q. The basic level of service for a Residential Premises that is individually -serviced with Collection from wheeled, lidded Contractor - supplied Carts, includes once weekly curbside or alley Collection of: (A) MSW provided by automated Collection; (B) Recyclable Materials provided by automated Collection; (C) Food Scraps/Green Waste provided by automated Collection, and other required programs identified in the Agreement and in this Attachment B. City will allow exceptions to automated Collection upon receipt of a written request from Contractor if required due to space constraints, safety issues or other unusual circumstances. City's decision as to whether or not to allow manual Collection shall be final.

During the Term, additional Residential homes will be constructed and occupied within City. Contractor shall fully implement the Recyclable Materials Collection program, the Food Scrap/Green Waste Collection program, and MSW Collection at each new Residence within thirty days of issuance of the Certificate of Occupancy by the City. The liquidated damages in Sections 13.09 A 1 shall not apply until a service order request has been submitted to Contractor by one of the Contractor's Recycling Coordinators, the City, and/or a Customer.

In the event that one of the three (3) Residential neighborhoods identified in Section 12.07 and Attachments Z and Z-1 of the Agreement elects to receive Collection service from Contractor and City approves of this addition to Contractor's Service Area, the procedures in Section 12.07 shall be followed to provide the Carts described in Section 1 of this Attachment B to such residents and to commence the provision of services within the timeframe required by Section 12.07. In such event, Contractor's compensation shall be adjusted pursuant to Section 12.07, Attachment Z and Attachment Z-1.

2.2 MSW Collection.

The basic level of service for a Residential Premises that is individually -serviced is once weekly curbside or alley Collection of MSW provided by automated Collection. This includes MSW Collection services from wheeled, lidded Carts at all Residences located in gated communities, Community Associations, HOA's and mobile home parks.

2.3 Recycling Services.

The basic level of service for a Residential Premises that is individually -serviced is once weekly curbside or alley Collection of Recyclable Materials provided by automated Collection on the same day as MSW Collection. Contractor shall process Recyclable Materials at the Clean MRF approved by City listed in Article 5 of the Agreement and arrange for sale of the Recyclable Materials.

Attachment B Scope of Work Page 12 of 38
20-200

Attachment B Scope of Work
Contractor shall provide Recyclable Materials Collection service to any new Residences pursuant to Section 2.1 of this Attachment B. If any Resident refuses delivery of a Recycling Cart, Contractor shall make one additional attempt to inform the Resident of the reasons for the state -mandated Recycling program and to deliver the Cart. If the Cart is refused a second time, Contractor shall retain the Cart for future use within the City.

Contractor shall maintain a record of the Customer name, address, date(s) of Cart refusal and the number of total Recycling Carts being held in inventory due to being refused.

Contractor shall provide the number of refused Recycling Carts in inventory in the monthly reports to City described in Attachment K.

2.4 Food Scrap/Green Waste Collection Program.

The basic level of service for a Residential Premises is once weekly curbside or alley Collection of Food Scraps/Green Waste provided by automated Collection on the same day as MSW Collection. Contractor shall process the Collected commingled Food Scraps/Green Waste at the Compost Facility approved by City listed in Article 5 of the Agreement and arrange for sale of the Compost that is produced.

2.4.1 Distribution of Food Scrap/Green Waste Carts and Kitchen Pails.

Contractor shall implement a co -collected Food Scrap/Green Waste program at all Residential Premises in City with Collection of Food Scraps/Green Waste from all Residences beginning on or before January 31, 2022. The phased rollout will begin January 31, 2022 and continue through March 31, 2022. Contractor shall deliver one sixty-four (64) gallon Cart with a green lid and decal for storage of Food Scraps/Green Waste to each Residence located within the areas of the City labeled "2013 Contract" in Attachment R. In areas labeled "Newport Coast" in Attachment R, Contractor shall deliver one thirty-two (32) gallon Cart with a green lid and decal for storage of Food Scraps/Green Waste. All Residences shall receive a Food Scrap/Green Waste Cart on or before March 31, 2022. Failure of Contractor to distribute a Food Scrap/Green Waste Carts to all the Residences within City by April 30, 2022 shall result in assessment of liquidated damages described in Section 13.09 of the Agreement.

Customers located in HOAs or Gated Developments that have landscaping service in a community association or HOA etc. and that may not, therefore, generate any green waste still will be delivered a green -lidded cart for Food Scraps.

Contractor shall distribute public education materials to all Residences concurrent with the distribution of Food Scrap/Green Waste Carts as more fully described herein and in Section 4 of this Attachment B.

If requested by Customer, Contractor shall provide different size(s) of Food Scrap/Green Waste Carts as described in Section 1.4 of this Attachment B. If any Resident refuses delivery of a Food Scrap/Green Waste Cart, Contractor shall make one additional attempt to inform the Resident of the reasons for the new state -mandated Food Scrap/Green Waste Collection program and to deliver the Cart. If the Cart is refused a second time, Contractor shall retain the Cart for future use within the City. Contractor shall maintain a Attachment B Scope of Work Page 13 of 38
20-201

Attachment B Scope of Work
record of the Customer name, address, date(s) of Cart refusal and the total number of Food Scrap/Green Waste Carts being held in inventory due to being refused. Contractor shall provide the number of refused Carts in inventory in the monthly reports to City described in Attachment K.

Within fourteen (14) calendar days after delivery of the Food Scrap/Green Waste Cart to a Residence, Contractor shall provide the residence, at no additional charge, with a "Sure Close TM" food Scrap container for storage of Food Scraps in the kitchen as described in Attachment V.

Contractor shall prepare and distribute public education materials, customized to Newport Beach Residents, simultaneously with the "Sure Close TM" containers. Said distribution shall be accomplished by going door-to-door to provide each residence with a "Sure Close TM" kitchen Food Scrap container as shown in Attachment V. Public education materials describing the Residential Food Scrap/Green Waste program, and showing how to use the Sure Close TM container shall be provided to each residence and Contractor's personnel shall discuss the new Food Scrap/Green Waste program with occupants of each residence. The public education materials to be provided with each kitchen pail are described in Section 4.3.2.2 of this Attachment B.

If any Resident refuses delivery of a Sure Close TM kitchen Food Scrap pail, Contractor shall make one additional attempt to inform the Resident of the reasons for the new state - mandated Food Scrap/Green Waste Collection program and to deliver the pail. If the pail is refused a second time, Contractor shall retain the pail for future use within the City.

Contractor shall maintain a record of the Customer name, address, date(s) of pail refusal and the total number of refused Sure Close kitchen Food Scrap pails being held in inventory. Contractor shall provide the number of refused pails in inventory in the monthly reports to City described in Attachment K.

After initial delivery of the default sized sixty-four (64) gallon or thirty-two (32) gallon Food Scrap/Green Waste Cart to Residences (size depending upon the Customer's location within the City as described in Section 1.4 of this Attachment B) if the Customer requests a second Food Scrap/Green Waste Cart, Contractor shall promptly deliver such Cart and the additional charge listed in Attachment D-2 for the Extra Cart shall be direct -billed to the Customer by Contractor as described in Section 1.4.3 of this Attachment B.

Contractor shall continue to prepare and distribute a set of public education materials as described herein and in Section 4 of this Attachment B, annually during the Term.

2.5 Reports to City on Cart Distribution and Diversion Program Rollout Contractor shall provide City with bi-weekly updates on Food Scrap/Green Waste Cart and kitchen pail distribution. The first bi-weekly reporting period will be January 24 — February 14, 2022 with the bi-weekly report due on February 11, 2022. The bi-weekly reports shall continue throughout the Cart distribution, program implementation and Attachment B Scope of Work Page 14 of 38
20-202

Attachment B Scope of Work
shakedown period and shall end April 30, 2022. Each report shall be due to the City on the first Friday following the 2 -week reporting period.

The bi-weekly reports shall be submitted to the City via electronic mail and shall include the following: (a) number of Food Scrap/Green Waste Carts delivered during the prior two (2) week period and addresses where delivered; (b) number of Sure Close TM kitchen Food Scrap containers delivered during the prior two (2) week period and addresses where delivered; (c) number of Customers who received public education materials about the Food Scrap/Green Waste Collection program during the prior two (2) week period including which materials the Customers received; (d) number, type(s) and method(s) of dissemination of public outreach information about the Food Scrap/Green Waste Collection program, the Recyclable Materials Collection program, methods to prevent Contamination in MSW, Recyclable Materials and Food Scrap/Green Waste Carts and other aspects of the Diversion Programs completed during the prior two (2) week period; (e) the number of Customer requests for non - default sized Carts, addition of Extra Carts, removal of Extra Carts and addition or discontinuation of Valet Services that were fulfilled during the prior two (2) week period and addresses where changes were made; and (f) the number of outstanding unfulfilled requests for additional carts, Cart removal , change to valet service and Cart exchange.

2.6 Monitoring of Contamination in All Residential Collection Programs Monitoring, reducing and eliminating Contamination in the MSW, Recyclable Materials and Food Scrap/Green Waste Collected by Contractor is of paramount importance for the City's compliance with SB 1383 (which is part of the Act). Contractor shall perform all of the following to monitor, reduce and eliminate Contamination in the Residential Diversion programs.

2.6.1. Characterizations and On -Site Field Audit Requirements Contractor shall conduct all Characterizations and On -Site Field Audits described in Attachment N and shall also conduct all follow-up Contamination tracing and public education and outreach described therein.

2.6.2. Observation and Issuance of Contamination Notices to Customers.

Whenever Contractor's driver arrives at a Residence where the driver observes Contamination in any Cart(s) (MSW, Recyclable Materials and/or Food Scrap/Green Waste Cart(s)), the driver shall take the following actions:
(1) Utilizing the tablet -based, on -board operational CRM system described in Article 7, photograph the Contamination in the Cart and link the Contamination event with the Customer associated with the Contaminated materials in a manner that notes the address, customer number, time, and date with the Contamination Attachment B Scope of Work Page 15 of 38
20-203

Attachment B Scope of Work
event. Upload the photograph to both Contractor's dispatch/Customer Service and to a shared, cloud -based file that is also accessible by the City; (2) Empty the Contaminated Cart into the Collection vehicle, including Collecting all materials in and around the Cart.
(3) Place a hang -tag on the Contaminated Cart. The hang -tag shall contain the following information:
a. Customer must place only acceptable Recyclable Materials in the Recycling Cart and only acceptable Food Scraps and Green Waste in the Food Scraps and Green Waste Cart. No Recyclables or Food Scraps and Green Waste shall be placed in the MSW Carts.
b. Informing the Customer that they may request additional Recyclable Material Carts and Food Scraps and Green Waste Carts from CR&R at an additional charge
c. Informing the Customer that State law and local ordinance requires all Residents to participate in the City's Recyclable Materials and Food Scrap and Green Waste Diversion programs
d. Notifying the Customer that the City may fine the Customer if additional Contamination occurs
Upon Contractor receipt of notification from the driver that a Customer has placed a Contaminated Cart out for Collection, the Contractor's personnel shall record the instance on a digital database including the following information:

1. Date of Contamination event

2. Time of Contamination event

3. Customer address where Contamination was encountered

4. Customer identification number (if available for the customer) for Customer associated with Contamination

5. Photo -documentation of Contamination

6. Route number for the route where the Contamination was encountered

7. Material stream that was Contaminated and by which type of Material (i.e. MSW in the Recyclable Material stream, Recyclable Materials in the MSW stream, Food Scraps/Green Waste in the Recyclable material Stream, etc.) In the monthly reports described in Attachment K, Contractor shall provide the City with a digital listing, in Excel format (or similar database program approved by City), of Customers that were found by the driver to have Contamination in their Carts. The report shall include: 1) the total number of Contamination events associated with each Customer during the reporting period; and 2) the Cart which contained the Contamination (i.e.

Recycling Cart, MSW Cart, or Food Scraps Green Waste Cart). Contractor shall also provide to City photo -documentation of each instance of Contamination on a monthly basis using a cloud -based file sharing service.

Attachment B Scope of Work

Page 16 of 38 ends

Newport Beach City CouncilJanuary 11, 2022

Newport Beach City Council
January 11, 2022