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20-0204_CR&R INCORPORATED_F3a_Agenda Report2t4t2020 F3a City of San Juan Capistrano Agenda Report TO Honorable Mayor and Members of the City Council 4drt'FROM: ¿lÚenjamin Siegel, City Manager SUBMITTED BY: þarlie View, Assistant City Manager PREPARED BY: Noreen Swiontek, Senior Management Analyst DATE: February 4,2020 SUBJECT:Resolution Approving an Amended and Restated Agreement for Solid Waste Handling Services with CR&R lnc. RECOMMEN DATION Adopt a resolution approving the proposed Amended and Restated Agreement with CR&R lnc. for Solid Waste Handling Services. EXECUTIVE SUMMARY: The City of San Juan Capistrano has an exclusive Franchise Agreement for solid waste handling services with CR&R lnc. The Franchise Agreement, originally dated December 9,1996, has been amended seven times, with the most recent amendment dated February 18,2014. A copy of the current agreement is provided as Attachment 1, and is set to expire on June 30,2020. Following a competitive procurement process, staff is recommending the City Council approve, by resolution, a new Amended and Restated Franchise Agreement (Attachment 2). The proposed Franchise Agreement provides for a ten-year term and would ensure that the City remains in compliance with several new state laws and regulations involving waste and recycling. DISCUSSION/ANALYSIS: The City's current Franchise Agreement with CR&R terminates on June 30, 2020. On November 5,2018, the City Council approved a Professional Services Agreement with R3 Consulting Group lnc. (R3) for assistance in negotiating an amended or new agreement with CR&R. After initial discussions with the hauler and evaluation of the City Council Agenda Report February 4,2020 Paqe 2 of 7 proposed rates, at the recommendation of R3 and staff, the City Council expanded the procurement effort to include a limited number of other qualified service providers. ln May 2019, the agreement with R3 was amended to include assistance with a limited Request for lnformation (RFl) process with select waste haulers, inclusive of CR&R. Based on this direction, R3 solicited proposal from the following haulers: Athens Services Burrtec Waste I ndustries CR&R lnc. Republic Services Waste Management Collection and Recycling lnc. The RFI emphasized that the selected hauler would be responsible for compliance with all applicable current and future regulations, while also delivering services at the lowest feasible rates. Responses to the RFI were received from CR&R, Republic Services, and Waste Management. R3 worked with all three respondents on an initial rate and service evaluation and provided a report to the City team. All three respondents were invited to interview and present their plan for providing solid waste handling services to the City's residential and commercial customers. Based on a thorough evaluation process and additional discussions on rate structures, staff and R3 concluded that CR&R had proposed the best overall combination of services, rates, and a plan for regulatory compliance. Consequently, staff proceeded with negotiating an amended and restated Franchise Agreement exclusively with CR&R. The proposed Amended and Restated Franchise Agreement addresses changing regulations related to discontinued use of the landfill for disposal of green waste as alternative daily cover, disposal of organic waste, edible food recovery, disposal of bedding material and manure from stables, extensive data reporting, customer outreach, education, monitoring, and enforcement, and mandated waste diversion requirements. The proposed Franchise Agreement includes the addition of language reflecting new and proposed legal requirements that cover the following legislation. . AB 939 - (1989) INTEGRADED WASTE MANAGEMENT ACT Jurisdictions are required to achieve a specified minimum landfill diversion rate calculated by per capita disposal expressed in pound/person/day (PPD) of all solid waste. CR&R will be responsible for ensuring that the City meets or exceeds its mandated diversion rate. . AB 341 - (2011) MANDATO COMMERCIAL RECYCLING Establishes a statewide recycling goal of 75% through source reduction, recycling, and composting. Jurisdictions are required to implement commercial and multi- family recycling programs for businesses subject to the law. The proposed Franchise Agreement would implement multiple containers for separating materials by type at the point of discard so they can be recycled (source separated system) for all residences and businesses to incorporate organics, recycling, and City Council Agenda Report February 4,2020 Paqe 3 of 7 o a refuse. Currently, most residential properties have source separated bins for recycling and refuse. AB 1594 _ (2014) GREEN MATERIAL ALTERNATIVE DAILY COVER (ADC) Beginning January 1,2020, green waste that was utilized as ADC at landfills will no longer count as diversion credit established by AB 939. AB 1826 - (2015) MANDADORY COMMERICAL ORGANICS RECYCLING (MORe) Requires businesses to recycle organic waste on or after April 1, 2016. Organic waste means food waste, green waste, landscape and pruning waste, nonhazardous wood waste, and food-soiled paper. Edible food recovery is also a component. The regulation implementation schedule is dependent upon the amount of waste generated per week. Qualifying multi-family units are also required to recycle green waste. a 17 1 HORT-LIVED CLIMATE POLLUT ORGANIC WASTE METHANE EMISSIONS REDUCTIONS SB 1383 regulations willtake effect in2022. SB 1383 establishes a statewide goal for 75o/o reduction in landfill disposal of organic waste. lt also establishes a target that not less than 20% of currently disposed edible food is recovered for human consumption by 2025. This regulation includes manure, wood, paper and cardboard in the organics classification. SB 1383 applies to all properties and businesses, entails extensive record keeping, monitoring, education, outreach, inspection for contamination, and enforcement. CalRecycle may impose penalties for compliance failure. Effective January 1,2024, jurisdictions may be required to impose penalties for noncompliance on generators in their jurisdiction. The proposed scope of services provides for the following modifications from the current agreement, many of which are necessary to address the more stringent regulations discussed above: o 1O-year term with two five-year extension options;o Transition of all customers to a three-container system (refuse, organics, recyclables);o Additional container sizes;. Customer rates inclusive of costs to comply with key legislation and program requirements;. Expanded organics program;. Stable manure and bedding guaranteed compost disposal;o Additional cyber insurance requirements;. CR&R accountable for compliance with state mandated diversion standards;o CR&R to assist with educating customers about edible food recovery but will not be responsible for collection and distribution. City Council Agenda Report February 4,2020 Paoe 4of7 To comply with solid waste source separation directives and diversion standards, all residential customers would be provided a three-cart system (refuse, recyclables, and organics). The residential organics cart would provide for disposal of green waste and food waste commingled. Commercial and multi-family customers would also be transitioned from current mixed waste bins to a source separation system. This would include the introduction of four cubic yard split-bins to accommodate space constraints. The split bins would allow for refuse in one portion and recyclables in the other portion. CR&R would also provide larger two cubic yard organic food waste bins for food service establishments, and would conduct SB 1383 mandated inspections, monitoring, and enforcement. Customer violation fees for repetitive contamination of recyclable and organic containers may be assessed for continued compliance failure. The proposed Franchise Agreement places diversion requirements on CR&R should the City fail to comply with State diversion standards. Residential and Co mmercial Rates: The proposed residential and commercial rates would remain competitive within the current regional market. The following tables compare the proposed rates with the City's current rates and those of other cities serviced by CR&R. Residential Rates (monthly) Jurisdiction 30-35 gal cart 60-65 gal cart* 90-100 gal cart San Juan Capistrano (Current)s18.46 5le.es s21.63 San Juan Capistrano (Proposed )* *s21.00 522.O0 s24.00 San Clemente 52t.46 522.r8 N/A Laguna Niguel s2O.37 s21.6s s23.60 Aliso Viejo s19.46 s19.46 N/A Laguna Hills s1s.11 s1s.1r.s1s.11 *Most common residential cart size in San Juan Capistrano ** Proposed rates effective July 1,2020 With respect to the commercial rates listed on the following page, the City and CR&R will be working with individual businesses to identify the appropriate combination of waste and recycling collection options to mitigate rate increases associated with regulatory compliance. City Council Agenda Report February 4,2020 Page 5 of 7 Jurisdiction 2-CY Bin 3-CY Bin 4-CY Bin San Juan Capistrano (Current)$70.08 5ro7.r7 51.40.17 San Juan Capistrano (Proposed)*See.eo S1s2.o7 s199.80 San Clemente Not offered s1ss.s4 5207.74 Laguna Niguel 584.4s 5147.02 s 168.e7 Aliso Viejo Not offered 51.17.37 s1s6.s0 Laguna Hills Not offered s12o.s4 Si.s6.o6 Commercial Trash Rates (lx/week Collection) *Proposed rates effective July 'J.,2020 Commercial Recycling Rates (lx/week Collection) Jurisdiction 2-CY Bin 3-CY Bin 4-CY Bin San Juan Capistrano (Current)s43.43 s66.8i.s86.86 San Juan Capistrano (Proposed)*$se.e4 ier.24 s119.88 San Clemente Not offered 569.4s sso.2s Laguna Niguel 542.2s s73.s1 s84.49 Aliso Viejo Not offered $6s.6e sss.41 Laguna Hills S+¡.oo ss0.8s s62.s4 *Proposed rates effective July t,2O2O There are also modifications to the stable manure and bedding rates in the proposed Franchise Agreement. The eleven stables in the city generate approximately 40% of the city's commercial solid waste stream with the collection of manure and stable bedding. This product, when composted, assures that the City reaches the state mandated diversion rate. However, in 2017, the composter that had historically accepted the stable product at an extremely low rate declined to accept the product, resulting in most material being disposed of at the landfill. This change increased the disposal cost and impacted City Council Agenda Report February 4,2020 Paqe 6of7 the City's mandated diversion rate. CR&R has since located another composter to accept the product, albeit at an increased rate, and would guarantee continued composting. The impending SB 1383 regulations will classify manure as organic material and require jurisdictions to divert the product from landfills. The following table provides a comparison of current rates and proposed manure and stable bedding rates. Stable Rates CR&R has also agreed to continue several free services in the proposed Franchise Agreement including free soil disposal, free solid waste collection and disposal services for City facilities, streets and bus stops, and delivered waste from City vehicles and authorized contractor vehicles. ln addition to continued services, CR&R would reimburse the City for Franchise Agreement negotiation costs, offer a part-time equivalent CR&R Sustainability Representative, and provide additional funding to support the City's increased efforts to ensure that the City, residents and businesses are in compliance with the evolving state regulations. Pending Council approval of the recommended action, staff will return for approval of amendments to existing ordinances related to the collection and disposal of solid waste, organic waste, edible food recovery, and recyclable materials in order to maintain consistency between local regulations, state laws governing solid waste disposal and recycling, and the Amended and Restated Franchise Agreement. lmplementation of the new rates would also be subject to Prop 218, which prescribes the public process required prior to modifying fees for public services. FISCAL IMPACT: Proposed residential and commercial rates are discussed earlier in this report. To avoid impacts to the General Fund, under the proposed Franchise Agreement, the City would receive additional revenue to offset additional costs that will be required for legislative and regulatory compliance. Proposed Customer Rates Effective 71t12020 Commercial Roll-off Stable Bedding Rates Current Rate Effective TltlLe Average Tons Per Pull Current Customer Rates Effective TlLlLe Proposed Rate Effective 7lL|aOaO Average Tons Per Pull s19s.00Per Pull Rate Szoi..s4 n/a s201.s4 sLes.oo n/a s18.00 1,6 s288.00 Szo.eo 16 542L.76Per Ton Rate Total Average Customer Rate s489.s4 s616.76 Per Pull City Council Agenda Report February 4,2020 Paqe 7 of7 ENVIRONMENTAL REVIEW Although the provision of solid waste handling services is an activity supported in part through a public agency contract and therefore may be considered a "project" under the California Environmental QualityAct ("CEQA") (Pub. Res. Code SS 21000 et seq.) (14 Cal. Code Regs. $ 15378(a)(2)), the City Council approval of the Amended and Restated Agreement is not a project that could have a significant effect on the environment in that the Amended and Restated Agreement (i) is merely the continuation of an existing service in the city; and (ii) will not result in an increase of trucks on City streets beyond those currently used in providing these services. (CEOA Guidelines section 15061 (bX3)) PRIOR CITY COUNCIL REVIEW: On May 21,2019, the City Council approved Amendment No. 1 to the Professional Services Agreement with R3 Consulting Group to conduct a limited Request for lnformation Process and appropriate additional funds. On November 5, 2018, the City Council approved an Agreement with R3 Consulting Group to assist with current hauler franchise agreement negotiations. On April 3, 2018, the City Council approved a draft Request for Proposals for consultant services for negotiating a new solid waste handling franchise agreement with the City's current solid waste franchise contractor and, if necessary, for assistance with a competitive bidding process for a new solid waste franchise agreement. On February 18, 2014, the City Council adopted Resolution 14-02-18-04 approving the Amended and Restated Agreement for Solid Waste Handling Services with CR&R lncorporated and authorized the Mayor to execute the Agreement. MMITTEE/BOARD REVIEW AND RECOMMENDATI This item does not require commission, committee, or board review NOTIFICATIONS: a a a a Dean Ruffridge, CR&R lnc. Tom Koutroulis, OC Waste & Recycling Mike Johnson, Republic Services Chip Monaco, Waste Management Services George Peppas, San Juan Capistrano Chamber of Commerce ATTACHMENTS: Attachment 1: Current February 18,2014, CR&R Franchise Agreement Attachment 2: Resolution Approving Proposed CR&R lnc. Franchise Agreement AGRBEMENT BETWEEN CITY OF'SAN JUAN CAPISTRANO AND CR&R INCORPORATED FOR SOLID WASTE HANDLING SERVICES EFFECTM FEBRUARY 18, 2014 ,..-.) Attachment 1 1 of89 TABLE OF CONTENTS Page SECTION I. RECITALS SECTION 2. 2.t 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.t3 2.t4 2.15 2.16 2.17 2.18 2.19 2.20 2.21 2.22 2.23 2.24 2.25 2.26 ))1 2.28 2.29 2.30 2.31 2.32 2.33 2.34 2.35 2.36 2.37 2.38 2.39 2.40 2.4r DEFINITIONS AB 341 AB 939 Affiliate.,.. Animal Waste........,.,. Applicable Law...,..... Billings.,..,. Cart. City. City City City Council Limits Manager Collect/Collection ........ Commercial Premises.. Container... Contractor County Agreement Customer,....... Dwelling Unit, EfI'ective Date Environmental Laws Franchise Area .......... Franchise Fee..... Green Waste...,.... Gross Receipts Hazardous Substance Hazardous Waste 6 7 7 7 7 7 7 I I 8 8 8 8 8 Household Hazardous Waste .... Household Sharps Waste Multi-Family Dwelling Municipal Code.,........., Person,...... Premises Recyclable Material Residential Premises Rolloff Box Single Family Dwelling . Solid Waste Solid'Waste Handling Services Attachment 1 2of89 2 2 2 2 2 J J J J J J 4 4 4 4 4 4 4 4 5 5 5 5 5 5 5 6 6 6 Special Wastes -1 Paqe 2.42 2.43 2.44 2,45 SECTION 7 7.1 7.2 t.J 7.4 7.5 Temporary Service Term 9 9 9 9 Transformation....... Universal Waste SECTION 3. GRANT OF EXCLUSIVE FRANCHISE.,...II3.1 Scope of Franchise..,..,.. 3.2 Matters Exoluded from Scope of Franchise......l0 SECTION 4. ENFORCEMENT OF EXCLUSIVITY ......,..,.....,.......1 1 SECTION 5. ACCEPTANCE; W41V8R.....,............,........1 l SECTION 6. TERM ll CONDITIONS TO EFFECTIVENESS OF AGREEMENT ,,12 Accuracy of Representation 12 t2 l2 t2 12 Absence of Litigation SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY CONTRACTOR.12 8.1 General l2 8.1.1 Equipment. 8.I.2 Performance Standards ,,',.,.,,.,|2 Furnishing of Insurance, Bond, and Letter of Credit.,.. Effectiveness of City Council Action Payment of Fees and Costs 8.1,3 Noise and Disruption 8.1.4 Collection Times...... 8.1 .5 Collection Schedule . 8.2 Residential Solid Waste Handling Service 8.2.1 Single Family Dwellings - Automated Collection 8.2.6 Multi-Family Dwelling Customers 8.2.6.1 Mixed Waste Bins........... 8.2.6.2 Source Separated Collection Program .....13 t2 13 t3 T4 ..13 8.1.6 Commingling of Routes........,....,.,. 8. 1,7 Replacement of Containers............. 8.1 ,8 Contractor's Containers, 8.1.9 Missed Pick-ups 15 8.1.10 Record of Non-collection ...... I 5 ...16 16 8.2.3 8.2.4 8.2.s Recycling Program for Single Family Dwellings Using Carts...........,...17 Green Waste Collection for Single Family Dwellings ...,....17 City Manager Authority to Oversee Encouragement of Recycling 18 .... I 8 l9 l9 8.2.7 Bulky Item Service for Single Family Dwellings,,,,,,.,.,.20 8.2.8 Bulky Item Service for Multi-Family Dwellings 21 8.2.9 Targeted Neighborhood Abandoned Items Sweep ,',,,',21 Attachment 1 3of89 -11- Page 8.2.10 Bulky Item Diversion. 8.2.11 Proper Handling of Bulky Items...,..... 8.2.12 Residential Drop Off of Household Sharps Waste 8.2,t3 Residential Drop-Off of Universal Waste.........,.... 8.2.14 Curbside Household Hazardous Waste Collection 8,3 Commercial Solid Waste Handling Services 8.3,1 Commercial Bins and Rolloff Boxes....... 8.3.2 Commercial Carts .,......, 8.3.3 Commercial Recycling Services 8.3.4 Commercial Bulky Item Service 8.3.5 Food Waste Collection Services 8.3.6 Monitoring and Cleaning of Bin Enclosures Other Collection Programs As May Be Required by Law Roll Out Service....,.. Manure Collection 'femporary Services Recycling Obligations and Public Education Program. 8.8.1 Minimum Requirements for Collection of Recyclable Material, Green'Waste and Rolloff Boxes ......... 8.8.2 Extent of Applicable Franchise Rights 8.9.2 Collection at City Sponsored Events 8.9,3 Recycling Assistance for Special Events....... 2t 2t 22 22 8.4 8,5 8.6 8.7 8,8 22 22 22 22 23 23 23 24 24 24 24 25 25 25 ,,.''26 8,8.3 AB 939 and AB 341 Obligations, Guarantee, and Indemnification.. 8.8.3.1 Warranties and Representations.,.. .,.....,. 8.8.3.2 Mutual Cooperation S.8,3,3 WasteReductionandProgramImplementation,,........., 8.8.3.4 Guarantee and Indemnification .. 8.8.4 Waste Generation/Chancterization Studies 8.8.5 Implementation of Additional Diversion Services 8.9 AdditionalServices.....,.. 8.9.1 Public Service Calls From City Departments ...'.'.,........,....'28 ?6 26 26 26 )1 28 28 28 29 29 298.9.4 Holiday Trees 8.9.5 Services for Public Trash Cans Along Streets and at Bus Stops ....".'....29 8.9.6 DirtDisposal....)q 8.9.7 Free Disposal and Processing of City Delivered Waste 30 Special Services 308.10 8.1 1 Non-Profit Assistance ..'...'......30 SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE HANDLING SERVICE COLLECTION VEHICLES 9.1 9.2 9.3 9.4 9.5 9,6 30 General..,.......,..,,...30 Air Quality/Fuel Requirements..,... Specific Requirements Costs of Operation and Damages....,........,.33 City Inspection............ ...','......33 Conection of Defects and Removal of Vehicles from Use within City ...'....'...,33 Attachment 1 4of89 -l1l- Pase SECTION 10. CONTRACTOR'S SOLID WASTE I-IANDLING SERVICE PERSONNEL Uniforms ........ Identifi cation of Employees."...... Driver's License Screening of Field Employees Discontinued Use of Unsatisfactory Employees Training and Legal Compliance Customer Service 10.7.1 Office Hours. 10.7.2 Telephone Customer Service Requirements 10.7.2.1 Toll Free Number..... 10.7.2.2 CallResponsiveness.... 10.7 .3 Complaint Documentation......,...,.,.,... 10.7.4 Resolution of Customer Cornplaints.., 1 0.7.5 Government Liaison.... 10.8 Education and Public Awareness. 10,8.1 General,.,.,, 10.8.2 Written Program Materials 1 0.8.3 Public Outreach.... 1 0.8.4 On-going Education Requirements 10.8.4.1 Annual Notices...... 10.8.4.2 How-To Brochure 10.8,4.3 Corrective Action Notice 10,8.4,4 Contractor Representative. 10.8.4,5 WebSitePage................... 10.8,5 Public Eduoation Fund SECTION 1 I. CONTRACTOR'S CONSIDERATION I I .l Reimbursement of Negotiation Costs.,..........,. 1 1.2 Administrative Cost Reimbursement..........,.... I 1.3 Franchise Fee 13.3. 1 Computerization of Account Information 13.3.2 Minimum Computer Programming Requirements ............ 13.3.3 Billing Inquines 13.3.4 Distribution of Public fnformation 10,1 10.2 10.3 10.4 10.5 10.6 r0.7 34 34 34 ,.34 ,,34 ..34 34 35 35 35 35 35 35 36 36 36 36 36 36 37 )t 37 ,..,J t ....37 37 38 39 39 39 ...39 I 1.3.1 Monthly Franchise Fee ,........... Il.4 Services at City Facilities...,.. SECTION 12. CHARGE FOR LATE PAYMENTS............,.........40 SECTION I3. CONTRACTOR'S BILLING SERVICES AND SYSTEMS.......... 13.1 Billing 13.1.1 Suspension of Service Due to Non-Payment.. 13.1.2 Unoccupied Premises.... 13.2 Minimum Requirements for Billing Statements 13,3 Billing System. 39 40 40 40 4l 4t 42 42 ,,,...,.,,,,,'.,.42 ........,........43 ..,.,..,,43 Attachment 1 5of89 -lV- Page 13.4 Payment, Accounting Systems...... 13.4.1 Collection and Processing of Payments.....,...... 13.4.1.1 Accounting and Deposit of Funds. 13-4.1.2 Allocation of Funds SECTION 14. FAITHFUL PERFORMANCE 14,1 Surety ..,, 14.1.1 Forfeiture of Surety...... 14,1.2 Use of Surety by City 14.2 Replacement Letter of Credit ',,',43 ,,,,.43 ,.,''43 ,.,,,44 44 44 44 44 45 SECTION 15 15.1 15.2 Minimum Scope of Insurance Minimum Limits of Insurance I 5.2.1 Comprehensive General Liability I 5,2.2 Automobile Liability..... 15.2.3 Workers' Compensation and Employers Liability Deductibles and Self-lnsured Retentions.......... Other Insurance Provisions. I 5.4. I General Liability and Automobile Liability Coverage ......... 15.4.2 Workers' Compensation and Employers Liability Coverage 45 45 15.3 15.4 15.5 15.6 15.7 45 45 46 46 46 46 46 46 47 47 47 47 | 5.4.3 Environmental Pollution Control Insurance 15.4.4 All Coverages....,. Acceptability of lnsurers. Verifi cation of Coverage. Loss or Reduction in Insurance SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND LIMITATIONS ...,..,.,.,..,..,..47 16.I General ..........,.,....47 16.2 Assignment to be Broadly Interpreted ','',,4716.3 Nature of Agreement - Personal to Contractor...,..........48 16.4 Procedure for Consideration of Assignment....,........ ..................,....48 SECTION 17. REVIEW OF SERVICES AND PERFORMANCE 17.1 PerformanceHearing SECTION 18. CITY'S REMEDIES; DEFAULT AND TERMINATION 18.2 Failure to Cure 18.1 Notice of Default.. 50 s0 51 18.3 Review by City Manager .....5 I 18.4 City Council Review 51 18.5 Performance During Reviews........ 18.6 Termination without Right to Cure 18.7 Liquidated Damages ...,.........,.52 18.7.1 General ......52 Attachment 1 6of89 ..51 ..51 Paqe 18.7,2 18.7.3 Service Performance Standards; Liquidated Damages for Failure to Meet Standards Calculations for Liquidated Damages....,...... 18.7.3.1 CollectionReliability. 18.7.3.2 CollectionQuality,..... 18.7.3,3 Custome¡Responsiveness.....,.., 18.7 .3.4 Timeliness of Submissions to City ... Process for Assessment of Liquidated Damages....,. Timing of Payment 53 53 53 54 54 54 55 55 SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING.......,.,...'.."55 18.7.4 18.7.5 23.2 Quarterly Reports...... 23.3 Annual Reports.....,... 19.1 AdministrativeHearing 19.2 Other Remedies; Claims 19.3 Actions for Damages,....,., SECTION 20. CITY'S ADDITIONAL REMEDIES SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY ...,....,........... 21.1 Provision of Service 21.2 Possession of Equipment 21.3 Exclusions from Right to Possession of Equipment without Compensation SECTION 22. PRIVACY SECTION 23, REPORTS AND ADVERSE INFORMATION .........55 .........56 56 56 56 56 57 57 57 58 ..57 ...,.....58 .........5923.4 Adverselnformation 23.5 Disaster Plan ........... 23.6 Failure to Report 60 60 SECTION 24. COMPENSATION ...... 24.1 Contractor Rates.......,.., 24,5 Discretionary Adjustments 24.6 Grants....... .......60 ..60 60 6l 24.2 Resolution of Disputes Regarding Rate Adjustments...,.. 24.3 Annual Consumer Price Index Adjustments..................., 24.4 Limitations to Annual CPI Adjustments,.,.,....... .,,........61 24.4.1 Four Percent (4%) Cap..,.....,61 24.4.2 Compliance with Agreement ,.......'.,...'.,.. 6l .......,...61 62 SECTION 25. IDENTIFICATION OF CONTRACTOR ..,.,.,,,,,...,.,,..62 SECTION 26. FLOW CONTROL; COIINTY AGREEMENT,............... ..,'....,..'..62 ......63 Attachment 1 7 of89 SECTION 27. INDEMNIFICATION -vt- Page 27,1 General 27.2 Hazardous Substances Indemnification.....,.............. SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS 28.1 Maintenance and Inspection of Records ....,...,.. 28.2 CERCLA Defense Records..., 28,3 Audits.."...... 28.3.1 Examination of Services ,. 28.3.2 Annual Residential Audit. 63 64 66 66 66 66 66 67 67 ot SECTION 29. TRANSITION OBLIGATIONS.,....... SECTION 30. GENERAL PROVISIONS 30.1 Force Majeure 30.2 Independent Contractor...,. 30.3 Pavement Damage 30.4 Property Damage....,., 30,5 Right of Entry . 30.6 Law to Govern; Venue..,. 30.7 Amendment..................... 30.8 Notices 30.9 Savings Clause 30.10 Exhibits Incorporated 30.1 1 Joint Drafting............ 30.12 Attorneys' Fees and Litigation Costs ......... 30.13 City's Authorized Agent.. 30. 1 4 Integrated Agreement....,. 30.15 Section Headings 30.16 Compliance with Law... EXHIBIT A MAXIMUM RATE SCHEDULE FOR SOLID WASTE, HANDLING SERViCES EXHIBITB CONTAINERSPECIFICATIONS ....'.,,'.67 ......68 ....,.68 68 68 68 ....,.....68 69 69 69 69 69 70 70 70 70 Attachment 1 8of89 -vll- AGR.EEMENT This Agreement ("Agreement") is entered into to be effective as of the 18th day of February 2074, by and between the City of San Juan Capistrano ("City") and CR&R Incorporated, ("Contractor") (collectively, the "Parties") to provide an exclusive franchise for Solid Waste Handling Services within the City. RECITALS: A. The Legislature of the State of California, by enactment of the Califomia Integrated Waste Management Act of 1989 ("AB 939"), has declared that it is in the public interest to authorize and require local agencies to make adequate provision for the disposal of all Solid Waste within their jurisdictions, B. Pursuant to California Public Resources Code Section 40059(a)(1), the City Council of the City has determined that the public health, safety, and welfare require that an exclusive franchise agreement be awarded to a qualified Solid Waste enterprise for Solid Waste Handling Services within the City Limits. C. City and Contractor are mindful of the provisions of the laws. governing the safe Collection, transport, recycling, and disposal of Solid Waste, including AB 939, AB 341, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), City and Contractor desire to leave no doubts as to their respective roles, and to memorializc that by entering into this Agreement, City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, who is "arranging fot" the Collection, transport for disposal, composting, and recycling of municipal Solid Waste in the City which may contain Hzardous Substances. City and Contractor understand and agree that it is Contractor, and not City, who will arrange to Collect Solid Waste, that City has not, and, by this Agreement does not, instruct Contractor on its Collection methods, nor supervise the Collection process, nor do the Parties intend to place title to such Solid Waste in City, but rather intend that whatever, if any, title in and to such Solid Waste that otherwise might exist in or with City in the absence of this Agreement is hereby transfened to Contractor, and further that if Contractor gains title to such Solid 'Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. By entering this Agreement City and Contractor further desire to confirm that Contractor has agreed to indemnify the City in connection with any claims relating to the inadvertent or intentional Collection, transportation and/or disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. E, Contractor has agreed, as part of this Agreement, to provide such services as are necessary or desirable to ensure City complies with the requirements of AB 939, AB 341 and Public Resources Code Section 40000, et seq. F. Contractor and City previously entered an agreement dated December 7, 7996, which agreement was amended on six different occasions (collectively the "Prior Agreement"), This Agreement is intended to restate the various provisions of the Prior Agreement in a single document, and further to amend the Prior Agreement in various respects including specifically Attachment 1 9of89 by eliminating the so called ooevergreen clause" contained therein, and accordingly it shall supersede and replace the Prior Agreement. COVENANTS: Based upon the foregoing Reoitals a¡rd for good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the Parties, City and Contractor hereby agree as follows: SECTION 1. RECITALS The Parties acknowledge the above recitals are true and correct and incorporate them herein as if they were fully restated. SECTION 2. DEFINITIONS Whenever any term used in this Agreement has been defined by the California Public Resources Code, the defìnition of such term set forth therein shall apply unless the term is otherwise delined in this Agreement. 2.t AB 341 "AB 341" shall mean Assembly Bill 341 from the 2011-2012 Regular Session of the California Legislature (Chapter 476, Statutes 2011). 2.2 AB 939 "AB 939" shall mean the California Integrated Waste Management Act of 1989, currently codified as Califomia Public Resources Code Section 40000 et seq., as it may be amended from time to time. 2.3 Affiliate "Affiliate" means a business in which Contractor owns a direct or indirect ownership interest, a business (including corporations, limited and general partnerships and sole proprietorships) which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof, and (ii) Section 318(a)(5)(C) shall be disregarded, For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less th¿m ten percent (10%) shall be disregarded, and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. Attachment 1 10 of 89 ., 2,4 Animal Waste "Animal Waste" shall mean animal carcasses, dead animals, and/or parts or portions of dead animals. Animal Vy'aste shall not include manure. 2.5 Applicable Law "Applicable Law" shall mean all federal, state, county, and local laws, regulations, rules, orders, judgments, decrees, permits, approvals, or other requirements of any governmental agency having jurisdiction over an aspect of this Agreement that are in force on the Effective Date, and as may be enacted, issued or amended thereafter, including without limitation, City's Municipal Code, AB 939 and AB 341. 2.6 Billineq "Billings" or "Billing" or "Bill" means the statements of charges provided to Customers for services rendered by Contractor pursuant to the terms of this Agreement. 2.7 Bins "Bins" shall mean a metal or plastic Container, including dumpsters, compactors, and any similar such devices with a capacity of under ten (10) cubic yards. 2.8 Bulkv Items "Bulky ltems" means Solid Waste that cannot and/or would not typically be accommodated within a Cart including specifìcally: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators with and without Freon, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); residential wastes (including wood waste, tree branches, scrap wood, in the aggregate not exceeding one cubic yard per Collection); and clothing, For purposes of this Agreement, and notwithstanding any provision hereof to the contrary, Bulky Items shall specifically include items commonly known in the waste industry as "brown goods" and "e-waste". Bulky Items do not include car bodies, Construction and Demolition Debris or (with the exception of appliances/white goods described above) items that caffiot reasonably be moved with equipment of the type which, pursuant to industry standards, would normally be carried in a truck Collecting Bulky ltems, In the event a question arises as to whether a specific item, or category of items, meets the definition of Bulky ltems, City shall be responsiblc to determine whether said definition shall apply, which determination shall be final and binding on the Pa¡ties. 2.9 Cart "Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi-automated process, as opposed to a manual process of lifting and dumping. Attachment 1 11 of89 -J- 2.10 etly "City" shall mean the City of San Juan Capistrano, a municipal corporation, located in Orange County, California. 2.11 City Council "City Council" shall mean the City Council of City. 2.12 Cirv ts "City Lirnits" shall mean the tcrritorial boundarics of the City together with all amendments and changes thereto, which boundaries are depicted on maps, incorporated herein by reference, that are kept on file in the office of the City Clerk of the City of San Juan Capistrano, and which are from time to time amended to reflect changes. 2.13 Citv Manaeer "City Manager" shall mean the City Manager of the City of San Juan Capistrano or his or her designee. 2.14 Collect/Collection "Collect" or "Collection" shall mean to take physical possession of, transport, and remove Solid Waste from a Premises. 2,15 CommcrcialPremises "Commercial Premises" means Premises upon which business activity is conducted, including but not limited to retail sales, serviceso wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property. Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and motels are operated and upon which Multi-Family Dwellings exist shall be deemed to be Commercial I'remises. 2.16 Container "Container" means any and all types of Solid Waste receptacles, including Carts and Bins. 2.17 Contractor "Contractor" shall mean CR&R Incorporated, the entity granted the franchise pursuant to this Agreement, or any party permitted pursuant to the terms hereof permitted to become the successor or assignee thereof. Attachment 1 12 of 89 -4- 2.18 County Agree¡nent "County Agreement" shall mean that certain waste disposal agreement entered between various Orange County cities, including specifically the City of San Juan Capistrano, and the County of Orange relating to the use of County landfills for the disposal of Solid Waste Collectcd in such cities, and which is on file in the office of City's City Clerk, as the same may be amended from time to time. 2.19 Customer "Customer" or "Customers" shall mean any person receiving Solid Waste Collection services from Contractor within the Franchise Area. 2.20 Dwellina Unit "Dwelling Unit" shall mean one or more rooms designed for occupancy by one family for living and sleeping purposes and containing kitchen facilities or an area designed for the preparation of food for use solely by one family, 2.21 Effective Date "Effective Date" shall mean February 18th, 2014, 2.22 EnvironmentalLaws "Environmental Laws" means all federal and state statutes, county, local and City ordinances concerning public health, safety and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 USC $9601 et-qgq,; the Resource Conservation and Recovery Act,42 USC $6901 etseq.; the Federal Clean Water Act,33 USC $1251 et seq.; the Toxic Substances Control Act, 15 USC $2601 et seq.; the Occupational Safety and Health AcI,29 USC $651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code $25100 et seq.; the Carpenter-Presley-Tanner Hazardous Substance Account Act, Califomia Health and Safety Code $25300 et seq.; the Porter-Cologne Water Quality Control Act, California Water Code $13000 9t seq,; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code ç25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 2.23 Franchise Area "Franchise Area" shall mean all Premises within the City Limits, including Premises which may be annexed and thereby added to the City Limits following the Effective Date. 2.24 Franchise Fee "Franchise Fee" shall mean thc franchise fce set forth and more fully defined in Section 1 t hereof. Attachment 1 13 of 89 -5- 2.25 Green Waste "Green Waste" means tree trimmings, grass cuttings, dead plants, leaves, branches and dead trees (not morc than six (6) inches in diameter or 48 inches in length) and similar organic materials. 2.26 Gross Receipls "Gross Receipts" shall mean and include all monies, fees, charges, consideration, and revenue received, charged or imputed to Contractor and any Affiliate of Contractor, in connection with, arising from, or in any way attributable to the Solid Waste Handling Services carried out by or on behalf of Contractor pursuant to this Agreement. Gross Receipts includes, without limitation, monthly Customer charges for Collection of Solid Waste, without subtracting Franchise Fees, fees imposed and collected pursuant to this Agreement, sums collected in connection with Temporary Services, revenue received by Contractor attributable to landfill, material processing and composting tipping fees, and transportation charges. Gross Receipts does not include revenue from the sale of Recyclable Material, Green Waste, food waste, and othcr material which is diverted from disposal or the receipt of govemmental funding. 2.27 HazardousSubstance "Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances," "hazardous materials," "Hazardous 'Wastes," "toxic waste," "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compcnsation and Liability Aot of 1980, 42 USC $9601 et sqq.; (ii) the Hazardous Materials Transportation Act,49 USC $5101, et seq.; (iii)the Resource Conservation and Recovery Act, 42 USC $6901 et seq.; (iv) the Clean Water Act, 33 USC $1251 et seq.; (v) California Health and Safety Code $ $251 15-25117 , 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC 57401 qt seq,i and (vii) California Water Code $13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently exisling or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local laws or regulations, including any of the Environmental Laws, currently existing or hercinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by- products. 2.28 Hazardous Waste "Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of Califomia in Health and Safety Code $25110.02, $25115, and $2511.7 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous'Waste by the US Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC $6901 et seq,), all future amendments thereto, and all rules and regulations promulgated thereunder. Attachment 1 14 of 89 -6- 2.29 Household Hazardous Waste "Household Hazardous Waste" shall mean any Hazardous Waste generated by a Single Family or Multi-Family Dwelling, including but not limited to: automobile maintenance and repair products (e.g., motor oil, oil filters, antifreeze, brake fluid, etc.); lawn and garden chemicals (e.g., pesticides, herbicides, fungicides, etc,); cleaning products (e.g., bathroom cleaners, drain cleaners, chlorine bleach, solvents, oven cleaners, etc.); and home improvement supplies (e.g., stains, paints, varnish, paint thinners, chemical strippers, glue, pool chemicals, etc.). Household Hazardous Waste does not include any waste generated from a business operating out of a Single Family or Multi-Family Dwelling or waste otherwise generated from operating a business. 2,30 Household Sharps Waste "Household Sharps Waste" shall mean home generated sharps waste as defined in Health and Safety Code Section 177671 and includes hypodermic nccdles, pen needles, intravenous needles, lancets, and other devices that are used to penetrate the skin for the delivery of medications, which are generated from a Customer at Single Family or Multi-Family Dwelling. 2.31 Multi-Family-Dwellinri "Multi-Family Dwelling" means any building or lot containing more than one Dwelling Unit at which Contractor determines (and City agrees) the Dwelling Units must receive Solid Waste Collection services through the use of shared Bins, since they are not reasonably able to store Carts or otherwise receive individualized Solid Waste Collection service through the use of the automated Collection systcm utilizing Carts contemplated by this Agrccment for Single Family Dwellings, Unless otherwise determined as set forth above, any Premises upon which four (4) or more Dwelling Units exists shall be deemed to be a Multi-Family Dwelling. Any ambiguity as to whether a Customer's Premises qualifies for purposes of this Agreement as a Single Family Dwelling or Multi-Family Dwelling shall be resolved by the City Manager whose decision shall be frnal. 2.32 Municipal Code "Municipal Code" shall mean City's Municipal Code. 2.33 Person "Person" shall mean any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California, the County of Orange, towns, cities, and special purpose districts. 2.34 Premises "Premises" shall mean any land, building, and/or structure within the City Limits where Solid Waste is generated or accumulated. Attachment 1 15of89 -7 235 RecyclableMaterial "Recyclable Material" or "Recyclables" shall mean that Solid Waste discarded within the Franchise Area which is capable of being recycled, including Green Waste. 2.36 ResidentialPremises "Residential Premises" shall mean all premises upon which Dwelling Units exist. Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and motels are operated or upon which Multi-Family Dwellings exist shall be deemed to be Commercial Premises. 2.37 Rolloff Box "RollofT Box" means Solid Waste Collection Containers of ten (10) yards or larger, including compactors. 2.38 Sinsle Family Dwelling "Single Family Dwelling" means a building or lot containing one Dwelling Unit, and, for purposes of this Agreement, includes buildings and lots with more than one Dwelling Unit where such Dwelling Units are determined by the City to be reasonably able to receive individualized Solid Waste Collection service by the automated process utilizing Carts contemplated herein. Any ambiguity as to whether a Customer's Premises qualifies as a Single Family Dwelling or Multi-Family Dwelling shall be resolved by the City Manager whose decision shall be final. 2.39 Solid Waste "Solid Waste" shall mean and include all discarded putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, rubbish, construction waste, industrial waste, commercial Solid Waste, Bulky Items, and any other discarded solid, semisolid, and liquid waste permitted to be disposed of at a Class III landfill and which are included within the definition of "Nonhazardous Solid Waste" set forth in the California Code of Regulations, as it may be amended from time to time. Solid Waste does not include hazardous (Class I) waste, low-level radioactive waste, untreated medical waste, or Special Wastes as defined herein. 2.40 Solid Waste l-landlinq Services "Solid Waste Handling Services" means the Collection, transfer, transport, recycling, processing, and disposal of Solid Waste for Premises within the City. 2.41 Special V/as!çs "Special Wastes" shall mean wastes other than Solid Waste including sewage, sludge, industrial sludge, asbestos, auto bodies, tires, used motor oil, Hazarðous Waste, Animal Waste, explosive substances, radioactive materials, and other materials which may not be disposed of at a Class III landfill or which require special handling. Attachment 1 16 of 89 -8- 2.42 Tgnrpomr:yService "Temporary Service" shall mean Solid Waste Handling Services provided by Contractor on an as-needed and temporary basis to any Prcmises within the City in conjunction with construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Rolloff Boxcs. 2,43 Term "Term" shall have the meaning ascribed in Section 6 of this Agreement' 2.44 Transfotmation "Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. "'Iransformation" does not include composting. 2.45 Universal Waste "Universal Waste" shall mean those hazardous wastes identified as univcrsal waste in Section 66261.9 of Title 22 of the Califomia Code of Regulations, including, but not limited to: florescent bulbs and tubes; household batteries (e.g,, D, AA, button-type, etc.); non-empty aerosol cans; electronic devices (e.g., televisions, computer monitors, cell phones, radios, video cassette recorders, etc.); and mercury containing devices (e.g., thermometers, thermostats, gauges, etc,), and generated by Single or Multi-Family Dwellings. Universal Waste does not include waste generated in the course of operating a business at a Single or Multi-Family Dwelling or waste otherwise generated from operating a business. SECTION 3. GRANT OF' EXCLUSIVE FRANCHISE 3.i Scope ofFranchisç Except as hereinafter expressly set forth, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege to Collect, transport, and dispose of all Solid Waste generated or accumulated within the Franchise Area. The exclusive franchise, right and privilege to provide Solid Waste Handling Services within City granted to Contractor by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the Term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law or future enactments limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth herein, Contractor agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractot as a result thereof. Attachment 1 17 of 89 -9- 3.2 Matters Excluded flom Scope of Franchise Notwithstanding any other provisions set forth in this Agreement to the contrary, the exclusive fralchise granted herein shall exclude the Collection, transportation, recycling, and disposal of: (A) any Solid Waste otherwise within the scope of this Agreement which is transported by a Self Hauler as that term is used in the Municipal Code, or any other City ordinance, resolution, regulation or policy, as such may be adopted or amended from time to time; (B) the sale or donation of Recyclable Material by the person or entity that generated such Recyclable Material (the "Generator") to any Person or entity other than Contractor; provided, however, to the extent permitted by law, if the Generator is required to pay monetary or non-monetary consideration for the Collection, transportation, transfer, or processing of Recyclable Material to any Person or entity other than Contractor, the fact that the Generator receives a reduction or discount in price (or in other terms of the consideration the Generator is required to pay) shall not be considered a sale or donation; (C) any Solid Waste otherwise within the scope of this Agreement which is Collected or transported to a disposal or recycling facility by City employees in the course and scope of their employment with City; (D) the Collection, transportation, or disposal of Hazardous Waste; Universal Waste; E-Waste; biohazardous waste; untreated medical waste; infèctious waste; Animal Waste; used cooking fats, oils, grease and similar waste; or other materials which do not constitute solid waste; (E) the Collection, transportation, and disposal of Construction and Demolition \üy'aste by a contractor, handyman, repairman, or other similar service provider, using its own equipment, as an incidental part of the services provided to its customers, rather than as a hauling service, provided that such \¡r'aste is not Collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials; (F) the Collection, transportation, and disposal of Green Waste and related Solid 'Waste by a gardener, or landscaper, as an incidental part of the gardening or landscaping services provided to its customers, rather than as a hauling service provided that such Solid Waste is not Collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials; (G) Solid Waste Handling Services provided by any Person having a legal right to continue doing so, pursuant to Public Resources Code Section 49520, et. seq', or otherwise, as long as and to the extent such legal right continues to exist; except that to the degree any tenitory in which Contractor has a franchise granted by another governmental entity is annexed into City during the Term, Contractor agrees the provisions of this Agreement shall apply to such territory and further acknowledges that Attachment 1 18 of 89 -10- this Agreement constitutes any notice required by the Public Resources Code in connection therewith. SECTION 4. ENFORCEMENT OF' EXCLUSIVITY Contractor shall be responsible for enforcing the exclusivity of this Agreement. City shall reasonably assist Contractor in its efforts to enforce the exclusivity hereof. In addition, City shall adopt such ordinances or other regulations as it deems to be necessary or desirable to protect the exclusive rights granted herein, City shall have the right, but not the obligation, to enforce the exclusivity hereof, including by instituting appropriate legal proceedings, and/or to request that Contractor do so. Contractor shall have an affirmative obligation to enforce such exclusivity provisions when requested to do so by City. SECTION 5. ACCEPTANCE; WAIVER Contractor agrees to be bound by and comply with all the requirements of this Agreement. Contractor waives Contractor's right to change the terms of this Agreement under federal, state, or local law, or administrative regulation. Contractor waives any right or claim to serve the City or any part of the City under any prior grant of franchise, contract, license, or permit issued or granted by any governmental entity including any right under Section 49520 of the Public Resources Code. Additionally, by and upon the effectiveness of this Agreement, Contractor agrees to the termination of the Prior Agreement as of the Effective Date, agrees to waive any and all rights under the Prior Agreement, and agrees to release and hold the City harmless from any of the City's obligations thereunder, excepting, however, the right to compensation for services provided at the rates approved by City as of the Effective Date and the right to be credited for services already provided (such as situations where the maximum calls for Bulky Item services have been reached by a Customer; provided, howevet, nothing contained in this provision is intended to or shall relieve Contractor from any obligation existing under the Prior Agreement pertaining to insurance, indemnification, or other legal obligations to City or Customers (as opposed to obligations to provide service pursuant to the terms thereof), or from any obligation set forth in the Prior Agreement which are called out as surviving the termination thereof, and all such obligations, including specifically those indemnification obligations relating to Environmental Laws, general liability, and AB 939 shall survive the termination of the Prior Agreement. SECTION 6. TERM The term of this Agreement (the "Term") shall be for the period of time commencing on February 18, 2014, and ending at midnight on June 30, 2020, unless this Agreement is terminated sooner pursuant to Section l8 hereof, or otherwise. Attachment 1 19 of 89 -11- SECTION 7. CONDITIONS TO EFFECTIVENESS OF'' AGREEMENT The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Contractor's continued right to the benefits conveyed herein: 7 .l Accuracy of Representatiot'ì All representations and warranties made by Contractor and set forth in this Agreement shall be acourate, true, and correct on and as of the Effective Date of this Agreement. 7.2 Absence of Litigation There shall be no litigation pending in any court challenging the award of this exclusive franchise for Solid Waste Handling Services to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. 7.3 Furnishing of lnsurance" Bond. and Letter of Credit Contractor shall have furnished evidence of the insurance and Surety required by Sections 14 and l5 hereof, and shall comply with all ongoing requirements relating thereto. 7 .4 Effectiveness of City Council Action The City Council's Resolution approving this Agreement shall have become effective pursuant to California law. 7.5 Payment of Fees and Costs Contractor shall have made payment to City of all fees, costs and other payments due as provided in the Prior Agreement and more fully set forth in Section 11. SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY CONTRACTOR 8.1 General 8.1.1 Equipment Contractor shall furnish all labor, supervision, materials, supplies, and equipment necessary to provide for all services required by the terms of this Agreement. 8.1.2 Performance Standards Contractor shall perform Solid Waste Handling Services as required hereunder in a workmanlike manner consistent with good housekeeping standards and all relevant provisions of Applicable Law. Attachment 1 20 of 89 -12- 8.1.3 Noise and Disruption Contractor shall perform Solid Waste Handling Services as required hereunder in such a manner as to minimize noise and other disruptive impacts including, without limitation, those upon traffic. Contractor shall use its best efforts to coordinate its Collection schedules such that sireet sweeping on any given street shall occur the business day following Collection of Solid Waste by Contractor. 8.1.4 Collection Times Contractor shall not commence Collection of Solid Waste f'or Customers at Commercial Premises (excepting Multi-Family Dwellings) until 6:00 a.m. and for Customers at Residential Premises and ai Multi-Family Dwellings until 7:00 a.m,, nor shall such activities occur after 7:00 p.m. for all Customers. The City Manager may require Contractor to comply with time frames applicable to Residential Premises in connection with Collection of Solid Waste for Customers at Cómmercial Premises whose Premises are in close proximity to Residential Premises. Solid Waste Collection at Single Family Dwellings shall not occur on Saturdays; excepting Temporary Services and Collection occurring on Saturilays following such holidays as may be approved by the City Manager. Except as noted herein, no Solid Waste Collection shall occur on Saturdays or Sundays at Single Family Dwellings, or on Sundays at Multi-Family Dwellings or Commercial Premises, except in exceptional circumstances for which specihc approval is given by the City Manager. 8,1.5 Collection Schedule Contractor shall establish Collection routes and a Collection schedule which shall be approved by the City Manager such that Customers at all Residential and Commercial Premises within the City will have not less than one established Collection day each week. Contractor shall provide notice to each Customer of its established Collection day(s), and shall provide at least one week's notice to Customers of any change in their established Collection day(s), Notwithstanding any provision herein to the contrary, should any established Collection day fall on a legal holiday, or on any other holiday which is observed by either a landfill or other lawful disposal or cliversion site to which Solid Waste is taken for disposal or diversion, Contractor shall provide for Collection one (1) day later during the pick-up week, and the regular Collection schedule shall be resumed the following week. A pick-up week shall be defined as Monday through Saturday. Contractor may not change its established Collection schedules without obtaining the prior written consent of the City Manager. Contractor may charge Customers for cmergenoy Collection services, where the emergency Collection is not required as a result of a missed pickup as set forth in Section 8.1.9, at rates which do not exceed the maximum rates set forth on Exhibit A. 8.1.6 ComminglinqglRoutes Contractor shall not during its Collection process commingle Solid Waste Collected hereunder with Solid Waste Collected in any other City, or on behalf of any other entity operating or existing within City that is not subject to this Agreement, and is specifically prohibited from combining Collection routes related to seryices provided pursuant to this Attachment 1 21 ot 89 - l3- Agreement with Collection routes for other jurisdictions it may service. Notwithstanding the foiegoing, source separaterl Recyclable Materials Collected by Contractor may be commingled with such materials Collected in other jurisdictions provided Contractor maintains a method of allocating tonnage between jurisdictions that is satisfactory to the City Manager. 8.1.7 Replacement of Containers Contractor shall, whenever possible, place Carts in the street gutter, adjacent to the curb, upoll completing Collection. Contractor shall replace all Bins in the location upon the property of each Customer utilizing Bins designated for storage of Bins, and shall secure gates, doots, and/or enclosures when applicable. 8.1.8 Contractor's Containers (A) Contractor's Containers shall mect the minimum standards set forth on the attached Exhibit B. (B) Contractor shall provide three sizes of Carls (small, medium and large) having capacities of approximately 35 gallon, 64 gallon and 96 gallon. Notwithstanding the foregoing, the Parties recognize that different vendors provide Carts of slightly different dimensions, and hence the capacity of each of the three Cart sizes Contractor is to provide (i.e., small, medium and large) may vary slightly, but in no case by more than 10% ofthe capacities noted above. (C) Contractor shall be responsible to maintain and replace, as necessary, all of its Containers. (D) All Contractor's Containers shall be maintained by Contractor in good repair, and any question as to the meaning of this standard shall be resolved by the City Manager. (E) Contractor shall deliver Containers to each Customer at no additional charge, (F) Contractor shall ensure it maintains an accurate list that contains the total number of Carts at each service address. Contractor is endeavoring to implement a system whereby "bar codes" are affiliated with each Cart in use, and at such time as (if) such a system is implemented the bar code data for each Cart shall be included in the aforementioned list. Contractor shall keep this list up to date at all times, provide it to City upon request, and shall include a current updated list with each annual report as set forth in Section 23.3. (G) All Cats shall be maintained by Contractor in a watertight condition, as shall all Bins which are used primarily for the disposal of Solid Waste containing liquids. (H) Within twenty-four (24) hours after notification (Sundays and holidays excepted), Contractor shall repair and maintain, remove graffiti from, and replace lost, stolen or damaged Carts at no charge to Customers. However, Contractor shall be Attachment 1 22 ot 89 -14- entitled to charge Customers for the replacement of any Cart that has been damaged by a Customer's willful neglect or abuse, ordinary wear and tear excepted, with such charges being subject to the City Manager's approval and at a fee no higher than Contractor's actuãl cosi of repair and replacement. Notwithstanding the above, upon request and up to one time per calendar year, Contractor shall exchange a Customer's Cart for a new or 'olike new" Cart at no additional charge' (I) Contractor shall at Customer's request annually refurbish, replace, and steam clean as necessary all Bins and Contractor provided Rolloff Boxes at no charge to Customers; providcd, however, City may require the steam cleaning or replacement of Bins utilized at restaurants, bars and grocery stores/markets more frequently if it determi¡es such action is needed to protect public health and safety. Additional steam cleaning shall be provided to any Customers who request it at a charge not to exceed the maximum ratc set forth in Exhibit A hereto, or alternatively Contractor shall provide a replacement BirVRolloff Box to Customers at no charge. Contractor may charge Customers for damaged Bins at rates that do not exceed the maximum rate sct forth in Exhibit A. (J) All Bins and Rolloff Boxes shall be kept freshly painted in a uniform fashion and shall be identified with Contractor's name and phone number in letters not less than three inches high on its exterior so as to be visible when the Container is placed for use. (K) At a Customer's request, Contractor shall provide Bins with locking lids and locks and may charge rates to Customers fbr locking Bins which do not exceed the maximum rates set forth on Exhibit A. s.1.9 Missed Pick-ups In case of a missed pick-up called in by a Customer, Contractor shall Collect Solid Waste and Recyclable Material from such Customer no later than the next day of the pick'up wcek following the date of the call. Records of the addresses of all missed pick-ups shall be maintained by Contraotor, and shall be reported to City upon request. If Contractor demonstrates to the satisfaction of the City Manager a pattern of ongoing late "set-outs" or wrongful Customer notifications by any given Customer, missed pick-ups resulting from late set-outs by that Customer shall not be counted as missed pick-ups in evaluating Contractor's performance hereunder. The Customer service phone system required by Section I0.7.2 hereof is intended, among other things, to serve as a "hotline" for Customers to call in the event Solid Waste placed for Collection is not Collected by Contractor and to facilitate having such Solid Waste Collected as soon as reasonably possible, and in no event later than as required by the provisions hereof. 8.1.10 Record of Non-collection As more fully set forth herein, Contractor shall Collect all Solid Waste placed for Collection by Customers in Containers, excepting materials that do not meet the definition of Sotid Waste (such as hazardous materials). Whenever Contractor determines not to Collect any Solid Waste deposited for Collection, Contractor shall leave a fag aI least 2" by 6" in size, Attachment 1 23 of 89 -1 5- indicating the reason for Contractor's refusal to do so. This information may be either handwrittcn or left by means of a check system (i.e., checking off boxes on a preprinted form), The tag shall provide Contractor's business name and its local telephone number and shall be securely fastened to the Container or the article refused, Contractor shall maintain a record of all such taggings at its place of business. Such record shall contain the date of such noticeo street address, reason for non-collection, and a summary of any communications between Contractor and the Customer involved. Such notice shall be retained so that it may be inspected by representatives of City upon request. 8.2 Residential Solid Waste Handling Service 8.2.1 Single Family Dwellines - Automated Collection Contractor shall provide each Customer at a Single Family Dwelling with one Cart designated for the Collection of mixed Solid Waste (a Refuse Cart), and Customer shall be entitle<l to choose between either a 35 gallon, 64 gallon or 96 gallon Refuse Cart (subject to the provisions of Section 8.1.8(8)). Contractor shall Collect all Solid Waste placed out f'or Collection in a Ref'use Carl by each Customer at a Single Family Dwelling not less than once per week using an automated Collcction system at rates that do not exceed the maximum rates set fonh in Exhibit A. Contractor may charge Customers for additional Collection in excess of once per week at rates that do not exceed the maximum rates set forth in Exhibit A. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one or more additional Refuse Carts, and shall Collect all Solid Waste placed for Collection in such additional Refuse Carts at rates that do not exceed the maximum rates set forth in Exhibit A, Wherever feasible, Customers shall be directed by Contractor to place Carts for Collection either in the street gutter, against the curb, in front of their Premises, or adjacent to their Premises in the alley or easement in the rear of their Premises. If a Customer and Contractor cannot agree upon a Collection location, or if City determines the selected location may cause safety or other concerns, City may make the final determination of the Collection location. It is the intent of the parties that the services provided under this Agreement will result in an automated Collection system that includes source separation of Recyclable Material. Accordingly, if Solid Waste is routinely placed for Collection other than in a Reluse Cart, Contractor shall work with the Customer involved to determine if the Customer is in need of additional or larger Refuse Carts. The City Manager is authorized to require Contractor to deliver additional Refuse Carts to any such Customers or to require such other action of Contractor as is reasonably deemed necessary to ensure the Collection system, including specifrcally the recycling programs, contemplated by this Agreement are achieved. 8.2.2 Walk-Out Service Contractor shall provide eligible Customers with "walk-out service" as set forth in this Section at no additional charge. This service shall require Contractor to use its own foroes to bring a Customer's Carts from a Customer's backyard, side yard, or such other location at which the Customer's Containers are regularly stored, to Contractor's Collection Vehicle; and, after disposal of the contents thereof, returning said Containers to the location where they are regularly stored. To be eligible for this service a Customcr shall have a DMV issued disabled person placard/license plates, and provide a letter to Contractor from a physician confirming the Attachment 1 24 ol 89 -1 6- Customer is unable to move his/her Carts to the curb, and that to the best of the physician's knowledge there is no other capable persons living in the Customer's household to provide this service. Contractor may require each eligible Customer to provide a new letter from a physician on an annual basis in order to maintain eligibility for walk-out service. Any dispute regarding a Customer's eligibility for walk-out service shall be resolved by the City Manager' Contractor may provide Customers who arc not eligible for free walk-out service pursuant to the forgoing with walk-out service at a rute which shall not exceed the maximum rate set forth in Exhibit A, Contractor may require as a condition of walk-out service that a Customer sign a standardized agreement, the terms of which shall be subject to City's approval, which authorizes entry onto the Customer's property and holds Contractor harmless from liability (including specifically liability related to pets escaping) associated with Contractor providing such service. 8.2.3 Recyclinri Pl'oeram for Sinele Fzunily Dwellings tjsinËLCarts Contractor shall provide each Customer at a Single Family Dwelling with a Cart of the same size as the Customer's Refuse Cart (subject to the provisions of Section 8.1.8(B)) designaled for the Collection of Recyclables (a Recycling Cart). Upon request by a Customer using a 35 or 64 gallon Refuse Carl, Contractor shall provide a Recycling Cart that is larger than the Customer's Refuse Cart (i.e., either a 64 or 96 gallon Recycling Cart, as applicable). Contractor shall Collect all Recyclable Material placed out for Collection in a Recycling Cart by each Customer at a Single Family Dwelling not less than once per week using an automated Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one additional Recycling Cart at no additional charge; and, further shall provide such Customers, upon request, with additional Recycling Carts at rates that do not exceed the maximum rates set forth in Exhibit A corresponding to the size of Recycling Carts provided. The maximum rate set forth on Exhibit A applicable to Customers whosc Recycling Carts are larger than their Refuse Cart shall be based on the maximum rate applicable to the size of Refuse Cart provided; however, as noted above, the maximum rate set forth on Exhibit A applicable to additional Recycling Carts shall be that set forth on Exhibit A corresponding to the size of the Recycling Cart provided. Contractor shall Collect Recyclable Material placed in Recycling Carts for Collection from each Customer at a Singlc Family Dwelling on the same day as such Customcr's Refuse Cart is Collected, utilizing an automated Collection process. Customers shall be directed to place Recycling Carts in the same location for Collection as Refuse Carts. At a minimum the following materials shall be allowed to be deposited by Customers for Collection in Recycling Carts aluminum cans; glass jars and bottles; bi-metal, and tin cans; empty aerosol containers; polyethylene terephthalate plastic ("PET"); high density polyethylene plastic ("HDPE"); plastios types 3 - 7; plastic bags, shrink wrap, plastic toys and tools, and other plastic materials (if readily identifiable as being recyclable); coat hangers and metal foil; newspaper; mixed paper (e.g., ledger, computer, junk mail, magazines, paperback books cereal boxes, envelopes, paper shopping bags and non-metallic wrapping paper); corrugated cardboard; and telephone books. 8.2.4 Green T/aste-Collecti*on for Single Family Dwellings Contractor shall provide Customers at Single Family Dwellings with a Cart of the same size as the Customer's Refuse Cart (subjcct to the provisions of Section 8.1.8(B)), designated for Attachment 1 25 of 89 -t7 - Collection of commingled Green Waste (a "Green Waste Cart"). Upon request by a Customer using a 35 or 64 gallon Refuse Cart, Contractor shall provide a Green Waste Cart that is larger than the Custorner's Refuse Cart (i.e., either a 64 or 96 gallon Green Waste Cart, as applicable). Contractor shall Collect all Grecn Waste placed out for Collection in a Green Waste Cart by each Customer at a Single Family Dwelling not less than once per week using an automated Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with additional Green Waste Carts at rates that do not exceed the maximum rates set forth in Exhibit A corresponding to the size of Green Waste Carts provided. The maximum rate set forth on Exhibit A applicable to Customers whose Green Waste Cafts are larger than their Refuse Cart shall be based on the maximum rate applicable to the size of Refuse Cart provided; however, as noted above, the maximum rate set forth on Exhibit A applicable to additional Green Waste Carts shall be that set forth on Exhibit A corresponding to the size of the Green Waste Cart provided, Contractor shall Collect Green Waste placed in Green Waste Carts for Collection from each Customer on the same day as such Customer's Refuse Cart is Collected, using an automated Collection process. Customers shall be directed to place Green Waste Carts in the same location for Collection as Refuse Carts. Notwithstanding the foregoing, Customers whose Premises do not generate Green Waste materials need not be provided with a Green Waste Cart. Any ambiguity or dispute as to whether the foregoing provision applies shall be resolved by the City Manager whose decision shall be final. 8.2.5 City Mana&er A$thority.to Oversee Encgpragement otB.ecy-cling The flexibility provided to Customers pursuant to Sections 8.2.3 and 8.2.4, enabling them to request Recycling and Green Waste Carts which vary in size from their Refuse Cart size, is intendcd to benefit Customers and cncouragc them to participate as fully as possible in available recycling programs, However, if Solid Waste is routinely placed by Customers in Recycling Carts or Green Waste Carts such so as to undermine the intent of allowing varying Cart sizes, the City Manager may require Contractor to deliver additional or different size Refuse Carts to any such Customcrs, to require Contractor to only provide such Customers with uniform Cart sizes, or to require such other action of Contractor as is reasonably deemed necessary to ensure the Collection system, including specifically the recycling programs, contemplated by this Agreement are achieved. 8.2.6 Multi-Family DwellingCustomers Contractor shall comply with all requirements applicable to Commercial Customers, set forth below, in connection with Multi-Family Dwellings, and further shall comply with the specific provisions contained herein related to such Dwellings. Customers at Multi-Family Dwellings shall be provided sufficient services by Contractor to enable them to comply with AB 341. Towards this end, all such Customers shall be provided with Mixed Waste Bins, which shall be processed as described below. Notwithstanding the forgoing, as an alternative, such Customers may participate in the Source Separated Collection Program described below, if they participate in such program in a manner by which a 50%o diversion rate is achieved in connection with the Solid Waste they generate, Attachment 1 26 of 89 -1 8- 8.2.6.1 Mixed'WasteBinq Except as otherwise set forth herein, Contractor shall provide all Customers at Multi- Family Dwellings with Bins meeting the minimum standards set forth in Exhibit B for the Colleðtion of mixed Solid Waste ("Mixed Waste Bins"), and shall Collect all Solid Waste placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor shall deliver all Solid Waste Collected in Mixed Waste Bins to an appropriately permitted processing facility where such Solid Waste is to be processed with the gouf ıf áchieving a diversion rate from such processing of not less than 50%. Contractor shall provide CustomJrs requesting Mixed Waste Bin service a number of Bins reasonably needed for bolid Waste Collection at each Premises at which Multi-Family Dwellings exist bearing in mind both the number of Dwellings and space limitations. Mixed Waste Processing Bins are intended to allow Multi-Family Dwellings the availability of a method by which Customers at such Dwellings can attain the 50% diversion goal of AB 939. The size of Mixed Waste Bins utilized, and the frequency of their Collection, shall be mutually agreed upon by Contractor and its Customers, except that Collection shall occur not less than one time per week and City shall have the right to impose minimum requirements for Bin sizes and more frequent Collection should it determine such action is needed to protect public health, safety and welfare. In the event of any dispute as to the adequacy of the number of Bins at any given Multi-Family Dwelling, the City Manager shall have the ability to approve the number of Mixed Waste Bins used at such location. In the event extra pickups are required at a Multi-Family Dwelling in any given month, Contractor may charge the Person who manages or owns the Multi-Family Dwelling for such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forlh in the attached Exhibit A. 8.2.6.2 Spurce Separated Collection Program As an alternative to providing Mixed Waste Bins as set forth above, Contractor may provide all Customers at Multi-Family Dwellings the option of participating in a Source Separated Collection Program meeting the requirements set fonh below through a combination of Bins, meeting the minimum standards set forth in Exhibit B, somc of which are designated for the Collection of Solid Waste ("Refuse Bins"), and others designated for the Collection of Reoyclable Material ("Recycle Bins"). Customers at Multi-Family Dwellings may only participate in the Source Separated Collection Program if they participate in the program in a manner by which a 50o/o diversion rate is achieved for the Solid 'Waste they gcnerate. (A) Refuse Bins and Carts: Contactor shall provide all Customers participating in the Source Separated Collection Program with the number of Refuse Bins reasonably needed for Solid Waste Collection at each Premises at which Multi-Family Dwellings exist, bearing in mind both the number of Dwellings and space limitations, and shall Collect all Solid'Waste placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. If warranted by specific circumstances, and upon written approval of the City Manager, at any given Multi-Family Dwelling Refuse Carts may be utilized instead of Refuse Bins. The size of Refuse Bins utilized, and the frequency of their Collection, shall be mutually agreed upon by Attachment 1 27 of89 -r9- Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Refuse Bins, Refuse Bin sizes and more frequent Collection should it determine such action is needed to protect the public health, safety and welfare. In the event of any dispute as to the adequacy of the numberif R"fur. Bins at any given Multi-Family Dwelling, the City Manager shall have the ability to approve the number of Refuse Bins used at such location. In the event extra pickups are required at a Multi-Family Dwelling in any given month, Contractor may charge the Person who manages or owns the Multi-Family Dwelling for such pickups an amount that does not exoeed the maximum rate for "extra dumps" as set forlh in the attached Exhibit A. (B) Recycle Bins and Carts: Contactor shall provide all Customers participating in the Source Separated Collection Program with the number of Recycle Bins reasonably needed for Recyclable Material Collection at eãch Premises at which Multi-Family Dwellings exist, bearing in mind both the number of Dwellings and space limitations, and shall Collect all Recyclable Material placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. If warranted by specific circumstances, and upon written approval of the City Manager, at any given Multi-Family Dwelling, Recycling Carts may be utilized instead of Recycle Bins. The size of Recycle Bins utilized, and the frequency of their Collection, shall be mutually agreed upon by Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Recycle Bins, Recycle Bin sizes and more frequent Collection should it determine such action is needed to protect the public health, safety and wslfare, In the event of any dispute as to the adequacy of the number of Recycle Bins at any given Multi-Family Dwelling, the City Manager shall have the ability to approve the number of Recycle Bins used at such location. In the event extra pickups are required at a Multi-Family Dwelling in any given month, Contractor may charge the Person who manages or owns the Multi-Family Dwelling for such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forth in the attached Exhibit A. At a minimum, Contractor shall allow the materials identified in Section 8.2.3 above to be placed for Collection in Recycle Bins or Recycling Carts utilized in connection with the Source Separated Collection Program. Should such Recycle Bins andlor Recycling Carts be contaminated with materials not permittcd to be placed therein for Collection, Contractor may charge the responsible Customer a rate that does not exceed the maximum rate set forth in Exhibit A for contaminated loads. 8.2.7 Bulky Item Service for Sinelc Family Dwellines Contractor shall provide Bulky Item Collection services to residents living at all Single Family Dwellings in City at no charge on an on-call basis. The no-charge Bulky Item Collection service set forth in this Section shall only apply with respect to Bulky Items generated at the Dwelling Unit at which the Customer calling for service resides and is limited to up to four (4) items or up to 20 bags of Green Waste per scheduled pick up and four (4) pickups per calendar year, Bulky Items Collected pursuant to this Section shall occur on the same day as the Customer's regularly scheduled Collection day. In order to receive such service, residents shall provide Contractor with at least forty-eight (aS) hours notice by phone of the number and type of Bulky ltems to be Collected. Contractor shall produce, keep current, and provide public Attachment 1 28 of 89 20- information specifically outlining its Bulky Iterh Collection service, which shall specifically include the annual publication and distribution of a brochure describing this service to residents of all Single Family Dwellings in City. Contractor may charge rates for the Collection of each Bulky ltem in excess of the above limits that do not exceed those set forth on Exhibit A, 8.2.8 Bulky Item $ervice for Multi-Familv Dwellings Residents at Multi-Family Dwellings shall receive the same Bulky ltem Collection services as Commercial Premises as set forlh in Section 8.3.4. 8.2.9 Targeted Neighborhood Abandoned ltems Sweep Contractor shall provide an abandoned items sweep program for targeted neighborhoods (the "Abandoned Items Sweep") as may be identified by the City Manager, with the intent that this provision will apply to neighborhoods that might otherwise have a disproportionate concentration of abandoned Bulky Items as compared to the rest of the City. The Abandoned Items Sweep shall occur on the same day that refuse Collection occurs for the targeted neighborhood. Contractor shall Collect all Bulky Items and other items abandoned in said targeted neighborhoods during the Abandoned Items Sweep. If over l0% of the Customer accounts in a targeted neighborhood are delinquent, Contractor may suspend the Abandoned Items Sweep for that area. Contractor shall produce, keep current, and provide public information specifically outlining its Abandoned Items Sweep, which shall specifrcally include the annual publication and distribution of a brochure describing this service to Customers in the City targeted nei ghborhoods, 8.2.10 Bulky Ilem Diversion Bulky Items Collected pursuant to this Agreement may not be landfilled until the following hierarchy of diversion efforts has been followed by Contractor: a. Reuse as is (if energy efficient); b. Disassemble for reuse or Recycling; c. Recycle, Transformation, or other means of diversion; and d. Disposal. This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky ltems. The disposition of Bulky Items shall be tracked by Contractor and this information shall be included in Contractor's quarterly reports to City. 8,2.11 Proper Handlirrg of Bulky ltems Contractor shall properly handle all materials required to be Collected as Bulky ltems, including specifically items that require special handling pursuant to the Environmental Laws, such as materials that constitute "Universal Waste" and/or "e-waste." Attachment 1 29 of 89 -2r- 5.2.12 Residential Drop Off of Household Sharps Waste Contractor shall endeavor to establish a location(s) in or near City at a pharmaceutical establishment or other facility approved by City, where any resident of the City may drop off Household Sharps Waste. City facilities shall not be used as a drop off location. 8.2.13 Residential Drop-Off of Universal TVaste Contractor shall develop and implernent a Universal Waste drop-off program where, at City's request, Contractor shall provide up to six (6) public or private locations (including City Hall), subject to City approval, for residents of the City to drop-off Universal Waste. Contractor shall properly handle and dispose of, or provide a third party approved by the City Manager to handle and dispose of, all Universal Waste in accordance with all Applicable Law and, to the extent legally possible, follow the hierarchy of diversion efforts set forth in Section 8.2.10, 8.2.14 Curbside Household Hazardous Waste Collection If requested to do so by City, Contractor will implement a program, which shall meet the reasonable satisfaction of the City Manager, to Collect Household Hazardous Waste from Residential Premises on an on call basis at rates that do not exceed the maximum rates set forth in Exhibit A, 8,3 Commerciai Solid'Waste Handline Services 8.3.1 Commercial Bins and Rolloff Boxes Contractor shall provide all Customers at Commercial Premises ("Commercial Customers") with at least one Bin and/or Rolloff Box for Collection of mixed Solid Waste, and shall Collect all Solid Waste placed therein f'or Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor shall provide additional Containers to Customers and shall provide additional Collections upon request, or as may be required by City's Municipal Code, health and safety requirements, or by the City Manager, and may charge rates for such services which do not exceed the maximum rates set forth in Exhibit A. Bins and Rolloff Boxes shall be Collected by Contractor from the location upon each Customer's property designated for their storage, and replaced to that location with gates and/or doors secured, as applicable, after Collection is completed, unless different arrangements are agreed upon by the Customer and Contractor. Notwithstanding anything set forth herein to the Contrary, Contractor need not provide Containers to Customers who chose to utilize their own Rolloff Box compactors; and further, Contractor may lease Rolloff Box compactors to Customers at rates that it sets, which rates shall not be regulated by this Agreement, Contractor shall provide Solid Waste Handling Services in connection with Rolloff Box compactors at rates that do not exceed the maximum rates set forth in Exhibit A, 8.3.2 Commercial Carts As an alternative to the requirements of Section 8,3.1, Contractor shall offer Collection in sixty-four (64) or ninety-six (96) gallon Refuse Carts (subject to the provisions of Section S.1 .8(B)) to Commercial Premises where the Customers do not have space for, or do not generate Attachment 1 30 of 89 -22- enough waste to require the use of Bins for Collection. Rates for Customers at Commercial Premises (excepting Multi-Family Dwellings) receiving such service shall not exceed the maximum rates iet forth on Exhibit A for Commercial Refuse Carts; provided, however, rates for Customers at Multi-Family Dwellings receiving such service shall not exceed the maximum rates set forth on Exhibit A for Residential Cart Service, If Contractor and Customer have a disagreement as to whether a Refuse Cart is appropriate, or if City determines the Collection in a Refuse Cart causes health and safety or other concerns, City shall make the final determination as to whether Collection in a Refuse Cart may occur. 8.3.3 Commercial Recvclinq, Services Commercial Customers shall be provided services by Contractor sufftcient to enable them to comply with AB 341. Towards this end, the Solid Waste Collected in all Containers provided to such Customers shall be processed in the manner set forth Section 8.2.6.1related to Mixcd Waste Bins, and all other provisions set forth above related to Customers at Multi-Family Dwellings participating in the Mixed Waste Bin service shall apply, including that Contractor may charge Customers rates for Collection of Solid Waste from Mixed Waste Bins that do not exceed the maximum rates set forth in Exhibit A. As an altemative, Commercial Customers may be permitted to participate in the Source Separated Collection Program described in Section 8.2.6.2 above if they participate in the program in a manner by which a 50% diversion rate is achieved for the Solid Waste they generate. Contractor shall provide Commercial Customers participating in the Source Separation Collection Program with Recycle Bins or Recyoling Carts, in addition to Refuse Bins or Carts, pursuant to the provision of Section 8.2.6.2, and all provisions of Section 8.2.6.2 shall apply including that Contractor may charge Commercial Customers rates that do not exceed the maximum rates set forth in Exhibit A for such services. 8.3,4 Commercial BulkJ Item Service Contractor shall provide unlimited Bulky Item Collection services to Commercial Premises (excepting Multi-Family Dwellings) on an on-call basis. Contractor may charge rates for such services which shall not exceed the maximum rates set forth in the attached Exhibit A. Bulky ltem Collection service calls shall be responded to within a reasonable time but not longer than seven (7) days from the date of the Customer's call for service. Contractor shall produce, keep cunent, and provide public information specifically outlining the Bulky Item pick-up service. Bulky Items Collected pursuant to this Section are subject to the diversion and handling requirements set forth in Sections 8.2.9 and 8.2.10. 8.3,5 Ego*d Waste Collection Services Contractor shall provide Customers at Commercial Premises (excepting Multi-Family Dwellings) the option to have a separate 64 gallon Cart (subject to the provisions of Section S,1.S(B)) for the Collection of Food Waste ("Food Vy'aste Cart"). Contractor may charge rates for thc Collection of Food Waste Carts which shall not exceed the maximum rates set forth in the attached Exhibit A. The frequency of Collection of Food 'Waste Cafis shall be mutually agreed upon by Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for more frequent Attachment 1 31 of 89 -23- Collection shoutd it determine such action is needed to protect the public health, safety and welfare, 8.3,6 Monitoririg and Cleani¡ig of Bin Ênclosures Contractor shali work with the City Manager in identifying and resolving continual problems with overflowing Bins or Bin enclosures, and/or other unsanitary conditions caused by Customers. Contractor shall clean out any overflowing Bins or Bin enclosures within City within twenty-four (24) hours of notification by City (Sundays and holidays excepted). Contractor shall create a specific work order in response to each call received from City and shall provide City with an annual "summary of Clean Out Item Work Orders Completed." Such summary shall include, but not be limited to, the date, time, hours spent, and types of items Collected. 8.4 Other Collectio¡r Proqrarns As Mav Be Required by Laq In the event CalRecycle, or any federal, state, or local law or regulation, imposes upon City or Contractor a requirement for the implementation of any program for the Collection of any waste material (whether or not meeting the definition of Solid Waste hereunder) not already covered by this Agreement, whether Commercial or Residential in nature, Contractor shall design and present a program to City to comply with such requirement, which program shall meet the City Manager's reasonable approval, Except with respect to programs which are required due to Contractor's failure to achieve the diversion requirements set forth herein (which programs are subject to Section 8.8.5), at such time as (if) any such program is implemented, Contractor and City shall meet and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A in order to compensate Contractor for implemcnting such a program. 8.5 Roll Out Service Certain Premises within the City Limits require Contractor to move a Bin in order to service the Bin ("Roll Out Service"). Contractor may charge said Premises for the Roll Out Service where Contractor is recluired to move a Bin more than twenty-five (25) feet. Contractor may charge rates for such Roll Out Service which shall not exceed the maximum rates set forth in the attached Exhibit A. 8.6 Manure Collection Contractor shall provide any Customer, who so requests, with Rolloff Boxes, Bins or Carts, as appropriate, for the Collection of horse manure and bedding at rates that do not exceed the maximum rates set forth on Exhibit A, and shall Collect all such materials placed therein for Collection not less than once per week. The size of Containers utilized, and the frequency of their Collection, shall bc mutually agreed upon by Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Rolloff Boxes, Bins, or Carts, as well as their sizes, and more frequent Collection should it determine such action is needed to protect the public health, safety and welfare. Attachment 1 32 of 89 -24- 8.7 Tçmporary Services Contractor shall provide Temporary Services on an on call basis to any Customer requesting such service pursuant to the following conditions: (A) Bins and Rolloff Boxes utilized in connection with Temporary Services shall rneet the minimum standards set forth herein and Containers shall be delivered within twenty-four (24) hours of a call for such service, excepting Sundays and holidays. (B) No charges excepting rates not exceeding the maximum rates set forth in the attached Exhibit A related to Bins or Rolloff Boxes utilized in connection with Temporary Services shall be imposed by Contractor, unless approved in accordance with Section 8.10 (Special Services), (C) Bins used for Temporary Service shall not be placed in any public rights- of-way unless an encroachment permit is first obtained from City pursuant to Section 4- 6.1003 of the Municipal Code (as it may be amended from time to time), and in no case may they be placed in any public rights-of-way so as to create a safety hazard or so as to block any right-of-way to a degree that it is not reasonably usable. Bins placed in City's rights-of-way shall be subject to such requirements as may be imposed by City, and at a minimum shall be equipped with reflectors, reflective tape, reflective paint, or other reflective devices which, to the satisfaction of the City Manager, make such Bins reasonably visible to vehicle traffic at night. (D) City has in place an ordinance regulating the recycling and disposal of construction and demolition waste, and Contractor agrees to comply with all applicable provisions thereof. (E) In addition to complying with any other requirements of the City's ordinance regulating construction and demolition waste, Contractor shall make all reasonable efforts to recycle all constructìon and demolition waste it Collects, especially to the degree such loads contain clean inert materials. Towards this end, Contractor shall make available to Customers involved in construction separate Containers within which to Collect different types of marketable materials, such as dirt, steel, concrete and wood, 8.8 Recycline Oblieations and Public Education Prograrn 8,8.1 Minimum Requirernents-fp-r Collection of Recyclable Material-Creen Wasts and Rolloff Boxes Contractor shall utilize a truck dedicated for the purpose of Collecting Green Waste from Customers, such that Green Waste which has been separated prior to Collection, once Collected, is not commingled with other Solid Waste (including Recyclable Material). Similarly, Contractor shall utilize a truck dedicated for the purpose of Collecting Recyclable Material, such that Recyclable Material Collected in Recycling Carts or Recycling Bins, once Colleoted, is not commingled with other Solid Waste (including Green Waste). All material Collected by Contractor in Recycling Carts or Bins pursuant to this Agreement shall be delivered to a properly permitted facility for recycling and reuse purposes. All Green Waste separated prior to Attachment 1 33 of 89 -25- Collection and thereafter Collected by Contractor pursuant to this Agreement (including specifically materials Collected in Green Waste Carts and Holiday Trees) shall be delivered to a pìoperly permitted facility for recycling, mulching, composting, or alternative uses for which ãiversion credit is provided as may be approved by CalRecycle. Contractor shall be responsible for implementing programs which will divert Recyclable Material and Green Wastc from disposal in order to meet the diversion requirements of this Agrecment, All Rolloff Boxes, whether for Commercial Premises or Temporary Service shall be delivered to a properly permitted facility for recycling and reuse purposes. 8.8.2 Extent of Anplicable Franchise Righfs Nothing in this Agreement shall be construed as giving Contractor the right to Collect Recyclable Material which has not been discarded and placed for Collection by Contractor in the location designated for that pu{pose. 8.8.3 AB 939 and AB 341 Obligations. Guarantee.-ancl lndemnifÏcation 8.8.3.I WarantiesandBepresentqtions Contractor warrants and represents that it is aware of and familiar with City's Source Reduction and Recycling Element (the "SRRE"), that it is familiar with City's waste stream, and that it has the ability to and will provide sufficicnt programs and services to ensure City will meet or exceed the diversion goals (including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set forth in AB 939 and AB 341, and all amendments thereto, and that it shall do so without imposing any costs or fees other than those set forth on the attached Exhibit A (including if it implemcnts new programs to achieve such goals which are not called out herein). Stated otherwise, Contractor acknowledges that it is responsible for ensuring that its various programs achieve the diversion requirements hereunder, and that it may be required to modify its programs from time to time, at no additional cost to the City or Customers, to meet such diversion requirements. 8.8.3.2 MutualCoqperation City and Contractor shall reasonably cooperate in good faith with all efforts by each other to meet City's diversion and other compliance requirements imposed by AB 939, AB 347 and other Applicable Law. ln this regard, City's obligations shall include, without limitation, making such petitions and applications as may be reasonably requested by Contractor for time extensions in meeting diversion goals, or other exceptions from the terms of AB 939, AB 341 and other Applicable Law. 8.8.3.3 Waste Reduction 4lld Prog{am Implementation Contractor shall implement the programs identified in the SRRE and Household Hazardous Wastes Element ("HHWE") immediately upon the Effective l)ate hereof, and will implement any programs required by any amendments or modifications thereto. Contractor shall employ a Person as a recycling coordinator whose responsibilities will be to implement the programs identified in the SRRE and HHWE. Contractor shall provide City with monthly, quarterly and annual written reports in a form adequate to meet City's AB 939 and AB 341 Attachment 1 34 of 89 -26- related filing and reporting requirements to CalRecycle and to the County of Orange throughout the Term of this Agreement wherein City's perforrnance under the above programs shall be set forth in detail. Contractor shall be responsible to prepare, or assist City with the preparation of, all reports and other information as may bc required by any agency, including specifically, the State of California, in order to comply with AB 939 and/or AB 341, 8.8.3.4 Guaranteeandindemnification Contractor warrants and guaranties that it will carry out its obligations under this Agreement such that: (i) both it and City will at all times be in compliance with the requirements of all Applicable Law including specifically AB 939 and AB 341, and (ii) City will meet or exceed the diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set forth in AB 939, AB 341 and all amendments thereto. In this regard, Contractor agrees that it will, in addition to any other requirement contained herein, at its sole cost and expense: (A) to the extent legally permitted, defend, with counsel approved by City, indemnify, and hold harmless City and City's officials, employees, and agents fiom and against all fines and/or penalties and other liabilities which may be imposed by CalRecycle or any other regulatory agency if: (1) Contractor fails or refuses to timely provide information relating to its operations which is required pursuant to this Agreement or any Applicable Law and such failure or refì¡sal prevents or delays City from submitting reports required by Applicable Law in a timely manner; or (2) the source reduction and recycling goals, diversion goals, program implementation requirements, or any other requirements of Applicable Law are not met with respect to the waste stream Collected under this Agreement; (B) assist City in responding to inquiries from CalRecycle; (C) assist City in preparing for, and participating in, any review of City's SRRE pursuant to Applicable Law; (D) assist City in applying for any extension, including under Public Resources Code Section 41820, if so directed by City; (E) assist City in any hearing conducted by CalRecycle relating to City's compliance with Applicablc Law; (F) assist City with the development of and implement a public awareness and education program that is consistent with the City's SRRE and HHWE, as well as any related requirements of Applicable Law; (G) provide City with recycling, source reduction, and other technical assistance related to compliance with the Applicable Law; (H) defend, with counsel acceptable to City, City and City's officials, employees, and agents against the imposition of fines and/or penalties, or any other liabilities, issued by CalRecycle pursuant to AB 939 and AB 341; Attachment 1 35 of 89 -27- (D be responsible for and pay any fees, penalties or other costs imposed against the City by CalRecycle, and to extent legally permitted indemnify and hold hármless City from and against any frnes, penalties, or other liabilities, levied against it for violation of AB 939's or AB 341's diversion requirements, or violation of any other provision of the Applicable Law, arising from or in any way related to Contractor's performance of its obligations under this Agreement. 8,8.4 $y'aste Generation/Characterization Studies Contractor acknowledges that City may be required to perform Solid Waste generation and disposal characterization studies periodically to comply with the requirements of AB 939. Contractor agrees to perform such studies if required by City and further to particìpate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/processed to satisfy the requirements of AB 939. 8.8.5 Implementafion of Additional Diversion Services ln the event City does not meet the current diversion goal o150% imposed by AB 939 with respect to all waste generated in City, City may direct Contractor to perform additional services (including the implementation of new diversion programs) or modify the manner in which it performs existing services, and Contractor agrees to do so at no additional charge. Pilot programs and innovative services which may entail new Collection methods and the use of new or alternative waste processing and disposal technologies are included among the kinds of changes which City may direct. 8.9 Additional Services As part of the oonsideration for entering this Agreement, Contractor shall provide the following additional services at no charge, and shall not adjust its rates to Customers to offset costs incurred in providing any of the following services: 8.9.1 Public Service Cal.ls From City Departmentq Contractor shall, free of charge, respond to calls from City's Maintenance and Code Enforcement Divisions and from its Police Department, to provide Containers and dispose of Bulky ltems and other Solid Waste as a result of illegal or unauthorized dumping, or other Code enforcement matters, occurring within City. Contractor agrees that if requested to provide such services in connection with abatement activities for which reimbursement is sought from the property owner by City through abatement liens or otherwise, Contractor will provide billing information sufficient for City to include it in its liens, and Contractor will be paid at such time as the abatement lien is paid, or reimbursement is otherwise obtained by City from the property owner. Upon receipt of a call for service from City made pursuant to this Section, Contractor shall advise City within four (4) hours as to when service will be provided, and unless otherwise agreed by City service shall be provided within twenty-four (24) hours. Attachment 1 36 of 89 -28- 8.9.2 Collection at City Sponsorcd Evsnts Contractor shall provide Solid Waste and Recyclable Material Collection at all City- sponsored or supported non-profit events. The number, type and service requirements for these events may vary from year to year. This service shall include providing, servicing and storing Containers (cardboard boxes, Carts, Bins and/or Rolloff Boxes), and Collecting, processing and Disposing of all Solid Waste Collected in a manner that complies with all other provisions of this Agreement, and the Applicable Law, including those related to diversion. Contractor shall provide these services for up to twenty (20) 36 cubic yard roll-offs per calendar year at no cost to City or the event sponsors; provided, however, Contractor shall not be responsible for paying landfill tipping or material recovery facilities handling fees associated with such services. Billing for said fees shall be agreed upon prior to any event. 8.9.3 ßecycling Assistance for Spegial Evenls- Contractor shall assist Persons designated by City (whether City employees or private individuals) who are responsible for coordinating special evenls or events in large venues (such as concerts or sporting events) in the implementation of recycling programs. Customer or event planner, or upon request from either of them, Contractor, shall be responsible for preparing and submitting to City a "waste reduction and recycling plan" prior to such events. Contractor shall submit to Customer detailed reports within 30 days of the event outlining the Solid Waste Collected, and diverted, and Contractor shall include this data in its Annual Reports to City. Notwithstanding the foregoing, Contractor may charge for refuse boxes, recycle boxes, and box liners Contractor provides for said special events at rates that do not exceed the maximum rates set forth on Exhibit A. 8.9.4 lloliday Trees For the first two regularly scheduled pickup days after New Year's Day, Contractor shall, free of charge, pick up all Holiday Trees placed out for Collection by Customers. Such trees shall not be comingled with other Solid Waste and shall be delivered to a proper faoility for processing, rather than disposal, as required by the provisions hereof. 8.9.5 Services for Public Trash Cans Along Streets and at Bus Stops Contractor shall provide Solid Waste Handling Services to Containers for the Collection of Solid Waste at City bus stops, and public right-of-ways throughout City ("Public Trash Cans"). Contractor shall, free of charge, provide Collection services for said Public Trash Cans on a schedule to be submitted to the City Manager for approval. City may change the schedule for the forgoing services to be provided at Public Trash Cans from time to time and may change, increase or decrease the locations for Public Trash Cans, 8.9.6 Dirt Disposal Contractor shall allow City to deliver clean (non-contaminated) dirt from City streets and utility repair operations to Contractor's Material Recovery Facility. City shall be charged the current processing rate for the facility for any load that has contaminated Solid Waste, concrete, asphalt, wood or other materials other than clean dirt. Attachment 1 37 of 89 -29- 8.9.7 Free Disposaland Processinq of City Delivered lWaste Contractor shall provide City with free disposal and processing, at Contractor's south Orange County Materials Recovery Facility, of waste generated within City Limits and delivered from City owned and operated vehicles, or authorized contracted vehicles. This waste may include Green Waste from City authorized Public Works operations, as well as street sweeping debris from City's contracted services. Such waste shall be limited to 973 tons per year, plus an additional 5olo increase per year, at no charge to City. Contractor may reject loads or charge for processing in the event current local, state, or federal regulations result in an increase in fees, rates, or eventual uses of the delivered waste. Should such waste be prohibited from use as alternative daily cover at local landfills at the current no charge rate, Contractor and City agree to negotiate in good faith to determine an alternative use and corresponding cost of diversion or reimbursement to Contractor for the end costs of the delivered waste. 8.10 Special Servic:gs Contractor may provide special pickup procedures or services in addition to the services <lescribed herein for Customers who request or require such services at reasonable rates established by Contractor, which rates are subject to approval by the City Manager. Contractor shall notify the City Manager of any such services prior to such time as they are provided in order to allow the City an opportunity to conduct necessary inspections, review the proposed rate, ancl impose appropriate regulations. 8.1 1 Non-Profit Assistance Contractor shall provide Rolloffs or Bins to any qualified or certified non-profit group, (e.g., Boy Scouts, Girl Scouts, Boys' and Girls' Clubs, churches, Earth Clubs, etc,). Contractor shall not charge such groups rates in excess of Contractor's actual transportation costs incurred in dropping off and picking up the Containers; provided, however, Contractor shall impose no charge for this service unless the non-profit group receives a monetary payment from recycling the materials Collected in the Containers and such proceeds exceed Contractor's actual transportation costs, Contractor shall appropriately dispose of or divert any Solid Waste or Recyclable Material Collected pursuant to this Section and shall pay non-profit organizations the prevailing market rate for any Recyclable Material Collected from the provided Containers. SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE HANDLING SERVICE COLLECTION VEHICLES 9.1 General Contractor shall provide vehicles for the Collection of Solid Waste ("Collection Vehicles") that are sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Contractor shall have available on Collection days sufhcient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. Upon or prior to the Effective Date of this Agreement and prior to the start of any extension period of this Agreement Attachment 1 38 of 89 -30- pursuant to Section 6, Contractor shall provide City with a report containing the information iequired under South Coast Air Quality Management District's Rule I193(dX7). 9.2 Air Oualitv/Fuel Requirements Contractor's Collection Vehicles shall comply with all rules and regulations of the South Coast Air Quality Management District, the Air Resource Board, and any other regulatory body that may be in effect during the Term of this Agreement, as well as other federal, state and local laws and regulations that may be enacted during the Term of this Agreement. Contractor's Collection Vehicles shall meet or exceed such air quality standards as may be adopted by the forgoing regulatory bodies during the Term, Contractor's Collection Vehicles shall comply with the requirements in the South Coast Air Quality Management District's Rule 1193. 9.3 SpecifìcRequirements Each Collection Vehicle utilized by Contraotor in the performance of this Agreement shall meet the following minimum standards: (A) Each Collection Vehicle shall be registered with the California Departrnent of Motor Vehicles. (B) Each Collection Vehicle shall be inspected regularly by Contractor, and not less than once every other year, to ensure it meets the requirements of the California Vehicle Code and the California Highway Patrol. Contractor shall provide copies of its Biannual Inspection of Terminal ("BIT") inspection reports to City within 30 days of its receipt of such reports and shall make all records related to its Collection Vehicles, including Contractor's maintenance records, available to City upon request by the City Manager. It is the intention of this provision that all Collection Vehicles be inspected at least once per year -- every other year through a BI'I inspection, and in alternative years at least once (if not more often) by Contractor. (C) Each Collection Vehicle shall be equipped with devices capable of covering every open section of the Collection Vehicle in which Solid Waste may be placed and, while operating upon the public rights-of-way, shall be covered so as to prevent any Solid Waste from falling or being blown or otherwise dislodged from the Collection Vehicle. (D) Each Collection Vehicle shall be continuously maintained so as to both: (1) meet the highest industry standards with regards to efforts to prevent liquid from leaking and to the degree possible ensure each Collection Vehicle is "watertight" and "leak-proof' and, (2) at all times comply with the provisions of all laws and regulations including the Vehicle Code and any applicable NPDES permit, with regard to materials leaking from Collection Vehicles. Contractor shall be responsible to promptly clean any spillage or Solid Waste that leaks or otherwise escapes the Collection Vehicle. (E) Each Collection Vehicle shall be painted periodically, which shall include all necessary body work, and shall be regularly cleaned, so that such Collection Vehicles Attachment 1 39 of 89 -31- do not become unsightly, as determirred by the City Manager. Each Collection Vehicle shall be painted with Contractor's colors and identifying information as required herein. (F) Contractor's name, local or toll free telephone number, and a Collection Vehicle number shall be visibly printed or painted in letters not less than three inohes in height on both sides of each Collection Vehicle. Any other information or signage printed, painted, or displayed on Contractor's Collection Vehicles, when such Collection Vehicles are providing Collection services within City Limits, shall be subject to approval by City. (G) Each Collection Vehicle shall be maintained in a clean and sanitary condition, both inside and out and shall be washed at least once every seven (7) calendar days. (H) Each Collection Vehicle shall carry a btoom, shovel, and operable fire extinguisher, and shall be equipped with a communication device sufficient to allow the driver to communicate directly with Contractor's dispatcher andlor main office. (I) Each Collection Vehicle shall be kept in good repair and working order, and shall be equipped with appropriate safety equipment, inclucling any new safety related technologies that become standard in the waste industry, and at a minimum shall have a video monitor based back-up system, or its equivalent. Contractor shall keep a sufficient supply of replacement parts and equipment on hand to ensure adequate vehicle maintenance and timely and continuous performance of the services contemplated by this Agreement. (J) Each Collection Vehicle shall be equipped with the so called "Smart System Technology" whereby Contractor can track the location of and serviccs provided by each Collection Vehicle with a computer based monitoring system, Upon request from City, Contractor shall provide any available data from this system, such as route tracking information and similar data that may be useful in investigating Customer complaints. (K) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. Contractor shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufacturer's specifications and schedule, Contractor shall repair, or arrange ior the repair of, all of its Collection Vehicles and equipment for *hi"h repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. Contractor shall keep accurate records of all Collection Vehicle maintenance and repair, recorded according to date and mileage, including signed verifìcations that repairs and maintenance has been properly performed, and shall make such records available to City upon request. (L) No Collection Vehicle shall be utilized if it is leaking brake, hydraulic, or other fluids, and Contractor shall clean up any leaks or spills from their Collection Attachment 1 40 of 89 -32 Vehicles per the NPDES permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such cleanup efforts. (M) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement. This inventory shall list all equipment by manufacturer, ID number, date of acquisition, type and capacity. (1.{) Contractor shall utilize Collection Vehicles of a size, weight, nature, and type so as to not be unreasonably intrusive on the community with respect to noise, emissions, maneuverability, safety, and other factors and to avoid or minimize pavement damage and wear and tear of the street or adjacent properties, as approved by the City Manager. (O) Contractor shall not load Collection Vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local laws or regulations. Noise levels of êquipment used for Collection shall not cxceed 75db (seventy-five decibels) when measured at a distanoe of twenty-five (25) feet from the Collection Vehicle, five (5) feet from the ground. 9.4 Costs of Operation and Damages Contractor shall be responsible for any costs incurred in connection with ensuring all Colleotion Vehicles comply with all Applicable Law, including without limitation, any such laws and regulations that may now exist or hereinafter be adopted relating to noise, fuels, emission standards, or weight limits. 9.5 Citv Inspection City may cause or require any Collection Vehicle used in performance of this Agreement to be inspected and tested at any time and in such manner as may be appropriate to determine that the Collection Vehicle is being maintained in compliance with the provisions of this Agreement. 9.6 Correction of Defects and Removal of Vehicles from Use withi0 City Contractor agrees to immediately remove from service, and replace or repair, to the City's satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, unsafe, unsanitary, leaking, out of compliance with any law or regulation or this Agreement, or otherwise in an unsatisfactory operating condition; and any such Collection Vehicle shall not be returned to service until the City Manager gives his written consent for its return. Attachment 1 41 of 89 .JJ- SECTION 10. CONTRACTOR'S SOLD WASTE HANDLING SERVICE PERSONNEL 10.1 Uniforms Each of Contractor's Collection employees shall wear a clean uniform bearing Contractor's name, 10.2 ldentification of Employees Contractor shall provide business cards or similar devices, for all of its employees, and all authorized subcontractors, who may make personal contact with Customers. City may require Contractor to notify Customers yearly of the form of said identification. 10.3 Driver's License Each employee operating a vehicle as part of his or her duties shall, at all times, caffy a valid operator's lioense for the type of vehicle he or she is operating. All employees who may have contact with Customers in the course of performing their duties shall possess the ability to communicate effectively with Customers. 10.4 Screening of Field Employees Contractor shall make reasonable efforts to determine if its employees working in the field (i.e., drivers of Collection Vehicles, and employees otherwise involved in Collection at Customer Premises) have been convicted of a felony, and shall identify any such employees known to it to City. City shall have the ability to require that any employee so identified by Contractor not work in the field within City. 10.5 Discontinued Use of Unsatisfactory Emplovees No employee shall continue to have any involvement whatsoever with regard to any work in anyway relating to or arising from this Agreement if City gives notice to Contractor that such employee is determined by City to be discoufteous, disorderly, inefficient, or otherwise objectionable (provided the term "otherwise objectionable" shall not permit City to "ban" an employee for reasons that violate public policy; and, further, City shall give a reason for requesting the "ban" of any cmployee from engaging in work related to this Agreement). 10.6 Training and Legal Compliance Contractor shall provide operating and safety training that meets minimum CaIOSHA standards for a1l personnel, and shall comply with all laws and regulations applicable to its employees and personnel. Attachment 1 42 of 89 -34- 10.7 Customer Service 10.7.1 Office Hours Contractor shall maintain an office for communication with the public that at a minimum, wiil be open from 8:00 a.m. to 5:00 p.m. Monday through Friday and from 8:00 a.m. to 12:00 noon on Saturdays, At least one responsible and qualified representative of Contractor, capable of communicating in English and Spanish, shall be present and available during all times that an office is required to be open as noted above ("Office Hours"), for personal communication with the public regarding Billing, the payment of Bills, complaints, customer service inquiries, etc., and a similarly qualifred Person shall be available for communication with the public by phone during any times other than Office Hours when Collection is occurring. 10.7.2 1þlephone Customer Service Requirements 10.7.2.1 Toll Free Number Contraotor shall maintain a toll free telephone number that rings at an office within Orange County at all times during Office Hours. Both English and Spanish speaking personnel will be available during Office Hours to assist Customers with telephonic inquiries. Contractor shall have the ability (through the use of outside resources or otherwise) to communicate with Customers who only speak Spanish to ensure their inquiries, questions, complaints and other matters are dealt with in a reasonably timely fashion. All such personnel shall be polite and responsive, and shall be sufficiently knowledgeable, and have the authority to respond and/or advise Customers seeking assistance. Contractor's telephone system shall be adequate to handle the volume of calls typically experienced on the busiest days. Contractor shall provide City with a24-hour emergency number to a live Person, not voice-mail. 10.1.2.2 Call Resnonsiveness Contractor shall make reasonable attempts to answer all phone calls within five (5) rings. Il a call has been placed on hold for three (3) minutes, the caller will either be switched to a message center which shail be responsible to obtain the caller's address and phone number, or a Customer service representative will obtain the Customer's address and a number at which the call can be retumed, Contractor shall make at least th¡ee attempts within the next twenty-four (24) hour period to return the call, with the first such attempt not more than one (1) hour afler the caller leaves the message. If Contractor is unsuccessful in contacting the Customer after following this procedure, it shall send a letter to the caller indicating its efforts. 10.7.3 eornnlajnt Documentation All service complaints shall be directed to Contractor. Contractor shall log all complaints received and said log shall include the date and time the complaint was received, the name, address and telephone number of the complainingpariry, a description of the complaint, the name of the employee recording the complaint and the action taken by Contractor to respond to and remedy thc complaint. All written Customer complaints and inquiries shall be date-stamped when received, AII complaints shall be initially responded to within one (1) business day (Monday ttn'ough Friday) of receipt. Contractor shall log action taken to respond to and remedy Attachment 1 43 of 89 -3 5- the complaint, Daily logs of complaints shall be retained for a minimum of twenty-four (24) months. All Customer service records and logs kept by Contractor shall be available to City upon request. City shall, at any time during regular Office Hours, have access to Contractor's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. Contractor shall provide to City on a monthly, quarterly, and annual basis, a complaint log, in a form satisfactory to the City, that includes all of the complaints logged pursuant to this Section, the complainant and the resolution, 10.7.4 Resolution of Customer Complaints Disputes between Contractor and its Customers regarding the services provided in accordance with this Agreement may be resolved by the City. The City's decision shall be final and binding. Should Contractor and Customers not be able to establish a rnutually acceptable fee to be charged for special services as set forth in Section 8.10, the matter shall be dealt with pursuant to this Section, be determined by the City, and the City's decision shall be final. Intervention by the 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, I0.7.5 Government Liaison Contractor shall designate in writing a "Govemment Liaison" who shall be responsible for working with City and/or City's designated representative(s) to resolve Customer complaints. City shall have the right to approve Contractor's choice f.or a liaison. i0.8 Ed-ucation and Public Awateness 10.8.1 General Contractor acknowledges and agrees that education and public awareness are critical, key and essential elements of any efforts to achieve the requirements of AB 939. Accordingly, Contractor agrees to exploit opportunities to expand public and Customer knowledge conceming needs and methods to reduce, reuse and recycle Solid Waste and to cooperate fully with City in this regard. 10.8.2 Written Proeram Materials Contractor shall maintain a program of providing information relevant to the need and the methods to reduce, reuse and recycle Solid Waste, and Contractor upon request fiom City, may include such information along with Bills provided to Customers. All public education materials shall be approved in advance by City. Contractor shall keep a record of all promotional and public education materials utilized, and shall provide quarterly reports summarizing its public outreach and education efforts. 10.8.3 Public Outreach At a minimum, Contractor shall conduct school assemblies and promote recycling through presentations and educational materials to the Chamber of Commerce, homeowners Attachment 1 44 of 89 -36- associations, construction contractors and other civic groups, Contractor shall also provide articles on recycling for local newsletters. 10.8.4 On-qoing Education Requjre¡nents In order to promote public education, in addition to any other materials it develops, Contractor shall create the following public education materials and programs at its expense, which will be distributed as indicated below. All of these materials and programs shall be produced and/or available in both English and Spanish languages, and all written materials shall b" upptou"d by City in advance of distribution, and shall bear the City seal, unless otherwise approved by the City. 10.8.4.1 Annual Nofices Not less than once each year during the Term of this Agreement, Contractor shall prepare and distribute to each Customer a brochure providing relevant information about Contractor's services, including, at a minimum: information regarding access to and use of available services; Collection schedules; holiday Collection schedules; Contractor's Customer service numbers; procedures to begin and terminate services; and information promoting and explaining available programs, such as Mixed Waste, Recycling, Green Waste, Holiday Tree and Bulky Item Collections, the availability of Household Hazardous Waste and e-waste Collection, and the proper handling and disposal of such wastes. 10.8.4.2 How-To Brochure Contractor will prepare and distribute a brochure packet to new Customers when they start service. This packet will contain updated information on how to use the Contractor- provided Carts, when, where and how to place Solid Waste for Collection, and who to contact with service or Billing questions. 10.8.4.3 Corrective Action Notice Contractor shall develop a corrective action notification form for use in instances where a Customer sets out inappropriate materials for Collection, that explains thc appropriate manner for disposal of such items. 10.8.4.4 Cóntlactor Representative Contractor shall retain on its staff an individual who shall as part of his or her job function routinely visit civic groups, school assemblies, and homeowners' associations, to promote and explain the Recycling options and other programs that Contractor offers, and participate in demonstrations and civic events. 10.8.4.5 Web Site Page Contractor shall dedicate one page of its web site to City services, which shall include at least the following information: a listing of contact numbers for Customer Service; information on Bulky Items Collection; Collection schedules, including holiday schedules; and the Attachment 1 45 of 89 -37- procedures to begin and terminate services. During the first six months following the implementation of new services hereunder, this web page shall also provide information explaining the new service, and the ploper use of Car1s. 10.8.5 Public Education Fund Contractor shall maintain a Public Education Fund ("Public Education Fund") for the sole purpose of supplying public education and information about source reduction, recycling, and composting, Contractor shall only spend monies from the Public Education Fund for programs, matérials, or other matters approved by the City Manager. The Public Education Fund shall be funded from two sources, as discussed herein. First, Contractor shall deposit an amount equal to $0.09 multiplied by the number of all Customers at Residential Premises receiving service via Carts each month. Secondly, Contractor shall deposit an amount equal to that noted on the following Table 1 associated with each 3 yard and 4 yard Refuse Bin or Mixed Waste Bin in use at every Commercial Premises each month, and depending on the frequency of service for each such Bin: Table 1: Monthlv Pul¡lic [ducation Fund Calculation For Commercial Premiscs The above amounts shall be deposited in the Public Education Fund monthly on or before the thirtieth (30th) day of each month, and be based on the total number of (as applicable) Customers or Bins in service in the prcceding month. Should any deposit due date fall on a weekend or holiday, the deposit shall be due on the first business day thereafter. Concurrent with the Public Education Fund deposits, Contractor shall provide a statement to City, certified by an offrcer of Contractor, attesting to the accuracy of the amounts deposited, and setting forth the basis for their calculation in a manner acceptable to City. Deposits shall occur into an interest bearing bank account, subject to approval by the City Manager, separate from other funds utilized by Contractor. All interest earned on the Public Education Fund shall remain as part of the Public Education Fund. All records related to the Public Education Fund shall be made available to City for audit review upon request. Attachment 1 46 of 89 Frequency of Service for 3yd and 4yd Refuse or Mixed Waste Bins Public Education Fund Payment Amount I x p/wk $1.42lmonth 2 xp/wk 52.22lmonth 3 x p/wk $2.92lmonth 4 x p/wk $3.81/month 5 x p/wk $4.63/month 6 x p/wk $5.45lmonth -3 8- SECTION 1I. CONTRACTOR'S CONSIDERATION In addition to any other consideration set forth herein, as part of its consideration for entering this Agreement, and for the cxclusive franchisc, right and privilege to provide Solid V/aste Handling Services within City as specified herein Contractor shall provide the following: 1 1.1 Reimbursement of Nesotiatio¡r Costs Contractor shall pay to City a one-time lump sum payment to reimburse the City for its out-oÊpocket costs (including specifically consultant and legal fees) incurred in connection with the negotiation and ultimate award of this Agreement. City shall provide an invoice to Contractor f.or the amount due pursuant to this Section and the outstanding amount shall be paid by Contractor within thirty (30) days of being invoiced by City ll.2 Administrative Cost Reimbursement On or before July 1, 2074, and on or before July 1 each year thereafter, Contractor shall make a payment to City in the amount more fully set forth in this paragraph intended to defray its administrative costs related to this Agreement (the "Administrative Cost Rcimbursement"). The amount of the annual Administrative Cost Reimbursement shall be Thirty Thousand Dollars ($30,000.00) [adjusted annually by the change in the Consumer Price Index for the 12 month period ending the preceding December 31, for All Urban Consumers, CUURA421SAO not seasonally adjusted, all items index (CPI-U) - Los Angeles County, Riverside County, Orange County average]. If any Administrative Cost Reimbursement payment is not timely paid by Contractor, and in addition to any other remedy provided by law, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) per month, or pofiion thereof, of the amount owing until paid. I L3 Franchise Fee I 1.3.1 Monthlv Franchi[e Fee Contractor shall pay to City, a franchise fee equal to five percent (5%) of Contractor's annual Gross Receipts each year, or portion thereof, during the entire Term of this Agreement (the "Franchise Fee"). Said Franchise Fee shall be paid to City monthly on or before the thirtieth (30th) day of each month. Should any such due date fall on a weekend or holiday in which the City's business offices are closed, payment shall be due on the first day thereafter in which the City's business offices are open. The amount of each payment shall be equal to five percent (5%) of Contractor's Gross Receipts in the calendar month preceding the date payment was due. The Franchise Fee due hereunder shall apply to Gross Receipts of Contractor collected after the expiration of the 'l'erm hereof relating to Contractor's performance during the Term hereof. Franchise Fees shall be accompanied by a statement certified by an officer of Contractor attesting to the accuracy of the amounts paid, and setting forth the basis for their calculation in a manner acceptable to City. Attachment 1 47 of89 -39- Il.4 Services at City Facilities Contractor shall provide Solid Waste Handling Services (including specifically Coilection, disposal ancl processing) at all Premises owned and/or operated by the City at no cost to City, and shall provide Containers for such service as City deems appropriate for each of its various Premises (i.e., Carts, Bins or Rolloff Boxes). Such services shall be provided for all existing City facilities, as they may be expanded from time to time, as well as all new or additional facilities acquired/constructed during the Term hereof at no additional cost. Contractor shall carry out its obligations pursuant to this provision in a manner, and to a degree, approved by the City Manager. SECTION 12. CHARGE FOR LATE PAYMENTS In the event Contractor fails to timely make any of the payments provided for in this Agreement (whether reimbursements, Franchise Fees, payments of funds collected in connection with Billing services, or otherwise), Contractor shall pay to City, as additional consideration, a sum of money equal to five percent (5%) of the amount due. This amount is required in order to defray those additional expenses and costs incuned by City by reason of the delinquent payment including, but not limited to, the cost of administering, accounting for, and collecting said delinquent payment and the cost to City of postponing services and projects necessitated by the delay in receiving the revenue. In addition, any amounts not paid to City by Contractor within sixty (60) days of the due date shall be subject to interest in the amount of ten percent (10%) per annum, calculated on a daily basis for each day such sums remain past due. SECTION 13. CONTRACTOR'S BILLING SERVICES AND SYSTEMS 13.1 Billing Contractor shall provide services pursuant to this Agreement at rates it sets, charges to, and collects from Customers; provided, however, Contractor's rates shall not exceed those set forth in the attached Exhibit A, which sets out the maximum rates that may be charged by Contractor for the various different service options that may occur hereundcr, as such maximum rates may be adjusted from time to time pursuant to the terms hereof. Contractor shall provide all Customers with itemized Bills, detailing charges for all services, including charges for late payments, as well as the period of service to which the Bill applies, Contractor acknowledges that it, and not Customers, is to pay a Franchise Fee, and the other fees noted herein to City as consideration for this Agreement. Accordingly, Contractor's Bills shall not include separate itemization of a "Franchise Fee," or other similar designation relating to fees which Contractor is required to pay to City, Contractor shall reproduce and include in any Billing, at no additional cost, one page informational "inserts" provided by City. Billings may be made on a quarterly basis in advance of services being provided for all Customers at Single Family or Multi-Family Dwellings utilizing Carts for Collection, and on a monthly basis in advance for all other Customers. Premises ordering service after the hrst of the Attachment 1 48 of 89 -40- month or canceling service prior to the end of the month shall be charged on a prorated per- pickup basis. 13.1.1 St¡spension of Service Due to Non'Payment Contractor may discontinue service to any Customer as set forth in this Section. Customers may be advised that account payments are due within thirty (30) days after the date of Billing. Contractor may notify Customers, using a form approved by the City Manager, that u..or.rt, are past due thirty-five (35) days after the initial invoice date, and thereafter rnay send a final reminder notice forty-five (45) days after the initial invoice date. Said forms shall contain a statement that services may be discontinued sixty (60) days from the date of the initial invoice if payment is not made before that time. If payment is not made by the expiration of said sixty (60) ãay period, Contractor may discontinue service to that Customer upon the expiration of said sixty (60) day period. Contractor shall resume Solid Waste Collection on the next regularly scheduled Collection day for any Customer whose service is discontinued upon receipt of payment of delinquent fees and any related service restart charges in accordance with the maximum rates set forth in Exhibit A, or at such sooner time as directed to do so by City. Contractor may not charge for service during any period in which service was suspcnded. Any delinquent fees or service charges to be imposed in connection with delinquent accounts shall not exceed the maximum rates set forth in Exhibit A. A deposit equal to the maximum rate for one month's service as set forth on Exhibit -t\, as such rates may be amended from time to time, may be required of accounts which have been discontinued for non-payment prior to re'instituting service at such accounts. Notwithstanding the above, in the event of a Billing dispute and/or to avoid negatively impacting public health or safety, Contractor shall not suspend service to any Customer without the City's prior consent, and shall continue to provide service to any Customer if directed to do so by City without regard to the status of said Customer's account. Any deviation from this sample procedure shall be submitted for approval to the City Manager. 13.I.2 U$occupied Premises During any time when Contractor is made aware that a Premises is unoccupied for more than forty-five (45) days, and Collection services are not provided by Contractor, Contractor shall not Bill such Premises for Solid Waste Collection. Contractor may remove its Containers from any Premises after being notihed by a Customer that service is to be cancelled as a result of the Premises being unoccupied. The Customer at any such Premises shall be responsible to provide notice to Contractor to cease service due to avacancy, as well as reasonable evidence pursuant to such guidelines as the City Manager is hereby authorized to develop, demonstrating the Premises was vacant for the period in question. Such Customers shall be entitled to a refund from Contractor for any amounts paid to Contractor for each thirty (30) day period during which the vacancy exists. Any Customer grievance regarding a claim that a Premises was unoccupied and received no service, and hence should not be Billed for a given period pursuant to this Section, may be appealed by the Customer to the City Manager whose decision shall be final. It is the intent of the Parties that a Contractor shall not be entitled to charge for services which are not needed or used. Accordingly, the time frame set forth in this Section is not intended to suggest that Contractor may Bill Customers for up to 45 days of service in situations in which no service is needed or used due to avacaîcy. Attachment 1 49 of 89 -4t- 13.2 Minimunr Requiremenls for Billing Statements In addition to any other pertinent data, Billing statements mailed by Contractor shall be printed to contain the following information, and the language contemplated for compliance with this requirement shall be subject to the City Manager's approval: (A) A "statement date" indicating the date the Bill is generated and mailed, (B) For Residential Cart service: the service address associated with the account, the Billing address, an itemized quantity of each type of service the Customer receives, the maximum rate charged for each type of service, and the bar code associated with any Carts located at the address when (if) available. Customers should be able to determine from the Bill the types of services they are receiving and the rates charged for each individual service. (C) A notice to Customers that payments are due upon reccipt of the Bill, and considered delinquent if not paid on or before the 30th days following the invoice date, an advisement of the date and time by which payrnents must be received in order to avoid delinquent fees (i.e., 4:00 p.m. on the 60th day following the statement date), and a notifrcation of the amount of fees that will be imposed and the potential for service interruptions if payments are not received by the specified date and time. (D) An advisement to Customers that payments can be made in the following manner: (1) by mailing payment to Contractor at such address as Contractor may designate; or (2) by automatic withdrawal from a checking account; or (3) by major credit card on-line (i,e., via the Internet). (E) An advisement that inquiries relating to Solid Waste Collection should be directed to Contractor, including an address, phone number and intemet site, for such inquiries. 13.3 Billing System 13.3.1 Computerization ofAccount Information Contractor shall provide and mainlain, at its expense, computer equipment sufficient to operate pertinent computer programs and otherwise provide the services required by this Section. Contractor shall create, at its o\Mn expense, computer programs sufficient to operate a computerized Billing system, permanently maintain all account records and otherwise meet the requirements of this Section. Attachment 1 50 of 89 -42- 13.3.2 Minimum Computer Programming Requirements In addition to any other requirements set forth herein, the programs created by Contractor to operate and maintain the Billing system shall at a minimum be able to perform the following functions: (A) create a permanent record of any adjustment to a Customer's account; (B) work in connection with a backup system such that all Customer account data and records is protected from a computer failure and permanently preserved on not less than adaily basis; (C) allow Customers to make payments on-line (i,e., via the Internet) by a major credit card. 13.3.3 Billinq Inqr¡ides All Billing inquiries shall be entered into the computerized Billing system. Contractor's computer programs shall keep a permanent record of all Billing inquiries and all adjustments to Customer Bills resulting therefrom. 13.3.4 Distribution of Public Information If requested to do so by City, and at no charge to City, Contractor shall insert any printed material prepared by City into its Billing statements for delivery to its Customers. City shall not request Contractor to include any printed material in its Bills if such material is of a size, shape, or weight that would increase Contractor's postage costs or if such material does not fit into the envelopes utilized by Contractor to mail the Bills. Any printed material to be included in the Bills to be mailed by Contractor shall be provided to Contractor within a reasonable time in advance of Contractor's scheduled mailing date, such that the insertion of such material into Billing envelopes does not delay their scheduled mailing date. 13.4 Pay¡nent. Acsountins Svstems 13.4.1 Collection and Processing of Payments 13,4.1.1 Accounting and Deposit of Funds All payments received by Contractor shall be appropriately credited to Customer accounts, deposited in a bank account and accounted for in a businesslike manner utilizing generally accepted accounting principles. To facilitate audits and record keeping Contractor shall make all withdrawals from its bank accounts by check, ACH debit/credit or wire, regardless of whether the withdrawal is to provide funds to City, Contractor, or any permissible subcontractor of Contractor. Contractor may charge Customers for any returned checks at rates that do not exceed the maximum rates set forth on Exhibit A. Attachment 1 51 of 89 -43- 13 .4.1 .2 Allocation of Funds With respect to payments received from each Customer, unless a Customer specifically directs a different allocation, funds shall be allocated first to outstanding charges for Solid Waste Collection, then to any related delinquency fees or other administrative charges, up to the amount of any outstanding balance. Any overpayment shall be credited to future Bills in the same sequence, or returned to Customers as appropriate. Contractor may charge Customers for any refunds issued, where said refund is not due to errors in accounting by Contractor, at rates that do not exceed the maximum rates set forth on Exhibit A. SECTION 14. FAITHFUL PERFORMANCE 14.l Surety Contemporaneously with execution of this Agreement, as security for Contractor's faithful performance of all obligations of this Agreement, Contractor shall provide a surety mechanism (the "Surety") as more fully defined below in the amount of One Hundred Thousand Dollars ($100,000.00). The Surety may be comprised of either a performance bond or an irrevocable letter of credit, or a combination of both. If a letter of credit is utilized to satisfy some or all of the Surety requirement, it shall be drawn upon a financial institution of a financial strength satisfactory to the City Attomey which has an offrce within one hundred (100) miles of City and otherwise in a form acceptable to the City Attorney. The performance bond, if any, shall be issued by a duly authorized corporate surety company authorized to do business in California, and in a form acceptable to the City Attorney for the City. The cost of the Surety shall be the sole responsibility of Contractor. The Surety shall be released within thirty (30) days after both (i) the expiration of the Term of this Agreemcnt and (ii) Contractor's satisfactory performance of all obligations hereunder. 14.1.1 Forfeiture of Surety In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the Surety, as may be necessary to recompense and make whole the City, forfeited to the City, Upon partial or full forfeiture of thc Surety, Contractor shall restore the Surety to its original amount within thirty (30) days of the City's notice to do so. Failure to restore the Surety to its full amount within thirty (30) days shall be a material breach of this Agreement. 14.1,2 Use of Surety bv City Notwithstanding any provision hereof to the contrary, thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, either the letter of credit or performance bond comprising the Surety may be utilized by City for purposes including, but not limited to: (1) Payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City, including specifically liquidated damages; (2) Reimbursement of costs bome by City to correct violations of this Agreement not corrected by Contractor. Attachment 1 52 of 89 -44 14.2 Reolaceme¡tt Letter of Credit City may draw upon the entire letter of credit (if any) utilized to meet Contractor's obligations perlaining to the Surety, and convert it to a cash deposit, if Contractor fails to cause the ietter of credit to be extended or replaced with another satisfactory letter of credit no later than sixty (60) days prior to its expiration. SECTION 15. INSURANCE COVERAGE Contractor shall procure and maintain during the entire Term of this Agreement the following types of insurance, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor's performance hereunder or the actions or inactions of any of Contractor's officers, agents, iepresentatives, employees, or subcontractors in connection with Contractor's performance. The insurance requirements hereunder in no way limit Contractor's various defense and indemnifrcation obligations, or any other obligations as set forth herein. 15.1 Minimum Scope of Insurance Coverage shall be at least as broad as: l. The most recent editions of Insurance Services Office Commercial General Liability covemge ("occurence" form CG 00 01). 2. The most recent editions of Insurance Services Ofhce form number CA 00 0l 1001 covering Automobile Liability, code 1 "any auto". 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. 15.2 Minimum Limits of Insurance Contractor shall maintain in force for the Term of this Agreement limits no less than: 15.2.1 Comprehensive Ceneral Liability Ten Million Dollars ($10,000,000.00) limit aggregate and Ten Million Dollars ($10,000,000.00) lirnit per occunence for bodily injury, personal injury and property damage. Such limits can be achieved through a combination of primary and excess liability policies. 15.2.2 Automobile Liabilitv Ten Million Dollars ($10,000,000.00) limit aggregate and Ten Million Dollars ($10,000,000.00) limit per accident for bodily injury and property damage. Such limits can be achieved through a combination of primary and excess liability policies. Attachment 1 53 of 89 -45- 15.2.3 Workers' Compensation and Employers Liabilitv 'Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of One Million Dollars ($1,000,000.00) per accident. 15.3 Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by City. If, in the reasonable opinion of the City, Contractor does not have sufficient f,rnancial resources to protect the City from exposure with respect to any deductibles or self-insured retentions Contractor shall prooure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 15.4 Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provision: 15.4.1 General Liability and Automobile Liability Coverage City and its elected and appointed officials, officers, employees, agents and volunteers shall be named as additional insureds in connection with liability arising out of activities perfiormed by or on behalf of Contractor; Premises owned, leased or used by Contractor; and vehicles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the saope of protection afforded to City or its elected and appointed officials, offîcers, employees, agents and volunl.cers. Contraotor's insurancc coverage shall be the primary insurance for the City and its elected and appointed officials, officers, empioyees, agents and volunteers in connection with the above enumerated categories. Any insurance or self-insurance maintained by City or its elected and appointed officials, officers, employees, agents and volunteers shall be in excess of Contractor's insurance and shall not contribute with it. Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to City or its elected and appointed officials, offtcers, employees, agents and volunteers. Coverage shall state that Contractor's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 15.4.2 Workers' Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against City and its elected and appointed officials, officers, employees, agents and volunteers for losses arising from work performed by Contractor for City. 15.4,3 Environmental Pollution Control Insurançg Contractor shall maintain either an endorsement to its general liability policy, or a separate policy of insurance covering environmental pollution and contamination that names the City as an additional insured. Said coverage shall be in the amount of not less than Five Million Dollars ($5,000,000) per occurence, and Five Million Dollars ($5,000,000) in the aggregate, and shall substantially comply with all other provisions set forth in Section 15.4,1 . Attachment 1 54 of 89 -46- 15.4.4 All Coverages Each insurance policy required by this clause shall be endorsed to state that coverage slrall ¡ot be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. 15.5 Acceptability of Insurers The insurance policies required by this Section shall be issued by an insurance company or companies authorized to do business in the State of California and with a rating in the most recent edition of Best's Insurance Reports of size category VII or larger and a rating classification of A or better, unless otherwise approved by the City Manager. 15.6 Verifrcatielr-ofCoveraqg Contractor shall furnish City with certificates of insurance and with original endorsements affecting coverage required by this Article. The certificates and endorsements for each insurance policy are to be signcd by a Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms provided by or acceptable to City and are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 15.7 Loss or Reduction in Insurance In the event that Contractor fails to retain or maintain insurance with the scope and amounts of coverage required hereunder, City shall have the right, but not the obligation to either terminate this Agreement, or obtain insurance coverage as required herein on behalf of Contractor and utilize funds from the Surety defined in Section 14 to pay the cost of providing such coverage. SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND LIMITATIONS 16.1 General Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement (collectively referred to as an "Assignment") to any other Person without the prior approval by the City Council. The City Council has unfettered discretion to approve or deny such an Assignment. Any such Assignment made without the approval by the City Council shall be void and the attempted Assignment shall constitute a material breach of this Agreement. 16.2 Assignment to be Eroadly Interpreted For purposes of this Section the term "Assignment" shall be given the broadest possible interpretation and shall include, but not be limited to: (i) a sale, exchange or other transfer of Attachment 1 55 of 89 -47- substantially all of Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of any membership interest of Contractor to a third party; (iii) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow affangement, liquidation or other transaction which results in a change of ownership or control of Contractor; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Contractor or any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, *tit 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 or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change or control of Contractor. 16.3 Nature pf Agreement - Personal to Conttactor Contractor acknowledges that this Agreement involves rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (l) Contractor's experience, skill and reputation for conducting its Solid Waste I{andling Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement. 16.4 Procednre for Consideration of Assignment If Contractor requests City's consideration of and consent to an Assignment, the City Council may deny, approve or conditionally approve such request in its sole and absolute discretion. Under no circumstances shall City be obliged to consider any proposed Assignment if Contractor is in default at any time during the period of consideration. Should the City consent to any Assignment request, such Assignment shall not take effect until all conditions relating to the City's approval have been met. Any request for an Assignment shall be made in a manner to be prescribed by the City Manager, and no request by Contraetor for consent to an Assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the Assignment if approved, made reasonable assurances that it will meet) the following requirements: (A) Contractor shall undertake to pay City its reasonable direct and indirect expenses, including administrative, investigative, consulting, and attomeys' fees and 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 (collectively the "Administrative Assignment Fee"). An advance non-refundable payment in an amount to be determined by the City Manager towards the Adrninistrative Assignment Fee shall be paid to the City prior to City's consideration of any Assignment request, although Contractor shall be responsible to pay all costs incurred by City in Attachment 1 56 of 89 -48- considering a request for Assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the Assignment. (B) If requested to do so, Contractor shall furnish City with audited financial statements of the proposed assignee's operations for the immediately preceding three (3) operating years. (C) Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Contractor under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local laws, including the Environmental Laws and that the assignee has provided City with a complete list of such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Collection and disposal of Solid Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective marìner. (D) The proposed assignee shall execute an agreement assuming all of Contractor's rights and liabilities under this Agreement. SECTION 17. R-EVIEW OF' SERVICES AND PERFORMANCE 17.1 Performancel{earine (A) Commencing in or about July 2014, and on a biennial basis thereafter, City may hold a hearing to review Contractor's Solid Waste Collection effo(s, source reduction, processing and other diversion services and overall performance under this Agreement (the "Solid Waste Services and Performance Review Hearing"). The purpose of the Solid Waste Services and Performance Review Hearing is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, recycling, processing and disposal to achieve a continuing, advanced Solid Waste Collection, source reduction and recycling and disposal system; and to ensure services are being provided by Contractor with adequate quality, effectiveness and economy and in full compliance with the terms of this Agreement. Topics for discussion and review at the Solid Waste Services and Performance Review Hearing shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939's goals and where applicable AB 341's goals, regulatory constraints and Contractor performance. Attachment 1 57 of 89 -49- City and Contractor may each select additional topics for discussion at any Solid V/aste Services and Performance Review Hearing. (B) In addition to the Solid Waste Services and Performance Review Hearings City may hold in accordance with the immediately preceding paragraph, if the number of Customer complaints regarding Contractor's Solid Waste Collection are deemed by City to be excessive, City may, at any time (subject to the paragraph immediately below), hold a Solid Waste Services and Performance Review Hearing. (C) City shall notifu Contractor of its intent to hold a Solid Waste Services and Performance Review Hearing at least ninety (90) days in advance thereof. The notice will indicate whether the hearing will occur before City staff, the City Council, or such other body as the City may designate in the notice. Forly-five (45) days after receiving notice from City of a Solid Waste Services and Performance Review Hearing, Contractor shall submit a report to City which may contain such information as it wished to have considered, and shall contain the following: (l) Cunent diversion rates and a report on Contractor's outreach activities for the past year. (2) Recommended changes and/or new services to improve the City's ability to meet the goals of AB 939 and AB 341 and to contain costs and minimize impacts on rates. (3) Any specific plans for provision of changed or new services by Contractor, (D) The reports required by this Agreement regarding Customer complaints shall be used as one basis for review of Contractor's performance, and Contractor may submit other relevant performance information and reports for consideration at the Solid Waste Services and Performance Review Hearing. In addition to the above, City may request Contractor to submit any other specific information relating to its performance for consideration at the Solid Waste Services and Performance Review Hearing, and any Customer may submit comments or complaints during or before the Hearing, either orally or in writing. Contractor shall be present at and participate in the Solid Waste Services and Performance Review lJearing. SECTION 18. CITY'S REMEDIES; DEF.AULT AND TERMINATION 18.1 Notice of Default If the City Manager determines that Contractor has defaulted in the performance of any obligation hereunder, or that Contractor's performance pursuant to this Agreement with respect to such matters has not been in conformity with reasonable industry standards which are obtained in similar cities in Southern California, the provisions of this Agreement, the requirements of the Municipal Code, the requirements of CalRecycle, including, but not limited to, requirements for source reduction and recycling or any other applicable federal, state, or local law or regulation, including but not limited to the laws governing transfer, storage, or disposal of Special Wastes, Attachment 1 58 of 89 -50- or Hazardolls Waste, the City Manager may provide written notice to Contractor of such default. The City Manager may, in such written notice, set a reasonable time within which conection of such default shall be made. Unless a longer or shorter time is otherwise specified by the City Manager, a reasonable time for correction shall be thirty (30) days from the date such written notice is given. 18.2 Failure to Cure If Contractor fails to correct, to the satisfaction of the City Manager, all deficiencies contained in the written notice thereof within the specified time, or if it is not reasonably possible to correct such deficiencies within the specified time, and Contractor fails to commence to correct or remedy such defrciencies within the specified time and diligently effect such cor¡ection or remedy thereafter, then the City Manager may refer the matter to the City Council for review, or review the matter himself. 18.3 Review by City Manager If the City Manager reviews the matter and determines that Contractor has failed to properly or adequately cure any default set forth above, the City Manager, in the exercise of his discretion, may terminate this Agreement, or take such other action as he deems appropriate to pursue any remedy available to City. A decision or order of the City Manager shall be final and binding on Contractor unless Contractor files a "Notice of Appeal" with the City Clerk within five (5) business days of the date the notice of the City Manager's decision is given. The City Manager shall schedule any appeal for consideration by the City Council at the earliest feasible City Council Meeting following the date a Notice of Appeal is given to City. 18.4 City Council Revievy In the event an appeal of a decision of the City Manager is filed, or if the City Manager refers the matter to the City Council without rendering a decision, the City Council shall set the matter for consideration before the City Council as a regular agenda item. In reviewing the matter the City Council may consider any information reported by the City Manager regarding the deficiencies, and shall give Contractor, or its representatives and any other interested Person, a reasonable opportunity to be heard. The City Council shall determine whether Contractor has failed to properly or adcquately perform as set forth above, and if so whether to terminate the Agreement, or to pursue any other remedy available to City. 18.5 Performance Durine Reviews Contractor's performance under this Agreement is not excused during any period of time when its performance is under review as set forth above, including at any time prior to a final decision as to whether such performance is deficient. 18.6 Termination without Rieht to Cure 'l'he above right of termination as a result of Contractor's failure to timely cure any <ieficiency is in addition to City's right to terminate this Agreement without affording Contractor an opportunity to cure in circumstances where Contractor is determined by City to have Attachment 1 59 of 89 -51- materially brcached this Agreement. City shall thus be afforded the right to terminate this Agreement in the event of any material breach hereof by Contractor without affording Contractor the right to cure as a result of any action, inaction or circumstance which is a legally defined material breach, or is defined herein as â material breach, and/or under any of the following circumstances which are hereby specifically defined as material breaches: (A) If Contractor practices, or attempts to practice, any fraud upon City. (B) If Contractor becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding. (C) If Contractor willfully violates any orders or rulings of any regulatory body having jurisdiction over Contractor relative to this Agreement, So long as City's rights are not prejudiced during the pendency of any challenge to such orders or rulings by Contractor, Contractor may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no material breach of this Agreement shall be deemed to have occurred until a frnal ruling has been rendered. (D) If Contractor ceases to provide Solid Waste Handling Services as required under this Agreement over all or any portion of the Franchise Area for a period of seven (7) days or more, for any reason not specified as a force majeure event hereunder. (E) If Contractor fails to materially comply with any insurance or indemnification requirement set forth in this Agreement. (F) If City is required to pay any fine or penalty, which is not paid on its behalf by Contractor or which Contractor fails, refuses, neglects or is unable to pay or indemnify City against, relating to any diversion or other requirement of AB 939 andlor AB 341. (G) If Contractor, or any management level employee of Contractor is convicted of a Criminal Matter (as defined herein). For purposes of this Section the term Criminal Matter refers to any felony or misdemeanor offense having any relationship to either Solid'Waste Handling Services or public comrption (including, without limitation, bribery, conflict of interest related allegations, vote selling, or any similar type charges). 18.7 LiquiclatedDamages 18.7.I General The City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining clamages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective Attachment 1 60 of 89 <t ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are thc subject of this Agreement might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. 18.7.2 Service Performance Standards: Liquid-qte-d Damages for Failure to Meet Standards The parties further acknowledge that consistent, reliable Solid Waste Handling Service is of utmost importance to City and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement with it' The pu.ti"s further recognize that some quantified standards of performance arc necessary and âppropriate to ensure consistent and reliable service and performance. The parties further rccognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudioe to City's right to treat such breachcs as an event of default, the parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, 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 the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor Initial Here City Initial Here 18,7.3 Calculations for Liquidated Damages Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below for each type of action warranting such damages: 18,7.3.1 Collection Reliability (A) For each failure to commence service to a new Customer account within seven (7) days after order, which exceed frve (5) such failures annually: S150.00. (B) For each failure, which exceeds ten (10) such failures annually, to Collect Solid Waste from any established Customer on the scheduled Collection day and not Collected within the period described in this Agreement: $150'00' Attachment 1 61 of 89 -53- (C) For each failure to Collect Solid Waste, which has been properly set out for Collection, from the same Customer on two (2) consecutive scheduled pickup days: $150.00. 18.7.3.2 Collection Quality (A) For each occurrence of failure to properly return empty Containers to avoid pedestrian or vehicular traffic impediments or to place Containers upright with lids secured which exceeds ten (10) such occurrences annually: $150,00. (B) For each occumence of excessive noise or discourteous behavior which exceeds ten (10) such occurrences annually: $250.00. (C) For each occurrence of Collecting Solid Vy'aste during unauthorized hours which exceeds five (5) such occurrences annually: $250.00. (D) For each occurrence of damage to private property (unless considered unavoidable damage) in an amount in excess of $1,000 which exceeds five (5) such occurrences annually: $250,00. (E) For each failure to clean up Solid Waste spilled from Containers, excepting amounts that are so nominal in nature that they would not reasonably be expected to be noticed by the driver of a Collection Vehicle, within 90 minutes that exceeds ten (10) such failures amually: $150,00. 18.7.3.3 Customer Responsiveness (A) For each failure to initially respond to a Customer complaint within one (1) business day, which exceeds fivc (5) such occurrences arìnually, and for each additional day in which the complaint is not addressed: $250,00. (B) For each failure to process Customer complaints to City as required herein, which exceeds five (5) such occurrences annually: $250.00. (C) For eaeh failure to removc graffiti from Containers, or to replace with Containers bearing no graffiti, within twenty-four 24) hours of a request from City: $150.00. 18.7.3.4 Timeliness of tsRtôns to Ci tv (A) Any report shall be considered late until such time as a correct and complete report is received by City. A ten day grace period shall apply for each report following its due date, and thereafter for each calendar day a report is late, the daily liquidated damage amount shall be: (1) Monthly Reports:$100.00 per day $250.00 per day Attachment 1 62 of 89 (2) Quarterly Reports -54- (3) Annual RePorts: $350,00 Per daY 18.7 ,4 Process firr Assessment of Liquiclated Darnageq (A) City may determine the occurrence of events giving rise to liquidated damagei through ihe observation of its own employees or representative or investigation of Customer cómplaints. It is the desire of the parties to work together to avoid the imposition of liquidated damages and accordingly City will endeavor to timely communicate to Conftactor any information that it receives which might give rise the imposition of liquidated damages in order to facilitate Contractor's ability to conect any deficiency, or prèvent the recurrence of any conduct for which liquidated damages might eventually be imposed. (B) 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 information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (i0) days after receiving the notice, request a meeting with City. Contractor may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. City will provide Contractor with a written explanation of his or her determination on each incident(s)/non-performance prior to authoriiing the assessment of liquidated damages. The decision of City shall be final. (C) 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' 18.7.5 'fimine of Payment Contractor shall pay any liquidated damages assessed by City within ten (10) days after they are assessed. If they are not paid within the ten (10) day period, City may proceed against any security required by this Agreement to obtain payment, and/or find Contractor in default and exercise its right to terminate this Agreement as set forth herein. SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING i9,l Adminisrativel{earing Should Contractor contend that City is in breach of any aspect of this Agreement, it shall give notice to the City Manager requesting an administrative hearing on the allegation. The hearing shall occur as soon as reasonably possible, or on such date as mutually agreed by the parties, and shall be held before an impartial hearing officer to be determined by the City Munug... The hearing officer shatl make an advisory ruling on Contractor's allegations, and rugg"it a remedy if a breach by City is determined to exist. The hearing officer's ruling and rec-ommendations shall become flrnal and binding if the parties so agree in writing within thirty (30) days of the date notice of the decision is given to both parties. Otherwise, the hearing officer's ruling shall have no further force or effect. Attachment 1 63 of 89 -55- 19.2 Other Remedies: Claims Contractor shall be entitled to all available remedies in law or equity for City's breach of this Agreement; provided, however, Contractot shall not f,ile or otherwise commence any action againsi City, in láw or equity, in any court, until after an administrative hearing as set forth above hãs been completed, and the above noted thirty (30) day period to accept the hearing officer's decision has pàssed, or either City or Contractor has given timely written notice to the other that it will not accept the hearing officer's decision. 19.3 Actions for Dalnases As a prerequisite to the frling and maintenance of any action for damages by Contractor against City ärising out of this Agreement, Contractor shall present a claim to City, as required b! Government Code Section 910 et seq., within 30 days of the date of the occurrence giving rise to the claim for damages. SECTTON 20. CITV'S ADDITIONAL REMEDIES ln addition to any other rernedies set forth herein, City shall be entitled to any or all of the following rights and remedies in the event of a breach of this Agreement by Contractor: (A) The right to use Contractor's equipment for the purpose of Collecting, transporting , andlor disposing of Solid Waste, including Recyclable Material, for a period not to exceed six (6) months. In the case of equipment not owned by Contractor, Contractor shall assign to City, to the extent Contractor is permitted to do so under the instruments püsuant to which Contractor possesses such equipment, the right to use and possess the equipment. If City exercises its rights under this Section, City shall pay to Contractor the reasonable rental value of the equipment for the period of City's possession thereof (although payment may, if appropriate, occur in the form of a setoff âgainst damages otherwise owed by Contractor pursuant to the terms hereof); (B) The right to license others to perform the services otherwise to be performed by Contractor hereunder, or to perform such services itself; and (C)Therighttoobtaindamagesand/orinjunctiverelief'Bothparties recognize and agree that in the event of a breach of this Agreement by Contractor, City will ìuffer irreparable injury and inoalculable damages sufficient to support injunctive relief, to specifically enforce the provisions of this Agreement, and to enjoin the breach hereof. SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY 21.1 ProvisionolService Should Contractor, for any reason whatsoever, refuse or be unable to provide Solid Waste Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof, Attachment 1 64 of 89 -56- Solid Waste should accumulate in City to such an extent or in such a manner that the City Manager finds that such accumulation endangers or menaces the public health, safety, or welfare, City shall have the right, upon twenty-four (24) hours prior written notice to Contractor, during the period of such emergency, to temporarily take possession of any or all equipment and facitities of Contractor previously used in providing Collection, transportation, and disposal of Solid Waste and provide, through its own forces or otherwise, Solid Waste Handling Services which Contractor otherwise would be obligated to provide pursuant to this Agreement. Contractor agrees that in such event it shall fully cooperate with City to affect such a transfer of possession for City's use. 212 Possession of Equipment Contractor agrees, that in the event of circumstances described in Section 21.1 above, City may take temporary possession of and use all of said equipment and facilities without paying Contractor any rental or other charge. Upon Contractor giving City notice that it is able to resume its normal responsibilities under this Agreement City shall either relinquish possession of all of the above mentioned property to Contractor. 21.3 Exclusions from Right to Possession of Egr¡ipment without Co¡npensation Specifically excluded from the circumstances in which City may possess and utilize Contractor's equipment without compensation are circumstances in which Contractor fails or refuses to provide Solid Waste Handling Services hereunder for any reason which is not a force majeure event as defined herein. In such circumstances City's right to utilize and possess Contractor's equipment shall be subject to the provisions of the above Section 20. SECTION 22. PRIVACY Contractor shall strictly observe and protect the privacy rights of Customers. Information identifying individual Customers or the composition or contents of a Customer's Solid Waste stream, or any of the Billing information pertaining to any Customers, shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, ordinance, or regulation of a govemmental agency having jurisdiction, or upon valid authoùzation of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characlerization studies or waste audits which may be required by AB 939 or this Agreement. Contractor shall not market or distribute, outside the normal course of its business, mailing lists with the names and addresses of Customers. The rights afforded Customers pursuant to this Section shall be in addition to any other privacy right afforded Customers pursuant to federal or state law. SECTION 23. REPORTS AND ADVERSE INFORMATION The parties acknowledge that City will require reporting at various intervals by which information important to City can be complied and analyzed. Throughout the Term the parties agree to work together to address City's needs with respect to the information to be contained in Attachment 1 65 of 89 -57- reports prepared by Contractor. The following is intended as a starting point in order to have esiablished an objective baseiine for reporting, but the frequency and content of the reports called out below may be changed by agrecment of the parties; provided any such change is approved by the City Manager in writing. Records related to performance of this Agreement rttätt U. maintained by Contractor in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. The format of each report shall be approved by City. Contractor agrees to submit all reports in an electronic format approved by the City, compatible with City's software/computers at no additional charge. Monthly reports shall be submitted within forty-five (45) calendar days after the end of the report month. Quarterly reports shall be submitted within forty-five (45) calendar days after the end of the calendar quafter 23.1 Monthly Reports At a minimum, Contractor shall report the following to City on a monthly basis: Solid Waste Collected by Contractor for each month, sorted by type of Solid Waste in tons broken down at a level acceptable to City (which at a minimum shall include: refuse, Green Waste, e-waste and Universal Waste, types of Recyclables including PET, HDPE, mixed plastics, aluminum, cardboard, mixed paper), as well as by Customer type (i,e., single family-curbside, multi-family, conìmercial, roll-off, etc.); the facilities where all Solid Waste Collected was processed or disposed; warning notices issued for contaminated Recycle and Green Waste Containers; and a narrative summary of problems encountered (including scavenging) and actions taken with recommendations for City, as appropriate. 23.2 Ouqgerly Reports At a minimum, Contractor shall report the following to City on a quarterly basis: the information required in the monthly reports; the complaint summary for the quarter summarized by nature of complaints; copies of promotional and public education materials sent during the quarter; description of Contractor outreach activities conducted the previous quarter; and such other information or reports that the City may reasonably request or require. Contractor shall, upon demand by City, provide true and accurate copies of landfill tipping receipts, records showing delivery at processing or reuse facilities, and similar such documents in order to enable City to verify Contractor's quarterly reports, 23.3 Annual Reports Each year during the Term of this Agreement and within sixty (60) days following the end of the Term, Contractor shall submit a written annual report, at its sole expense, in a form approved by City, which includes, but is not limited to, the following information: (A) A summary of the previous year's activities including, but not limited to, services begun or discontinued during the reporting year, and the number of Customers broken down on a monthly basis; (B) A summary of the total tons of Solid Waste Collected in City in the preceding year as well as a summary of the total torurage diverted from the State's landfill systems during that time frame; Attachment 1 66 of 89 -58- (C) Information and reports required by City to meet its reporting obligations imposed by AB 939 and the regulations implementing AB 939, in a form and content approved by the City Manager; (D) A revenuc statement, certified by the chief financial officer of Contractor, setting forth Franchise Fee payments and Public Education Fund deposits, and the basis for the calculation thereof, including specifically a breakdown of sources of revenue included in Gross Receipts and the amount of revenue derived from each such source comprising Gross Receipts as well as the number (as applicable) of Customers and Bins used to calculate Public Education Fund deposit amounts; (E) A list of stockholders or other equity investors holding five percent (5%) or more of the interest in Contractor; (F) A summary of the results from the a¡nual residential audit conducted in accordance with Section 28,3 .2.; (G) A list that contains the total number of Carts at each service address as required by Scction 8.1.8(F); and (H) Any other information related to Contractor's performance of this Agreement as may be requested by City. 23.4 Adverselnformation (A) Contractor shall provide City two copies of all reports and other material adversely affecting this Agreement submitted by Contractor to the United States Environmental l'}rotection Agency, CalRecycle, the California Regional Water Quality Control Board, and any other federal, state, regional, or local regulatory agency, Copies shall be submitted to City simultaneously with Contractor's filing of such matters with said agencies. Contractor's routine correspondence to said agencies need not be automatically submitted to City, but shall be made available to City upon written request. (B) Contractor shall submit to City copies of all pleadings, applications, notifications, communications, and documents of any kind submitted by Contractor to, as well as copies of all decisions, correspondence, and actions by, any federal, state, and local courts, regulatory agencies, and othcr government bodies relating in any manner to Contractor's performance of services pursuant to this Agreement. To the degree authorized by law, any confidential data exempt from public disclosure shall be retained in confidence by City and its authorized agents and shall not be made available for public inspection. (C) Contractor shall submit to City such other information or reports in such forms and at such times as City may reasonably request or require. (D) All reports and records required under this or any other Section hereof shall be furnished at the sole expense of Contractor. Attachment 1 67 of 89 -59- 23.5 Disaster Plan Within 60 days from a request by City, Contractor shall prepare a draft disaster plan that sets forth procedures for maintaining regular Collection service and Collection of debris following a major natural disaster such as an earthquake, fire or other similar emergency event (not including labor disputes). The disaster plan shall address arrangements to provide needed vehicles and personnel, priorities for cleanup at critical facilities, and procedures for reimbursement for costs, describe communication plans, list key contact persons, and provide maps showing proposed sites for stockpiling of disaster debris that cannot be transported to the landfill. Contractor shall coordinate the plan with City's emergency service teams. The draft plan shall be presented to the City Manager for consideration and approval. The final plan shall be distributed to those employees of Contractor and City who would have a role in implementing it in the event of a disaster. In addition, at City's request, Contractor shall assist the City with such emergency Collection service and Collection of debris following a major natural disaster such as an earthquake, fire or other similar emergency event, In the event of such a request, Contractor and City shall meet and confer in good faith to determine a fair and reasonable rate to compensate Contractor for providing such assistance, 23,6 Failure to Repo¡t The refusal of Contractor to file any of the repofts required, or the inclusion of any materially false or misleading statement or representation made knowingly by Contractor in such report, shall be deemed a material breach of this Agreement and shall subject Contractor to all remedies, legal or equitable, which are available to City under this Agreement or otherwise. SECTION 24. COMPENSATION 24.1 Contractor Rates Contractor shall provide services to Customers pursuant to this Agreement at rates it sets, charges to, and collects from Customers, which rates shall not exceed those set forth in the attached Exhibit A, which sets out the maximum rates that may be charged by Contractor, as such maximum rates may be adjusted from time to time pursuant to the terms hereof. The maximum rates set forth in Exhibit A are inclusive of all services to be provided, including transportation, disposal, and Container costs, and no other charges shall be imposed by Contractor for such services. 24,2 Resolution of Disputes Reearding Rate Adjustments Any dispute regarding an adjustment to the maximum rates Contractor may charge, or the computation thereof, shall be decided by the City Manager. The rates in eflect at the time such dispute is submitted to the City Manager shall remain in effect pending resolution of such dispute. The effective date of the adjusted maximum rate following the resolution of any such dispute, whether retroactive or prospective, shall be determined by the City Manager. Attachment 1 68 of 89 60- 24.3 Arrnual Consumer Price Index Adiustments Commencing on July l, 2014, the maximum rates as set forth in Exhibit A shall be adjusted, and such rates shall be adjusted annually thereafter on each subsequent July lst during the Term hereof (the "Adjustment Dates"), by multiplying each rate by a percentage equal to the change in the Consumer Price Index ("CPI") for All Urban Consumers, CUURA42ISA0 not seasonally adjusted, all items index (CPI-U) - Los Angeles County, Riverside County, Orange County average for the twelve (12) month period ending on the date of December 31 immediately prior to the applicable Adjustment Date. At least forty-five (45) days prior to charging Customers any rate increased due to an increase in the CPI, Contractor shall obtain the City Manager's approval to do so. The City Manager shall approve such a request unless it is determined, based upon substantial evidence, that the requested adjustment to the maximum rate does not meet the requirements as set forth herein. 24.4 Limitations to AnnualCPI Adjustments Notwithstanding anything to the contrary in Section 24.3 above, the maximum annual acljustment occurring pursuant to Section 24.3 shall be limited by the provisions set forth below. 24.4.1 Four Percent l47o) Cap Any maximum rate may not be increased in any given year by more than four percent (4%) without regard to any higher increase which may otherwise be justified by the formula set forth in Section 24,3. 24.4.2 Compliance witlr Agreeme¡rt No increase to the maximum rates shall occur if the City Manager determines that Contractor dicl not fully comply with all terms of this Agreement in the Rate Year preceding the increase, inciuding without limitation, provisions hereof relating to reporting, diversion, and Customer service standards, 24.5 Disqretionary Acljustmen$ Contractor may request an adjustment to the maximum rates set forth in Exhibit A at reasonable times other than as set forth in Section 243 for unusual changes in the cost of providing service under this Agreement. For each request for an adjustment to the maximum rates brought pursuant to this Section Contractor shall prepare a schedule documenting the extraordinary costs, Such request shall be prepared in a form acceptable to City with support for assumptions made by Contractor in preparing the estimate. City shall review Contractor's request and, in the City Council's sole judgment and absolute, unfettered discretion, make the fìnal determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment. City may consider increases or decreases in Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. Contractor may not request an extraordinary increase in the maximum rates as a result of: changes in fees or taxes such as Social Security, disability or income tax; changes in the market value of Recyclables or processing costs for Recyclables or Green Waste; inaccurate estimates by Contractor of its cost of operations; or costs of compliance Attachment 1 69 of 89 -61- with South Coast Air Quality Management District and Air Resource Board rules and standards fbr Collection Vehicles. 24.6 Grants From time to time, federal, state or local agencies including the City may provide to Contractor grants to assist in financing qualified programs provided by Contractor in the City (inoluding, without limitation, grants for diversion programs and related equipment, alternative fuel vehicles and equipment, and Household Hazardous Waste Collection and Disposal). Contractor shall notify City upon receipt of any such grant funds that may be used to fund services provided pursuant to the terms of this Agreement. 'With the exception of grants already received by Contractor as of the Effective Date, and grants for Collection Vehicles, any funds received through grants for services directly benefrting the City are intended to benefit City and its residents and businesses, and in essence are held by Contractor in trust on behalf of City. Accordingly, Contractor agrees that the total amount of compensation it receives from Customers hereunder, may be reduced by the amount of any such grant, unless the grant is used to pay for services in City. The City Council shall determine whether the reduction in Contractor's compensation shall be: (1) passed through to Customers designated by City as a reduction to maximum rates; (2) as an offset to the next increasc to maximum rates requestecl by Contractor; (3) used for purposes of a ne\ / program not considered within the current rate structure; (4) paid to City for use as City directs; or (5) applied in any combination of (1) through (4). SECTION 25, IDENTIF'ICATION OF CONTRACTOR Contractor has agreed to use the name "CR&R Incorporated" and "CR&R Environmental Services" to identify itself to the public as the specific organization that shall provide all services under this Agreement. Unless otherwise approved in writing by City, this name shall be used for all conespondence, Billing statements, directory listings, references, signs, and vehicle and Bin identification. SECTION 26. FLOW CONTROL; COUNTY AGREEMENT (A) City shall have the option to direct and/or approve which Transformation facility, recycling facility, material recovery facility, landfill, or other facility Contractor shall use to retain, recycle, prosess, and dispose of Solid Waste and construction materials generated within the Franchise Area as required to enable City to comply with the County Agreement. Contractor expressly consents to City's ability to direct the location for disposal of Solid Waste hereunder, and waives any and all rights to challenge City's ability to do so, including without limitation any rights under the Commerce Clause of the United States Constitution. (B) Contractor expressly acknowledges its awareness of the County Agreement which has been adopted and entered into by City. Moreover, Contractor acknowledges that it has had an opportunity to review the County Agreement, and is Attachment 1 70 of 89 -62- aware of the provisions thereof that require all Solid Waste Collected in the City Limits to be disposed of in the Orange County landfill system. Contractor further acknowledges that the County of Orange is an intended third party benefrciary of Contractor's obligations relating in any way to the disposal of Solid Waste pursuant to this Agreement and the County Agreement. Contractor hereby adopts as its obligations hereunder such provisions of the County Agreement that require action or inaction by it as City's Solid Waste franchisee. Contractor represents and warrants that it can and will perform its duties in connection with this Agreement in such a manner as to ensure that City does not breach the terms of the County Agreement as a result of Contractor's actions or inactions. (C) Upon the Eff'ective Date of this Agreement, City is deemed to have exercised its flow control option set forth hereinabove as to Solid Vy'aste required to be delivered to the Orange County landfill system pursuant to the County Agreement, by virtue of the fact City has entered the County Agreement; and, further, City is deemed to have exercised such option in a manner consistent with its obligations pursuant to the County Agreement. At any time during the Term of this Agreement the City Manager may notify Contractor in writing that City no longer desires to exercise its flow conûol option hereunder. In the event City so notifies Contractor of its desire to cease exercising its flow control option, Contractor shall have the absolute discretion to utilize any Transformation facility, recycling facility, material recovery facility, landfill, or other facility of its choosing to retain, recycle, process, and dispose of Solid Vy'aste and construction materials generated within the Franchise Area, provided such facility meets all other requirements of this Agreement. SECTION 27. INDEMNIFICATION 27,1 General (A) Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, and agents (collectively the "Indemnities") from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties) arising out of, resulting from, and/or in any way connected with this Agreement including: (1) the negligence or willful misconduct of Contractor, its officers, employees, agents, and/or subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, and/or subcontractors to comply in all respects with the provisions of this Agreement, all Applicable Law (including, without limitation, the Environmental Laws), ordinances and regulations, and/or appiicable permits and licenses; (3) the acts of Contractor, its officers, employees, agents, and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (inoluding, without limitation, the Environmental Laws); and (4) any challenge to the award of, or any provisions of this Agreement (including any claim that the application of any provision hereof violates any provision of the Califomia Constitution). The foregoing indemnity and hold harmless provisions shall apply regardless of whether such Attachment 1 71 ot89 -63 loss, liability, penalty, forfeiture, claim, demand, action, procceding, suit, injury, death or damage is also caused in part by any of Indemnities' negligence, but shall not extend to matters resulting from Indemnities' sole negligence, or willful misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defencl (with attorneys acceptable to City) City, its elected and appointed boards and commissions, officers, employees, and agents against any claims, actions, suits in law or equity or othcr proceedings, whether judicial, quasi-judicial or adrninistrative in nature, arising or resulting from any of the aforementioned events, and to reimburse City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. (B) Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear in and defend City and its elected officials, officers, employees and agents, in any claims or actions by third parties, whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, asserting rights under the Dormant Commerce Clause or any other federal or state laws to provide Collection services in the City' (C) 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. 27.2 Hazardous Substances Indemnification (A) Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically 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: (l) results in any demand, claim, noticc, 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 Contaminant (as defined herein); or Attachment 1 72 of 89 -64 (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 Environmental Laws, including without limitation the Comprehensive Environmental Response, Compensation and Liability Acf, 42 U.S.C. $9601 et seq., the Resource Conservation and Recovery AcT, 42 U.S.C. $6901 et_seq., the Carpenter-Presley-Tanner Hazardous Substances Account Act, California Health & Safety Code Section 25300 et seq., the California Hazardous lüaste Control Laws, California Health and Safety Code Section 25100 et seq., the California Portcr-Cologne Act, Califomia Water Code Section 13000 g!-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 by Contractor of any facility; (3) any Claims based on or arising out of or alleged to be arising out of the markcting, sale, distribution, storage, transportation, disposal, processing or use of any materials recovered by Contractor; and (4) any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied wananty, representation or covenant arising out of or in oomection with this Agreement, (C) The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any AffÌliate of Contractor. (D) For purposes of this Agreement, the term "Hazardous Contaminant" shall mean any "hazardous material," as that term is deflrned under California Health & Safety Code Section 25501(o); any "hazardous substance," as that term is defined herein or under California Health & Safety Code Sections 25281(h), 25501(p), 25501.1 and under T\tle 42, Section 9601(14) of the United States Code; any "hazardous waste," as that term is defined herein and under Title 42, Section 6903(5) of the United States Code and under California Health & Safety Code Section 25501(q); any chemical which the Governor has identified as a chemical known to the State to cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section25249.8; any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos-containing material. The term "Hazardous Contaminant" 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. (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. Attachment 1 73 of 89 -65- SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS 28.1 Maintenance ancl Inspection oLRecords Contractor shall maintain all records relating to the services provided hereunder, including but not limited to Customer lists, Billing records, accounts payable tecords, maps, AB 939 compliance records, records reflecting the number and type of routes and route hours by service category (such as residential, multi-family, commercial, roll-off, and special services), records demonstrating facilities, equipment and personnel used to perform services, records reflecting the number of mixed waste Containers, as well as, if applicable, recycling and Green Waste Containers, in service by frequency of Collection for each Customer group (such as single family, multi-family, commercial, roll-off.¡; records reflecting the number of roll-off box pulls, and such other documents and materials which reasonably relate to Contractor's compliance with the provisions of this Agreement (the "Records"), for the full Tcrm of this Agreement, and an additional period thereafter of not less than three (3) years, or any longer period required by law. City shall have the right, upon five (5) business days advance notice, to inspect the Records. Such Records shall be made available to City at Contractor's regular place of business, but in no event outside the County of Orange. 28,2 CERCLA Defense Records City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Solid Waste Collected in the City was taken for disposal, as well as where it was not taken, to be matters of concern. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfrlled) for not less than fìve (5) years following the termination of this Agreement, and agrees to notify City's Risk Manager, City Clerk and City Attomey before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City. The requirements of this Section shall survive the expiration of the Term of this Agreement. 283 Audits 28.3.1 Examination of Services From time to time, anticipated to be at least once every other year, City may request Contractor to make available any or all of its records related to performance hereunder available to an independent auditor or examiner, to be selected by the City, for auditing and examination purposes (a "Discretionary Audit"). City shall bear the cost of any Discretionary Audit except as otherwise provided herein. Should any Discretionary Audit reveal an underpayment of any Franchise Fee required pursuant to this Agreement, the amount of such underpayment shall become due and payable to City not later than fifteen (15) days after written notice of such underpayment is sent to Contractor by City, complete with any additional late charges as set forth herein, If a Discretionary Audit reveals inaccuracies or inconsistencies in more than five Attachment 1 74 of 89 -66- percent (5%) of all Customer accounts, either with Contractor's operations or Billing systems, or an underpayment of Franchise Fees of more than three percent (3%), Contractor shall bear the entire cost of such Discretionary Audit. 28.3.2 Annual Residential Audit Contractor shall annually complete an audit, at its own expense, of a minimum of ten (10%) percent of Customers at Single Family and Multi-Family Dwelling which utilize Cafts to determine whether and to the extent (1) contamination of recycling Carts is occurring or (2) Recyclable Materials are being deposited into non-designated Carts. This audit shall, at a minimum, consist of Contractor inspecting said Carts and leaving notification tags on the Carts to inform Customers of actions that can be taken to increase source separation. City must approve the notification tags in advance and such tags shall leave a positive message regarding how Customers can increase recycling efforts. Contractor shall also conduct follow up inspections for Premises tagged in previous annual audits. Contractor shall include a report on the results of each annual audit (including results from follow up inspections) in its annual report required pursuant to Section 23.3. SECTION 29. TRANSITION OBLIGATIONS At the end of the Term, or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of services. Contractor's cooperation shall include, but not be limited to, providing route lists, Billing information and other operating records needed to service all Premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief neccssary to enforce this covenant, Contractor shall provide any new Solid Waste enterprise with all keys, security codes and remote controls used to access garages, gates and bin enclosures. Contractor shall be responsible for coordinating transfer immediately after its final Collection activities, so as to not disrupt services, Contractor shall provide City with detailed route sheets containing service names and addresses, Billing names and addresses, monthly rate and service levels (number and size of Containers and pickup days) at least 90 days prior to the transition date, provide an updated list two weeks before the transition, and a final updated list with any changes the day before the transition. Contractor shall provide means of access to the new Solid Waste entcrprise at least one full business day prior to its flirst day of Collection, and within sufficient time so as to not impede in any way the new Solid Waste enterprise from easily servicing all Containers. SECTION 30. GENERAL PROVISIONS 30.1 Force Maieure Contractor shall not be in default under this Agreement in the event that its ability to provide Solid Waste Handling Services or Temporary Services, in compliance with its obligation to do so hereunder, is temporarily interrupted or discontinucd for any of the following reasons: Attachment 1 75 of 89 67- riots, wars, sabotage, civil disturbances, insuneotions, strikes or other labor disturbances lasting 5 days or less, explosion, natural disasters such as floods, earthquakes, landslides, and fires, or "other catastrophic events" which are beyond the reasonable control of Contractor, The term "other catastrophic evsnts" does not include: (i) the financial inability of Contractor to perform; (ii) failure of Contractor to obtain any necessary permits or licenses from other governmental agencies; (iii) the failure to obtain the right, or the loss of the right, to use the facilities of any public utility where such failure is due in substantial part to the acts or omissions of Contractor; or (iv) strikes or other labor disturbances lasting longer than 5 days. 30.2 IndependentContractor Contractor is an independent contractor and not an officer, agent, servant, or employee of City. Contractor is solely responsible for the acts and omissions of its officers, agents, employees, and subcontractors, if any, Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Contractor. Neither Contractor nor its ofhcers, employees, agents, or subcontractors shall obtain any rights to retirement or other benefrts which accrue to City employees. 30.3 PAv"gnent.Damage Contractor shall be responsible for the cost of repair of any extraordinary damage to the public streets located within the City resulting from providing the services required hereunder. 30.4 Property Damage Any physical damage caused by the negligent or willful acts or omissions of employees, agents, or subcontractors of Contractor to private or public property shall be promptly repaired or replaced at Contractor's expense. 30.5 Right of Entry Contractor shall not have the right, until Contractor receives permission from the property owner, to enter or drive on any private street, court, place, easement, or other private property for the purpose of providing Temporary Services and/or Solid Waste Handling Services pursuant to this Agreement. 30.6 Law to Govern: Venue The laws of the State of California shall govern this Agreement. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Orange. 30.7 Amendment This Agreement is intended to carry out City's obligations to comply with the provisions of AB 939 and AB 341, as implemented by regulations of CalRecycle, as they from time to time may be amended. In the event that, after the Effective Dale of this Agreement, AB 939 or AB 341 is amended, or other state or federal laws or regulations are enacted and prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or Attachment 1 76 of 89 -68- suspended as may be necessary to comply with such state or federal laws or regulations. Except as ótherwise expressly stated herein, no other amendment of this Agreement shall be valid unless it in writing and duly executed by the Parties. 30.8 Nl-o-tices All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered or sent by United States certified mail, postage prepaid, retum receipt requested, and addressed as follows: To City: CitY of San Juan CaPistrano Attn: City Manager 32400 Paseo Adelanto San Juan Capistrano, CA92675 To Contractor: CR&R IncorPorated Attn: President P.O. tsox 125 Stanton, CA 90680 Telephone: 877 .728.0446 Telecopier: 7 I4-890-6347 or to such other address as either party may from time to time designate by notice to the other given in accordance with this Section. Notice shall be deemed given on the date served if served personally between the hours of 8:00 a.m, to 5:00 p.m. on any regular business day for City's business offices. If mailed, notice shall be deemed given three (3) business days from the date such notice is deposited in the United States mail in the manner proscribed above. 30.9 Savingi Clause If any non-material provision of this Agreement is for any reason held to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the validity and enforceability of any of the remaining provisions of this Agreement. 30.10 Exhibits Incorporated Exhibits A through B are attached to and incorporated in this Agreement by reference. 30.11 Joint Drafting This Agreement shall be interpreted as if it were drafted jointly by the Parties to the Agreement. 3A.D Attornevs' Fees and Litiqation-Co,sts In the event either party brings any action or proceeding to enforce or interpret the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys' fees and other litigation costs and expenses, including Attachment 1 77 of89 -69- without limitation, expert witness fees, consultant fees and costs. 'Without limiting its scope in any way, this provision is expressly intended to, and shall, apply to fees and costs incurred in any appeal. 30.13 City's Authgrized.:Agelrt Notwithstanding anything contained herein to the contrary, and excepting amendments hereto and such actions set forth herein specifically calling for City Council action or approval, the City Manager is designated as the City's authorized agent to take any action with regard to any matter, or enforce any right, set forth herein requiring action by the City' 30.14 Inteqrated Asreement This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals, and agreements between the Parties, whether written or oral. The Parties acknowledge this document has been executed with the consent and upon the advice of counsel, Each of the Parties acknowledges that no party or agent or attorney of any other party has made any promise, representation, or waranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument. 30.15 $ection l-leadings The section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions. 30.16 Compliance with Law In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all Applicable Law, including the laws and regulations of the United States, the State of California, the provisions of the Municipal Code, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended ISIGNATURES ON FOLLOWING PAGE] Attachment 1 78 of 89 -70- ATTE$T: By: a Morris, APPROVED AS TO FORM: By: A. Patrick Muñoz,Attorney t'City" CITY OF By: "Contractor" CR&R Incorporated UAN CAPISTRANO Sam Allevato, Mayor Attachment 1 79 of 89 -7r- EXHIBIT A MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICBS: ATTACHED Attachment 1 80 of 89 -72- CITY OF SAN JUAN CAPISTRANO EXHIBIT ''A" Maximum Rates for Services Page 1 of B Maximum Rate $15.e5 $17,06 $3.42 $3.42 no charge $3.42 $17.40 $18.44 $4,76 $4.76 no charge $4.76 $1e.06 $1e.eB $6,1 0 $6.1 0 no charge $6.1 0 No Charge $40.00/month $17.58 No Charge $10.56 $36.55 $73.07 $109,62 $146.15 $182.37 $21e.22 Single Family Residential Cart Service (Monthly) 35-gallon caÉs set of 2 (refuse & recycle) set of 3 (refuse, recycle, green waste) each additional refuse carts each additional green waste carts 1st additional recycling cart each additional recycling cart (2nd or above) 64-9allon carts set of 2 (refuse & recycle) set of 3 (refuse, recycle, green waste) each additional refuse carts each additional green waste carts 1st additional recycling cart each additional recycling cart (2nd or above) 96-gallon carts set of 2 (refuse & recycle) set of 3 (refuse, recycle, green waste) each additional refuse carts each additional green waste carts 1st additional recycling cart each additional recycling cart (2nd or above) Walkout service for eligible customers Walkout service for ineligible customers Residential Additional Pick up Single Family Dwelling Bulky ltem On-Call Service For each Bulky ltem - up to four (4) items For each Bulky ltem - commencing with fifth (Sth) item Commercial Mixed Waste Bins: Rate Per Bin (Monthly) 1 x p/wk 2 x p/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Gommerical Mixed Waste Bins: Rate Per Bin (Monthly) 1 x p/wk 2 x plwk 2vd 2vd 2vd 2yd 2vd 2vd 28.54 12.46 3yd 3vd nttacnment$l 81 of 89 CITY OF SAN JUAN CAPISTRANO EXHIBIT ''A'' Maximum Rates for Services Commerical Mixed Waste Bins: Rate Per Bin (Monthly) - Locking 1 x p/wk 3Yd Locking 2 x p/wk 3Yd Locking 3 x p/wk 3Yd Locking 4 x p/wk 3Yd Locking 5 x p/wk 3Yd Locking 6 x p/wk 3Yd Locking Commercial Compactor Mixed Waste Bins: Rate Per Bin (Monthly) 1 x p/wk 3Yd ComPactor 2 x plwk 3Yd ComPactor 3 x p/wk 3Yd ComPactor 4 x p/wk 3Yd ComPactor 5 x p/wk 3Yd ComPactor 6 x p/wk 3Yd ComPactor 3vd 3vd 3vd 3vd p/wk p/wk p/wk p/wk 3x 4x 5x 6x Page 2 of 8 Maximum Rate $289.05 $378.95 $460,63 $540,1 I $140.42 $224.33 $300.70 $390.51 s472.09 $551.53 $238,'14 $431.80 $617.93 $817.45 $1,008.73 $1,197.91 Commercial Mixed Waste Bins: Rate Per Bin (Monthly) 1 x p/wk 2 x p/wk 3 x piwk 4 x plwk 5 x p/wk 6 x p/wk 4vd 4yd 4vd 4vd 4vd 4vd $168.89 $279.50 $380.78 $498,62 $605,50 $710.74 Gommerical Mixed Waste Bins: Rate Per Bin (Monthly) - Locking 1 x p/wk 4Yd Locking 2 x plwk 4Yd Locking 3 x p/wk 4Yd Locking 4 x p/wk 4Yd Locking 5 x p/wk 4yd Locking 6 x p/wk 4Yd Locking Commercial Compactor Mixed Waste Bins: Rate Per Bin (Monthly) 1 x p/wk 4Yd ComPactor 2 x p/wk 4yd ComPactor 3 x p/wk 4Yd ComPactor 4 x p/wk 4Yd ComPactor 5 x p/wk 4Yd ComPactor 6 x p/wk 4Yd ComPactor Commercial Refuse Bins: Rate Per Bin (Monthly) 1 x p/wk $180.73 $291,19 $392.34 $510.04 $616.76 $721,8e $315.07 $571.78 $819.26 $1,083.20 $1,335.00 $1,587.62 Attachment $64.76 82 of 89 2yd 2 x plwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk CITY OF SAN JUAN CAPISTRANO EXHIBIT ''4" Maximum Rates for Services Page 3 of I Maximum Rate $100,39 $131.33 $170.58 $204,65 $237.27 $99.02 $153.50 $200.45 $260.82 $312.97 $363.01 $1 10.94 $165.38 $212.27 s272.59 $324.70 $374.68 $149.58 $254.62 $352.13 $463.06 $565.75 $666.37 $129.51 $200.77 $262.66 $341 .15 $409,28 s474.53 $141.42 $212.62 $274.43 $352.85 $420.91 $486.11 Attachment 1 83 of 89 2yd 2vd 2vd 2vd 2vd 3yd 3vd 3vd 3yd 3vd 3vd Gommercial Refuse Bins: Rate Per Bin (Monthly) 1 x p/wk 2 x plwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Commercial Refuse Bins: Rate Per Bin (Monthly) - Locking 1 x p/wk 3yd Locking 2 x p/wk 3yd Locking 3 x p/wk 3yd Locking 4 x p/wk 3yd Locking 5 x p/wk 3yd Locking 6 x p/wk 3yd Locking Gommercial Compactor Refuse Waste Bins: Rate Per Bin (Monthly) 1x 2x 3x 4x 5x 6x p/wk 3yd Compactor p/wk p/wk p/wk p/wk p/wk 3yd Compactor 3yd Compactor 3yd Compactor 3yd Compactor 3yd Compactor 4vd 4vd 4vd 4vd 4vd 4vd Commercial Refuse Bins: Rate Per Bin (Monthly) 1 x p/wk 2 x plwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Commercial Refuse Bins: Rate Per Bin (Monthly) - Locking 1 x p/wk 4yd Locking 2 x p/wk 4yd Locking 3 x p/wk 4yd Locking 4 x plwk 4yd Locking 5 x p/wk 4yd Locking 6 x p/wk 4yd Locking CITY OF SAN JUAN CAPISTRANO EXHIBIT "A" Maximum Rates for Services Commercial Gompactor Refuse Waste Bins: Rate Per Bin (Monthly) 1 x p/wk 4Yd ComPactor 2 x p/wk 4Yd ComPactor 3 x p/wk 4Yd ComPactor 4 x p/wk 4Yd ComPactor 5 x p/wk 4Yd ComPactor 6 x p/wk 4Yd ComPactor Commercial Recycling Bins: Rate Per Bin (Monthly) 1 x p/wk 2 x plwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Contamination charge Page 4 of B Maximum Rate $196.93 $335.59 $464.90 $610,79 $746.34 $878,9e 2vd 2vd 2vd 2:yd 2yd 2vd $40.13 $64.81 $9s.98 $128.39 $160.48 $192.58 $46.46 $61.72 $98.76 $1 48.1 4 $197.52 $246.90 $2e6,28 $46,46 Commercial Recycling Bins: Rate Per Bin (Monthly) 1 x p/wk 2 x plwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Contamination charge Commercial Recycling Bins: Rate Per Bin (Monthly) 1 x p/wk 2 x plwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Contamination charge 3vd 3yd 3yd 3vd 3vd 3vd Commercial Recycling Bins: Rate Per Bin (Monthly)'Locking '1 x p/wk 3Yd Locking 2 x plwk 3Yd Locking 3 x p/wk 3Yd Locking 4 x p/wk 3Yd Locking 5 x p/wk 3Yd Locking 6 x p/wk 3Yd Locking Contamination charge $73,70 $1 10.75 $1 60.1 2 $209.50 $258.88 $308.26 $46.46 $80.25 $129.61 $191 .95 $256.77 $320.96 $385.16 $46.46 92.21 41.59 4vd 4yd 4vd 4vd 4vd 4vd Commercial Recycling Bins: Rate Per Bin (Monthly)'Locking 1 x p/wk 4Yd Locking 2 x plwk 4Yd Locking Attachmençf 84 of 89 Gommercial Recycling/Refuse Split Bins: Rate Per Bin (Monthly) 1 x plwk 2yd each 2 x plwk 2yd each 3 x p/wk 2yd each 4 x p/wk 2yd each 5 x p/wk 2yd each 6 x p/wk 2yd each Contamination charge Bin Overflow Gharge Per Occurance Bin Extra Dumps Locking Bins lnstallation 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Contamination charge Commercial Recycling Garts (must have commercial refuse bin to qualify for this rate) (Monthly) I x p/wk 2 x plwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Contamination charge Commercial Cart Service (Monthly) 64-gallon carts set of 2 (refuse & recycle) each additional refuse cart each additional recycling cart Contamination charge CITY OF SAN JUAN CAPISTRANO EXHIBIT "A" Maximum Rates for Services Page 5 of I Maximum Rate $203.92 $268.75 $332.95 $397.15 $46.46 $104.89 $165.20 $227.31 $298.97 $365.13 $429.8s $46.46 $46.46 $46.46 $27.23 $18.51 $37,04 $55.55 $74.06 $92.5s $111.11 $2o.oo $24.35 $14.11 $8'58 $20.00 Attachment 1 85 of 89 4yd Locking 4yd Locking 4yd Locking 4yd Locking 64-9al or 96-9al 64-gal or 96-gal 64-9al or 96-gal 64-9al or 96-9al 64-gal or 96-gal 64-9al or 96-gal CITY OF SAN JUAN CAPISTRANO EXHIBIT "A" Maximum Rates for Services 96-9allon cafts set of 2 (refuse & recycle) each additional refuse cart each additional recycling caft Contamination charge Food Waste 64-gallon carts (Per cart/per day of service, up to 3 days a week) Gommercial Rolloff Boxes Refuse Rates (rates are per pull) Drop'off box Compactor On-Call DOB (up to 10 tons) On-Call Lowboy (up to '10 tons) Ton over maximum (per ton over 10 ton max) Clean-up Bin Daily Clean-up Bin Weekly Commercial Rolloff Boxes Mixed Waste Rates (rates are per pull) On-Call DOB (up to 10 tons) On-Call Lowboy (up to 10 tons) Ton over maximum (per ton over 10 ton max) Clean-up Bin Weekly Temporary Seruice 3 yd or 4 yd bin lor 7 day period (rental) 3 yd or 4 yd bin after 7 days (rental) 3 yd or 4 yd bin trip charge 3 yd or 4 yd bin relocation 3 yd or 4 yd bin ovenveight fee Rolloff for 7 day period (rental) Rollotf after 7 days (rental) Page 6 of 8 Maximum Rate 927,46 $16.55 $8.81 $20.00 $18.51 179.37 plus actual landfill fee or processing fee 192.71 plus actual landfill fee or processing fee $432.71 $512.75 $32.05 $53.54 $68.81 $648.05 $776.45 $54.07 $86.48 no charge $5.45/daY $54.46 $54.46 $70.81 no charge Attachn@,111.89/day 86 of 89 Rollotf trip charge Rolloff trip relocation Rolloff overweight fee Manure Bins (Monthly) 1 x p/wk 2 x plwk 3 x p/wk 4 x p/wk 5 x piwk 6 x p/wk Manure Carts (Monthly) 1 x p/wk 2 x plwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Additional Steam Cleaning Bins Rolloff Box' lowboy and DOB Rolloff Box - compactors Commercial Bulky ltem Service 1st item each additional item from same visit MISCELLANEOUS FEES Residential Restart Fee Curbside Household Hazardous Waste (per collection) Steam Cleaning Enclosures (per hour) Redelivery Charges Special Event Trash boxes Special Event Recycle boxes Special Event box liners (Case) NSF - Returned Check CITY OF SAN JUAN CAPISTRANO EXHIBIT "4" Maximum Rates for Services Page 7 of I Maximum Rate $81.71 $87.15 $450,00 $136.40 $199.s4 $262.30 $325,26 $388.25 $4s1.22 $6.10 $12.20 $18.30 $24.40 $30.50 $36.60 $60.00 $150.00 $87.1 5 $49.02 16.34 $17.43 $75.00 $87,15 $55.00 $7.00 $7.00 $25.00 Attachment 125'oo 87 of 89 1 1 I 1 I .Svd .5yd .5vd .5vd .5vd .5vd1 96-gal 96-gal 96-gal 96-9al 96-9at 96-9al CITY OF SAN JUAN CAPISTRANO EXHIBIT "A'' Maximum Rates for Services Page I of B Maximum Rate $1.50 $25.00 $163.40 $82.1 s $25.00 $s0.00 $75.00 Days Refund Fee Commercial Bin Exchange in excess of (1) per year Commercial Bin Damage Charge Emergency Collection, hourly rate for (1) crew and (1) vehicle Roll out service 25'- 50' Roll out service 51'- 75' Roll out service 76'- 100' Late Fees (1.5o/o of balance) (Monthly) Residential Commercial Temporary Service Minimum Balance $15.00 $15.00 $15.00 uentDeliq 90 60 60 Attachment 1 88 of 89 a a a a EXHIBIT B CONTAINER/BIN SPECIFICATIONS Contractor may use the Containers approved for use pursuant to the Prior Agreement. All Containers utilized by Contractor shall meet the standards of the industry and shall perform to the reasonable satisfaction of the City Manager in order to be utilized in City, Container sizes specifìed within this Agreement may vary by manufacturer type and specifications up Io I0o/o more or less in volume than that identified. Each Mixed Waste Cart utilized by Contractor shall be labeled on the inside in English and Spanish and with graphics so as to: (1) explain/depict the items for which it is designated to Collect, and (2) identify the name of Contractor and Contractor's phone number for service related issues, including complaints. In addition, each such Cart shall include information, in a format acceptable to City (such as hot stamping or stickers), regarding Contractor's Bulky Item service, and a phone number that Customers can call to access such service. Any Cart distributed by Contractor in City after the Effective Date shall be newly manufactured and have never previously been used for the Collection of Solid Waste; excepting that Carts which have been refurbished such that they are "like new" may be used so long as their condition is satisfactory as determined by the City Manager. All Carts distributed pursuant to this Agreement shall have an identifying serial number hot stamped into the Cart body, or otherwise have an individual identification demarcation affixed to the Cart in a manner acceptable to the City Manager. Upon request of any Customer, Contractor shall provide Bins with lids that close securely and which are capable of being locked at rates that do not exceed those set forth in Exhibit A. Attachment 1 89 of 89 a RESOLUTION NO. 20-02-04-XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING THE AMENDED AND RESTATED AGREEMENT FOR SOLID WASTE HANDLING SERVICES BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND CR&R INCORPORATED AND AUTHORIZING THE MAYOR TO EXECUTE THE AMENDED AND RESTATED AGREEMENT FOR SOLID WASTE HANDLING SERVICES WHEREAS, on December 17, 1996, the City of San Juan Capistrano ("City") and Solag Disposal entered into that certain agreement for Solid Waste Handling Services (the "Agreement"); and WHEREAS, on February 15, 2000, the City approved the transfer and assignment of the Agreement to CR&R lncorporated (CR&R); and WHEREAS, the Agreement between CR&R lncorporated and the City has been amended from time to time; and WHEREAS, the current Agreement between CR&R lncorporated and the City will expire June 30, 2020; and WHEREAS, food waste has significant impacts on the environment, the economy, and on food insecurity; and WHEREAS, the State of California has enacted AB 1826 legislation establishing mandatory standards for commercialorganicwaste recycling and edible food recovery; and WHEREAS, the State of California has enacted AB 1594 legislation excluding green waste disposed at landfills to be counted as landfill diversion recyclable credits; and WHEREAS, the State of California has enacted SB 1383 legislation applicable to all residentialand commercial properties thatestablishes methane emissions reduction targets resulting from the decomposition of organic waste in landfills; and WHEREAS, SB 1383 mandated organic waste reduction and edible food recovery targets and enforcement provisions include penalties for noncompliance; and WHEREAS, the City Councildesires to include and expand organicwaste and edible food regulatory compliance measures into franchise solid waste handling services; and WHEREAS, the City Council desires to update and combine the Agreement, and related amendments, into a new amended and restated agreement ("Amended and Restated Agreement") which will supersede the City's current Agreement dated February 18,2014, and related amendments, with CR&R lncorporated; and WHEREAS, San Juan Capistrano Municipal Code Section 6-3.04 and Public Resources Code Sections 50059 and 49300 permit the City Council to contract for solid waste collection services with orwithout bidding and subjectto the terms and conditions set forth by City ordinance or resolution; and ATTACHMENT 2 NOW, THEREFORE, BE lT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby declare as follows: 1. The above recitals are true and correct and incorporated into this Resolution by reference. 2. The City Council hereby agrees to enter into the Amended and Restated Agreement with CR&R lncorporated, subject to the terms set forth in this Resolution and the Amended and Restated Agreement, which is attached hereto as Exhibit "A" and incorporated herein by this reference. 3. The City Council hereby authorizes the Mayor to execute the Amended and Restated Agreement on behalf of the City. PASSED, APPROVED, AND ADOPTED this 4th day of February 2020 TROY A. BOURNE, MAYOR ATTEST MARIA MORRIS, CIry CLERK 2 Final Draft January 29,2020 AMENDED AND RBSTATED AGREEMENT BETWEEN City OF SAN JUAN CAPISTRANO AND CR&R INCORPORATED FOR SOLID WASTE HANDLING SERVICES EFFECTIVE July 1,2020 Page 1 of110 EXHIBIT A Final Draft January 29,2020 TABLE OF CONTENTS SECTION SECTION 1. RECITALS SECTION 2. DEFINITIONS... SECTION 3. GRANT OF EXCLUSIVE FRANCHISE. SECTION 4. ENFORCEMENT OF EXCLUSIVITY ... SECTION 5. ACCEPTANCE; WAIVER SECTION 6. TERM SECTION 7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT SECTION 8. SOLID V/ASTE HANDLING SERVICES PROVIDED BY CONTRACTOR SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE HANDLING SERVICE COLLECTION VEHICLES ............... SECTION IO. CONTRACTOR'S SOLID WASTE HANDLING SERVICE PERSONNEL SECTION 1 1. CONTRACTOR'S CONSIDERATION SECTION 12. CHARGE FOR LATE P4YMENTS................... SECTION 13. CONTRACTOR'S BILLING SERVICES AND SYSTEMS......... SECTION 1 4. FAITHFUL PERFORMANCE................. SECTION 1 5. INSURANCE COVERAGE .................... SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND LIMITATIONS ... SECTION 17. REVIEW OF SERVICES AND PERFORMANCE................. SECTION 18. CITY,S REMEDIES; DEFAULT AND TERMINATION SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING..... SECTION 20. CITY'S ADDITIONAL REMEDIES ..... SECTION 2I. RIGHTS OF CITY TO PERFORM DURING EMERGENCY ........ PAGE 5 5 15 .16 ..16 ...17 14 t7 52 56 57 59 42 ..50 62 68 ....61 67 Page2 of 110 ..69 Final Draft January 29,2020 SECTION 22. PRIVACY...... SECTION 23. REPORTS AND ADVERSE INFORMATION.... SECTION 24. COMPENSATION SECTION 25. IDENTIFICATION OF CONTRACTOR SECTION 26. FLOW CONTROL; COUNTY AGREEMENT............... SECTION 27. INDEMNIFICATION.... SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS SECTION 29. TRANSITION OBLIGATIONS........ SECTION 30. GENERAL PROVISIONS EXHIBIT A. MAXIMUM RATE SCHEUDLE FOR SOLID WASTE HANDLING SERVICES.. EXHIBIT B. EXHIBIT C. EXHIBIT D. EXHIBIT E. EXHIBIT F. EXHIBIT G. EXHIBIT H. EXHIBIT I. LIST OF CITY BUILDINGS AND FACILITIES. 69 70 ...74 ,,'76 ...16 ...77 ...80 ...81 ...8 I ..........100 ...........101 ............103 104 110 86 94 94EXHIBIT C LIST OF SPECIAL EVENTS............. LIST OF CONTRACTOR' S FACILITIES ............... LIST OF SUBCONTRACTORS SOURCE SEPARATION PROGRAM IMPLEMENTATION PLAN SUSTAINABILITY AND DIVERSION PLAN COMMUNITY OUTREACH AND EDUCATION PLAN.. CONTAINER/BIN SPECIFICATIONS... ...96 Page3ofl10 Final Draft January 29,2020 AGREEMENT This Agreement ("Agreement") is entered into to be effective as of the first day of July 2020, by and between the City of San Juan Capistrano ("City") and CR&R Incorporated, a California corporation ("Contractor") (collectively, the "Parties") to provide an exclusive franchise for Solid Waste Handling Services within the City. RECITALS: A. The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939"), has declared that it is in the public interest to authorize and require local agencies to make adequate provision for the disposal of all Solid Waste within their j urisdictions. B. Pursuant to Public Resources Code section 40059(a)(1), the City Council of the City has determined that the public health, safety, and welfare require that an exclusive franchise agreement be awarded to a qualified Solid Waste enterprise for Solid Waste Handling Services within the City Limits. C. City and Contractor are mindful of the provisions of the laws governing the safe Collection, transport, recycling, and disposal of Solid Waste, including AB 939, AB 341, AB 1826, AB 1594, SB 1383, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to their respective roles, and to memorialize that by entering into this Agreement, City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, who is "arranging for" the Collection, transport for disposal, composting, and recycling of municipal Solid Waste in the City which may containHazardous Substances. City and Contractor understand and agree that it is Contractor, and not City, who will arrange to Collect Solid Waste, that City has not, and, by this Agreement does not, instruct Contractor on its Collection methods, nor supervise the Collection process, nor do the Parties intend to place title to such Solid Waste in City, but rather intend that whatever, if any, title in and to such Solid Waste that otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor, and further that if Contractor gains title to such Solid Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. By entering this Agreement City and Contractor further desire to confirm that Contractor has agreed to indemniff the City in connection with any claims relating to the inadvertent or intentional Collection, transportation andlor disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. E. Contractor has agreed, as part of this Agreement, and for the necessary consideration as shall be adjusted from time to time, to provide such services as are necessary or desirable to ensure City complies with the requirements of AB 939, AB 341, AB 1826, SB 1383 and Public Resources Code section 40000, et seq. F. Contractor and City previously entered an agreement dated February 18, 2014, (the "Prior Agreement"). This Agreement is intended to restate the various provisions of the Prior Page 4 of 110 Final Draft January 29,2020 Agreement, and further to amend the Prior Agreement in various respects including specifically, and accordingly it shall supersede and replace the Prior Agreement. COVENANTS: Based upon the foregoing Recitals and for good and valuable consideration, the receipt and suffrciency of which is acknowledged by each of the Parties, City and Contractor hereby agree as follows: SECTION 1. RECITALS The Parties acknowledge the above recitals are true and correct and incorporate them herein as if they were fully restated. SECTION 2. DEFINITIONS 'Whenever any term used in this Agreement has been defined by the California Public Resources Code, the definition of such term set forth therein shall apply unless the term is otherwise defined in this Agreement. 2.t AB 341 "AB 341" shall mean Assembly Bill 341 from the 20Il-2012 Regular Session of the Califomia Legislature (Chapter 476, Statutes 2011). 2.2 AB 939 "AB 939" shall mean the California Integrated Waste Management Act of 1989, currently codified as Califomia Public Resources Code section 40000 et seq., as it may be amended from time to time. 2.3 AB 1594. "AB 1594" shall mean Assembly Bill No. 1594 from the2013-2014 Regular Session of the Califomia Legislature (Chapter 719, Statutes 2014). 2.4 AB 1826 "AB 1826" shall mean Assembly Bill No. 1826 from the20l3-2014 Regular Session of the Califomia Legislature (Chapter 727 , Statutes 2014). 2.5 Affiliate "Affiliate" means a business in which Contractor owns a direct or indirect ownership interest, a business (including corporations, limited and general partnerships and sole proprietorships) which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or Page5of110 Final Draft January 29,2020 indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(aX2XC) and in Section 318(a)(3)(C) thereof, and (ii) Section 318(aX5XC) shall be disregarded. For pu{poses of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded, and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. 2.6 Animal Waste "Animal Waste" shall mean animal carcasses, dead animals, and/or parts or portions of dead animals. Animal Waste shall not include manure. 2.7 Applicable Law "Applicable Law" shall mean all federal, state, county, and local laws, regulations, rules, orders, judgments, decrees, permits, approvals, or other requirements of any governmental agency having jurisdiction over an aspect of this Agreement that are in force on the Effective Date, and as may be enacted, issued or amended thereafter, including without limitation, City's Municipal Code, AB 939, AB 1826, AB 1594, SB 1383 and AB 341. 2.8 Billings "Billings" or "Billing" or "Bill" means the statements of charges provided to Customers for services rendered by Contractor pursuant to the terms of this Agreement. 2.9 Bins "Bins" shall mean a metal or plastic Container, including dumpsters, compactors, and any similar such devices with a capacity of under ten (10) cubic yards. 2.10 Bulky Items "Bulky ltems" means Solid Waste that cannot and/or would not typically be accommodated within a Cart including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators with and without Freon, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); residential wastes (including wood waste, tree branches, scrap wood, in the aggregate not exceeding one cubic yard per Collection); and clothing. For purposes of this Agreement, and notwithstanding any provision hereof to the contrary, Bulky Items shall specifically include items commonly known in the waste industry as "brown goods" and "e-waste". Bulky Items do not include Special Wastes, car bodies, car parts, tires, Construction and Demolition Debris or (with the exception of appliances/white goods described above) items that cannot reasonably be moved with equipment of the type which, pursuant to industry standards, would normally be carried in a truck Collecting Bulky Items. In the event a question arises as to whether a specific item, or category of items, meets the definition of Bulky ltems, the City Page6of110 Final Draft January 29,2020 Manager shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties. 2.ll Cart "Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi-automated process, as opposed to a manual process of lifting and dumping. 2.12 Ç{y "City" shall mean the City of San Juan Capistrano, a municipal corporation, located in Orange County, Califomia. 2.13 Cit)¡ Council "City Council" shall mean the City Council of City. 2.14 City Limits "City Limits" shall mean the territorial boundaries of the City together with all amendments and changes thereto, which boundaries are depicted on maps, incorporated herein by reference, that are kept on file in the office of the City Clerk of the City of San Juan Capistrano, and which are from time to time amended to reflect changes. 2.15 City Manager "City Manager" shall mean the City Manager of the City of San Juan Capistrano or his or her designee. 2.16 Co llection "Collect" or "Collection" shall mean to take physical possession of, transport, and remove Solid Waste from a Premises. 2.17 ComrhercialPremises "Commercial Premises" means Premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoningregulatio4s and are not the primary use of the property. Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and motels are operated and upon which Multi-Family Dwellings exist shall be deemed to be Commercial Premises; and Premises upon which mobile home parks exist shall be deemed to be Residential Premises and can be serviced with residential Carts or commercial Bins. Page7ofl10 Final Draft January 29,2020 2.18 Construction and Demolition Debris "Construction and Demolition Debris" shall mean used or discarded materials resulting from construction, remodeling , repair, or demolition operations for any type of structure. 2.19 Container "Container" means any and all types of Solid Waste receptacles, including Carts, Bins, Split Bins, and Roll off Boxes. 2.20 Contractor "Contractor" shall mean CR&R Incorporated, the entity granted the franchise pursuant to this Agreement, or any party permitted pursuant to the terms hereof permitted to become the successor or assignee thereof. 2.21 County Aereement "County Agreement" shall mean that certain waste disposal agreement entered between various Orange County cities, including specifically the City of San Juan Capistrano, and the County of Orange relating to the use of County landfills for the disposal of Refuse Collected in such cities, and which is on file in the offîce of City's City Clerk, as the same may be amended from time to time. 2.22 Customer "Customer" or "Customers" shall mean any person receiving Solid Waste Collection services from Contractor within the Franchise Area. 2.23 Dsy "Day" or o'Days" shall mean calendar days unless otherwise specified. 2.24 Unit "Dwelling Unit" shall mean one or more rooms designed for occupancy by one person, group or family for living and sleeping purposes and containing kitchen facilities or an area designed for the preparation of food for use solely by that person, group or family. 2.25 Effective Date "Effective Date" shall mean July 1, 2020. 2.26 Electronic Waste (E-Waste) "Electronic 'Waste" or "E-Waste" means discarded electronics equipment such as cell phones, computers, monitors, televisions, and other items containing cathode ray tubes. Page8ofll0 Final Draft January 29,2020 2.27 EnvironmentalLaws "Environmental Laws" means all federal and state statutes, county, local and City ordinances conceming public health, safety and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC $9601 et seq.; the Resource Conservation and Recovery Act, 42 USC $6901 et seq.; the Federal Clean Water Act, 33 USC $1251 et seq.; the Toxic Substances Control Act, 15 USC $2601 et seq.; the Occupational Safety and Health Act,29 USC $651 et seq.; the Califomia Hazardous Waste Control Act, California Health and Safety Code $25100 et seq.; the Carpenter- Presley-Tanner Hazardous Substance Account Act, California Health and Safety Code $25300 et seq.; the Porter-Cologne Water Quality Control Act, California Water Code $13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code $25249.5 et seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 2.28 Food Waste "Food Waste" shall mean those discarded materials that will decompose and/or putrefy including: (i) all kitchen and table food waste; (ii) animal or vegetable waste that is generated during or results from the storage, preparation, cooking or handling of food stuffs; (iiÐ fruit waste, grain waste, dairy waste, meat, and fish waste; (iv) vegetable trimmings, houseplant trimmings, food soiled paper, and other compostable organic waste common to the occupancy of Residential Premises or Commercial Premises. Food Waste is a subset of Organic Vy'aste. 2.29 Franchise Area "Franchise Area" shall mean all Premises within the City Limits, including Premises which may be annexed and thereby added to the City Limits following the Effective Date. 2.30 Franchise Fee "Franchise Fee" shall mean the franchise fee set forth and more fully defined in Section 11 hereof. 2.31 Green Waste "Green Waste" means tree trimmings, grass cuttings, dead plants, leaves, branches and dead trees (not more than six (6) inches in diameter or 48 inches in length) and similar organic materials. 2.32 Gross Receipts "Gross Receipts" shall mean and include all monies, fees, charges, consideration, and revenue received, charged or imputed to Contractor and any Affiliate of Contractor, in connection with, arising from, or in any way attributable to the Solid Waste Handling Services carried out by or on behalf of Contractor pursuant to this Agreement. Gross Receipts includes, without limitation, monthly Customer charges for Collection of Solid Waste, without subtracting Franchise Fees, fees imposed and collected pursuant to this Agreement, sums collected in connection with Temporary Page9 of 110 Final Draft January 29,2020 Services, revenue received by Contractor attributable to landfill, material processing and composting tipping fees, and transportation charges. Gross Receipts does not include revenue from administrative charges imposed by the City for City cost where collected by Contractor, the sale of Recyclable Material, Green Waste, Food Waste, and other material which is diverted from disposal or the receipt of governmental funding. 2.33 HazardousSubstance "Hazardous Substance" shall mean wastes other than Solid Waste that are any of the following: (a) any substances defined, regulated or listed (directly or by reference) as "Hazardous Substances," "hazafdous materials," "Hazardous Wastes," "toxic waste," "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 USC $9601 et seq.; (ii) the Hazardous Materials Transportation Act, 49 USC $5101, et seq.; (iii) the Resource Conservation and Recovery Act,42 USC $6901 et seq.; (iv) the Clean Water Act,33 USC $1251 et seq.; (v) California Health and Safety Code $$25115-25177,25249.8, 25281, and25316; (vi) the Clean Air Act, 42USC $7401 et seq.t and (vii) Califomia Water Code $13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local laws or regulations, including any of the Environmental Laws, currently existing or hereinafter enacted, including, without limitation, füable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-products. 2.34 Hazardous Waste "Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code $25110.02, $25115, and $25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Ãct (42 USC $6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. 2.35 Household Hazardous Waste "Household Hazardous Waste" shall mean any Hazardous Waste generated by a Single Family or Multi-Family Dwelling, including but not limited to: automobile maintenance and repair products (e.g., motor oil, oil filters, antifreeze, brake fluid, etc.); lawn and garden chemicals (e.g., pesticides, herbicides, fungicides, etc.); cleaning products (e.g., bathroom cleaners, drain cleaners, chlorine bleach, solvents, oven cleaners, etc.); and home improvement supplies (e.g., stains, paints, vamish, paint thinners, chemical strippers, glue, pool chemicals, etc.). Household Hazardous Waste does not include any waste generated from a business operating out of a Single Family or Multi-Family Dwelling (whether or not pÇrmitted atthat Premises) or waste otherwise generated from operating a business. Page 10 of I 10 Final Draft January 29,2020 2.36 Household Sharps Waste "Household Sharps'Waste" shall mean home generated sharps waste as defined in Health and Safety Code $117671 and includes hypodermic needles, pen needles, intravenous needles, lancets, and other devices that are used to penetrate the skin for the delivery of medications, which are generated from a Customer at Single Family or Multi-Family Dwelling. 2.37 Multi-Famil)¡Dwelling "Multi-Family Dwelling" means any building or lot containing more than one Dwelling Unit at which Contractor determines (and City agrees) the Dwelling Units must receive Solid Waste Collection services through the use of shared Bins or Split Bins, since they are not reasonably able to store Carts or otherwise receive individualized Solid Waste Collection service through the use of the automated Collection system utilizing Carts contemplated by this Agreement for Single Family Dwellings. Unless otherwise determined as set forth above, any Premises upon which four (4) or more Dwelling Units exists shall be deemed to be a Multi-Family Dwelling excluding mobile home parks. Any ambiguity as to whether a Customer's Premises qualifies for purposes of this Agreement as a Single-Family Dwelling or Multi-Family Dwelling shall be resolved by the City Manager whose decision shall be final. 2.38 Municipal Codç "Municipal Code" shall mean City's Municipal Code 2.39 Orsanic Waste "Organic Waste" shall mean Green Waste and Food Waste. 2.40 Person "Person" shall mean any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California, the County of Orange, towns, cities, and special purpose districts. 2,41 Premises "Premises" shall mean any land, building, andlor structure within the City Limits where Solid Waste is generated or accumulated. 2.42 RecyclableMaterial "Recyclable Material" or "Recyclables" shall mean those materials which are capable of being recycled, reprocessed, transformed and reused and which would otherwise be processed or disposed of as Refuse. These materials will include, but not be limited to those defined by the City for the purpose of placement by generators in proper receptacles and Collection by Contractor and may be modified from time to time when requested by Contractor and approved by City. Recyclable Materials currently being collected as of the execution of this Agreement include: newsprint (including inserts); mixed paper (including magazines, catalogs, envelopes, junk mail, Page 11 of110 Final Draft January 29,2020 comrgated cardboard, Kraft brown bags and paper, paperboard, paper egg cartons, office ledger paper, and telephone books); glass containers; aluminum beverage containers; small scrap and cast aluminum (not exceeding ten (10) pounds in weight nor two (2) feet in any dimension for any single item); steel including "tin" cans and small scrap (not exceeding ten (10) pounds in weight nor two (2) feet in any dimension for any single item); bimetal containers; metal foil; mixed plastics such as plastic containers (l-1), and bottles including containers made of HDPE, LDPE, PET, or PVC; that are California Redemption Value (CRV) labeled. . 2.43 Refuse "Refuse" shall mean all putrescible and non-putrescible solid, semi-solid and associated liquid waste, as defined in California Public Resources Code section 40191 and attributed to normal activities of a Service Unit. Refuse must be generated by and at the Service Unit wherein the Refuse is Collected. Refuse does not include those items defined as Exempt Waste. 2.44 ResidentialPremises "Residential Premises" shall mean all premises upon which Dwelling Units exist. Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which hotels and motels are operated or upon which Multi-Family Dwellings exist shall be deemed to be Commercial Premises; and Premises upon which mobile home parks exist shall be deemed to be Residential Premises and can be serviced with residential Carts or commercial Bins. 2.45 Roll off Box "Roll off Box" means Solid Waste Collection Containers of ten (10) yards or larger, including compactors. 2.46 SB 1383 "SB 1383" shall mean Assembly Bill No. 1383 from the 2015-2016 Regular Session of the California Legislature (Chapter 395, Statutes 2016). 2.47 Single Family Dwelling "Single Family Dwelling" means a building or lot containing one Dwelling Unit, and, for pu{poses of this Agreement, includes buildings and lots with more than one Dwelling Unit where such Dwelling Units are determined by the City to be reasonably able to receive individualized Solid Waste Collection service by the automated process utilizing Carts contemplated herein. Any ambiguity as to whether a Customer's Premises qualifies as a Single-Family Dwelling or Multi- Family Dwelling shall be resolved by the City Manager whose decision shall be final. 2.48 Solid Waste "Solid Waste" shall mean.and include all discarded putrescible and nonputrescible solid, semisolid, and liquid wastes, including Refuse, Recyclable Materials, Organic Waste, Stable Bedding, Construction and Demolition Debris, industrial waste, Bulky ltems, and any other Page 12 of 110 Final Draft January 29,2020 discarded solid, semisolid, and liquid waste permitted to be processed at a processing facility or disposed of at a Class III landfill and which are included within the definition of "Nonhazardous Solid Waste" set forth in the California Code of Regulations, as it may be amended from time to time. Solid Waste does not include hazardous (Class I) waste, low-level radioactive waste, untreated medical waste, or Special \ùy'astes as defined herein. 2.49 Solid Waste Handline Services "Solid 'Waste Handling Services" means the Collection, transfer, transport, recycling, processing, and disposal of Solid V/aste for Premises within the City. 2.50 Special Wastes "Special Wastes" shall mean wastes other than Solid Waste including sewage, sludge, industrial sludge, asbestos, auto bodies orparts, tires, used motor oil,IF.azaçdous Waste, Household Hazardous'Waste, Universal Waste, Animal Waste, explosive substances, radioactive materials, and other materials which may not be disposed of at a Class III landfill or which require special handling. 2.51 Split Bin "Split Bin" shall mean a metal or plastic Container, , and any similar such devices with a capacity of four (4) cubic yards or less where Bin is divided into two (2) parts to allow for Refuse to be placed in one compartment and Recyclable Materials to be placed in the other compartment. 2.52 Stable Matter "stable Matter" shall mean horse manure and stable bedding materials, such as straw, hemp, wood shavings, shredded paper, or other organic material suitable for use at horse stables. 2.53 T Service "Temporary Service" shall mean Solid Waste Handling Services provided by Contractor on an as-needed and temporary basis to any Premises within the City in conjunction with construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Roll off Boxes. 2.54 Term "Term" shall have the meaning ascribed in Section 6 of this Agreement. 2.55 Transformation "Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. "Transformation" does not include composting. Page 13 of110 Final Draft January 29,2020 2.56 Universal Waste "Universal Waste" shall mean wastes other than Solid Waste that are those Hazardous Wastes identified as universal waste in Section 66261.9 of Title 22 of the California Code of Regulations, including, but not limited to: florescent bulbs and tubes; household batteries (e.9., D, AA, button-type, etc.); non-empty aerosol cans; electronic devices (e.g., televisions, computer monitors, cell phones, radios, video cassette recorders, etc.); and mercury containing devices (e.g., thermometers, thermostats, gauges, etc.), and generated by Single or Multi-Family Dwellings. Universal Waste does not include waste generated in the course of operating a business at a Single or Multi-Family Dwelling or waste otherwise generated from operating a business. SECTION 3. GRANT OF EXCLUSIVE FRANCHISE 3.1 Scope ofFranchise Except as hereinafter expressly set forth, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege to Collect, transport, and dispose of all Solid Waste generated or accumulated within the Franchise Area. The exclusive franchise, right and privilege to provide Solid Waste Handling Services within City granted to Contractor by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the Term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law or future enactments limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth herein, Contractor agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractor as a result thereof. 3.2 Matters Excluded Scone ofFranchise Notwithstanding any other provisions set forth in this Agreement to the contrary, the exclusive franchise granted herein shall exclude the Collection, transportation, processing, recycling, andlor disposal of: (A) any Solid Waste otherwise within the scope of this Agreement which is transported by a Self-Hauler as that term is used in the Municipal Code, or any other City ordinance, resolution, regulation or policy, as such may be adopted or amended from time to time; (B) the sale or donation of Recyclable Material sold or donated by the person or entity that generated such Recyclable Material (the "Generator") to any Person or entity other than Contractor; provided, however, to the extent permitted by law, if the Generator is required to pay monetary or non-monetary consideration for the Collection, transportation, transfer, or processing of Recyclable Material to any Person or entity other than Contractor, the fact that the Generator receives a reduction or discount in price (or in other terms of the consideration the Generator is required to pay) shall not be considered a sale or donation; Page 14 of 110 Final Draft January 29,2020 (C) any Solid Waste otherwise within the scope of this Agreement which is Collected or transported to a disposal or recycling facility by City employees in the course and scope of their employment with City; (D) the Collection, transportation, or disposal of Hazardous Waste; Universal Waste; -Waste; biohazardous waste; untreated medical waste; infectious waste; Animal Waste; used cooking fats, oils, grease and similar waste; or other materials which do not constitute Solid Waste; (E) the Collection, transportation, and processing of Construction and Demolition Debris by a contractor, handyman, repairman, or other similar service provider, using its own equipment, as an incidental part of the services provided to its customers, rather than as a hauling service, provided that such waste is not Collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials; (F) the Collection, transportation, and processing of Green Waste and related Solid Waste by a gardener, or landscaper, as an incidental part of the gardening or landscaping services provided to its customers, rather than as a hauling service provided that such Solid Waste is not Collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials; (G) the Collection, transportation, and processing of Stable Matter by an owner of the property, rather than as a hauling service, provided that such Stable Matter is not Collected, transported, or processed by a third party hired for the primary purpose of Collecting, transporting, and processing of said materials. (H) Solid Waste Handling Services provided by any Person having a legal right to continue doing so, pursuant to Public Resources Code section 49520, et. seq., or otherwise, as long as and to the extent such legal right continues to exist; except that to the degree any territory in which Contractor has a franchise granted by another governmental entity is annexed into City during the Term, Contractor agrees the provisions of this Agreement shall apply to such territory and further acknowledges that this Agreement constitutes any notice required by the Public Resources Code in connection therewith. (D the Collection, transportation, and distribution of edible food recovered for human consumption prior to disposal SECTION 4. ENFORCEMENT OF EXCLUSIVITY Contractor shall be responsible for enforcing the exclusivity of this Agreement. City may reasonably assist Contractor in its efforts to enforce the exclusivity hereof. In addition, City may adopt such ordinances or other regulations as it deems to be necessary or desirable to protect the exclusive rights granted herein. City shall have the right, but not the obligation, to enforce the exclusivity hereof, including by instituting appropriate legal proceedings, and/or to request that Contractor do so. Contractor shall have an affirmative obligation to enforce such exclusivity provisions when requested to do so by City. Page 15 of110 Final Draft January 29,2020 SECTION 5. ACCEPTANCE; WAIVER Contractor agrees to be bound by and comply with all the requirements of this Agreement. Contractor waives Contractor's right to change the terms of this Agreement under federal, state, or local law, or administrative regulation. Contractor waives any right or claim to serve the City or any part of the City under any prior grant of franchise, contract, license, or permit issued or granted by any governmental entity including any right under section 49520 of the Public Resources Code. Additionally, by and upon the effectiveness of this Agreement, Contractor agrees to the termination of the Prior Agreement as of the Effective Date, agrees to waive any and all rights under the Prior Agreement, and agrees to release and hold the City harmless from any of the City's obligations thereunder, excepting, however, the right to compensation for services provided at the rates approved by City as of the Effective Date and the right to be credited for services already provided (such as situations where the maximùm calls for Bulky Item services have been reached by a Customer; provided, however, nothing contained in this provision is intended to or shall relieve Contractor from any obligation existing under the Prior Agreement pertaining to insurance, indemnification, or other legal obligations to City or Customers (as opposed to obligations to provide service pursuant to the terms thereof), or from any obligation set forth in the Prior Agreement which are called out as surviving the termination thereof, and all such obligations, including specifically those indemnification obligations relating to Environmental Laws, general liability, and AB 939 shall survive the termination of the Prior Agreement. SECTION 6. TERM The term of this Agreement (the "Term") shall be for the period of time commencing on July 1, 2020, and ending at ll.59 pm on June 30, 2030, unless this Agreement is terminated sooner pursuant to Section 18 hereof, or otherwise. At its sole discretion, the City may offer to extend the Agreement for two (2) five-year extension terms. If the City so determines to offer an extension, the first five-year extension shall be offered to the Contractor in writing on or about December 1,2028. The Contractor shall provide written notice to City as to whether Contractor accepts or rejects City's offer within thirty (30) days of the date of the offer. If the Contractor fails to provide such notice to City within thirty (30) days, City's offer shall be deemed withdrawn and City shall have no obligation to extend the term of this Agreement beyond June 30, 2030. If the City so determines to offer the second extension, the second five-year extension shall be in offered to the Contractor in writing on or about December 1,2032. The Contractor shall provide written notice to City as to whether Contractor accepts or rejects City's offer within thirty (30) days of the date of the offer. If the Contractor fails to provide such notice to City within thirty (30) days, City's offer shall be deemed withdrawn and City shall have no obligation to extend the term of this Agreement beyond June 30, 2035. Page 16 of 1 10 Final Draft January 29,2020 SECTION 7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Contractor's continued right to the benefits conveyed herein: 7.l Accuracy of Representation All representations and warranties made by Contractor and set forth in this Agreement shall be accurate, trueo and correct on and as of the Effective Date of this Agreement. 7.2 Absence of Litisation Referendum Petition There shall be no litigation pending in any court challenging the award of this exclusive franchise for Solid Waste Handling Services to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. 7 .3 Furnishins of Insurance,Bond. and Letter of Credit Contractor shall have furnished evidence of the insurance and Surety required by Sections 14 and 15 hereof, and shall comply with all ongoing requirements relating thereto. 7.4 Effectiveness of tv Council Action Except as set forth in Section 27,the City Council's Resolution approving this Agreement shall have become effective pursuant to California law. If a referendum petition or legal challenge to the award of this Agreement is submitted or filed, Contractor shall defend, indemnify and hold City harmless for all costs incurred to defend such challenge. Contractor shall further reimburse City for any costs incurred in any election subject to this Section. 7.5 Payment of Fees and Costs Accrued from Prior Agreement By July 15,2020, Contractor shall make a one-time payment to City of all fees, costs and other payments due to City of any and all unüsed balance of funds accrued as of June 30, 2020 as required in the Public Education Fund (Section 10.8.5) of the Prior Agreement. SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY CONTRACTOR 8.1 General 8.1.1 Equipment Contractor shall furnish all labor, supervision, materials, supplies, and equipment necessary to provide for all services required by the terms of this Agreement. Page 17 of 1 10 Final Draft January 29,2020 8.1.2 PerformanceStandards Contractor shall perform Solid Waste Handling Services as required hereunder in a workmanlike manner consistent with good housekeeping standards and all relevant provisions of Applicable Law. 8.1.3 Noise and Disruption Contractor shall perform Solid Waste Handling Services as required hereunder in such a manner as to minimize noise and other disruptive impacts including, without limitation, those upon traffic. Contractor shall use its best efforts to coordinate its Collection schedules such that street sweeping on any given street shall occur the business day following Collection of Solid Waste by Contractor. 8.1.4 Coll Times Contractor shall not commence Collection of Solid Waste for Customers at Commercial Premises (excepting Multi-Family Dwellings) until 6:00 a.m. and for Customers at Residential Premises and at Multi-Family Dwellings until 7:00 a.m., nor shall such activities occur after 7:00 p.m. for all Customers. The City Manager may require Contractor to comply with time frames applicable to Residential Premises in connection with Collection of Solid Waste for Customers at Commercial Premises whose Premises are in close proximity to Residential Premises. Solid Waste Collection at Single Family Dwellings shall not occur on Saturdays, excepting Temporary Services and Collection occurring on Saturdays following such holidays as may be approved by the City Manager. Except as noted herein, no Solid Waste Collection shall occur on Sundays at Single Family Dwellings, or on Sundays at Multi-Family Dwellings or Commercial Premises, except in exceptional circumstances for which specific approval is given by the City Manager. 8.1.5 Collection Schedule Contractor shall establish Collection routes and a Collection schedule which shall be approved by the City Manager such that Customers at all Residential and Commercial Premises within the City will have not less than one established Collection day each week. Contractor shall provide notice to each Customer of its established Collection day(s), and shall provide at least one week's notice to Customers of any change in their established Collection day(s). Notwithstanding any provision herein to the contrary, should any established Collection day fall on alegal holiday, or on any other holiday which is observed by either a landfill or other lawful disposal or diversion site to which Solid Waste is taken for disposal or diversion, Contractor shall provide for Collection one (1) day later during the pick-up week, and the regular Collection schedule shall be resumed the following week. A pick-up week shall be defined as Monday through Saturday. Contractor may not change its established Collection schedules without obtaining the prior written consent of the City Manager. Contractor may charge Customers for emergency Collection services, where the emergency Collection is not required as a result of a missed pickup as set forth in Section 8.1.9, at rates which do not exceed the maximum rates set forth on Exhibit A. Page 18 of110 Final Draft January 29,2020 8.1.6 Comminslin s of Routes Contractor shall not during its Collection process commingle Solid Waste Collected hereunder with Solid Waste Collected in any other City, or on behalf of any other entity operating or existing within City that is not subject to this Agreement, and is specifically prohibited from combining Collection routes related to services provided pursuant to this Agreement with Collection routes for other jurisdictions it may service. Notwithstanding the foregoing, source separated Recyclable Materials Collected by Contractor may be commingled with such materials Collected in other jurisdictions provided Contractor maintains a method of allocating tonnage between jurisdictions that is satisfactory to the City Manager. 8.1.7 Replacement of Containers Contractor shall, whenever possible, place Carts in the street gutter, adjacent to the curb, upon completing Collection. Contractor shall replace all Bins in the location upon the property of each Customer utilizing Bins designated for storage of Bins, and shall secure gates, doors, and/or enclosures when applicable. 8.1.8 Contractor'sContainers (A) Contractor's Containers shall meet the minimum standards set forth on the attached Exhibit I. (B) Contractor shall provide three sizes of Carts (small, medium and large) having capacities of approximately 35-gallon, 64-gallon and 96-gallon. Notwithstanding the foregoing, the Parties recognize that different vendors provide Carts of slightly different dimensions, and hence the capacity of each of the three Cart sizes Contractor is to provide (i.e., small, medium and large) may vary slightly, but in no case by more than 10% of the capacities noted above. (C) Contractor shall be responsible to provide Carts in colors and labeling that meet SB 1383 regulatory requirements, and Contractor shall not receive additional compensation for providing Carts that comply with SB 1383 regulatory requirements. (D) Contractor shall be responsible to replace, upon request as necessary, all of its Containers. (E) Contractor shall deliver Containers to each Customer at no additional charge. (F) Contractor shall ensure it maintains an accurate list that contains the total number of Carts at each service address. Contractor is endeavoring to implement a system whereby "bar codes" are affiliated with each Cart in use, and at such time as (if) such a system is implemented the bar code data for each Cart shall be included in the aforementioned list. Contractor shall keep this list up to date at all times, provide it to City upon request, and shall include a current updated list with each annual report as set forth in Section 23.3. Page 19 of I 10 Final Draft January 29,2020 (G) All Carts shall be maintained by Contractor in a watertight condition, as shall all Bins which are used primarily for the disposal of Solid Waste containing liquids. (H) Within forty-eight (48) hours after notification (Sundays and holidays excepted), Contractor shall repair, remove graffiti from, and replace lost, stolen or damaged Carts at no charge to Customers. However, Contractor shall be entitled to charge Customers for the replacement of any Cart that has been damaged by a Customer's willful neglect or abuse, ordinary wear and tear excepted, with such charges being subject to the City Manager's approval and at a fee no higher than Contractor's actual cost of repair and replacement. Notwithstanding the above, upon request and up to one time per calendar year, Contractor shall exchange a Customer's Cart for a new or "like new" Cart at no additional charge. (1) Contractor shall at Customer's request annually refurbish, replace, and steam clean as necessary all Bins and Contractor-provided Roll off Boxes at no charge to Customers; provided, however, City may require the steam cleaning or replacement of Bins utilized at restaurants, bars and grocery stores/markets more frequently if it determines such action is needed to protect public health and safety. Additional steam cleaning shall be provided to any Customers who request it at a charge not to exceed the maximum rate set forth in Exhibit A hereto, or alternatively Contractor shall provide a replacement Bin or Roll off Box to Customers at no charge. Contractor may charge Customers for damaged Bins at rates that do not exceed the maximum rate set forth in Exhibit A. (J) All Bins and Roll off Boxes shall be kept freshly painted in a uniform fashion and shall be identified with Contractor's name and phone number in letters not less than three inches high on its exterior so as to be visible when the Container is placed for use. (K) Contractor shall be responsible to provide Bins, Split Bins, and Roll off Boxes in colors and labeling that meet SB 1383 regulatory requirements, and Contractor shall not receive additional compensation for providing Bins, Split Bins, and Roll off Boxes that comply with SB 1383 regulatory requirements. (L) At a Customer's request, Contractor shall provide Bins with locking lids and locks and may charge rates to Customers for locking Bins which do not exceed the maximum rates set forth on Exhibit A. 8.1.9 Missed Pick-uos In case of a missed pick-up called in by a Customer, Contractor shall Collect Solid Waste from such Customer no later than the next day of the pick-up week following the date of the call. Records of the addresses of all missed pick-ups shall be maintained by Contractor, and shall be reported to City upon request. If Contractor demonstrates to the satisfaction of the City Manager a pattem of ongoing late "set-outs" or wrongful Customer notifications by any given Customer, missed pick-ups resulting from late set-outs by that Customer shall not be counted as missed pick- ups in evaluating Contractor's performance hereunder. The Customer service phone system rêquired by Section 10.7.2 hereof is intended, among other things, to serve as a "hotline" for Cuitomers to call in the event Solid Waste placed for Collection is not Collected by Contractor Page2} of 110 Final Draft January 29,2020 and to facilitate having such Solid Waste Collected as soon as reasonably possible, and in no event later than as required by the provisions hereof. 8.1.10 Record of Non-collection As more fully set forth herein, Contractor shall Collect all Solid Waste placed for Collection by Customers in Containers, excepting materials that do not meet the definition of Solid 'Waste (such as hazardous materials). Whenever Contractor determines not to Collect any Solid Waste deposited for Collection, Contractor shall leave a tagat least 2" by 6" in size, indicating the reason for Contractor's refusal to do so. This information may be either handwritten or left by means of a check system (i.e., checking off boxes on a preprinted form). The tag shall provide Contractor's business name and itç local telephone number and shall be securely fastened to the Container or the article refused. Contractor shall maintain a record of all such taggings at its place of business. Such record shall contain the date of such notice, street address, reason for non- collection, and a summary of any communications between Contractor and the Customer involved. Such notice shall be retained so that it may be inspected by representatives of City upon request. 8.1.1 I Recyclables and Organic Waste Contamination (A) Contractor must offer all Customers the correct combination of Cart and Bin sizes and collection frequency that matches their unique service needs (as reasonably determined by Customer) to reduce contamination of Recyclable Materials and Organic Waste, and provide service at the least cost to Customer. To support City's diversion goals and Contractor's Diversion Requirements as set forth in Section 8.8.3.4, Contractor is only required to collect and process Recyclable Materials if they have been separated by the Customer from Refuse and Organic Waste, and is only be required to collect Organic Waste if it has been separated by the Customer from Refuse and Recyclable Materials. (B) As part of Contractor's Community Outreach and Education program, Contractor has agreed to provide outreach and support to all Customers. Additionally, Contractor's route collection personnel will report to Contractor's supervisors if they observe potential contamination problems, and/or insufficient collection capacity. Route reviews will be conducted by the Contractor to comply with SB 1383. For purposes of determining if Recyclable Materials or Organic Waste are deemed to be contaminated, if, by visual or digital inspection, Recyclable Materials are commingled with ten percent (10%) by weight or volume of Garbage or Organic Waste, or if, by visual inspection, Organic Waste is commingled with three percent(3%) by volume of Garbage or Recyclable Materials, then Recyclable Materials andlor Organic Waste will be deemed to be contaminated and Contractor may take the following steps: (1) Single Family Customers. First and Second Occurrence. For the first and second occutrence within any one Calendar Year of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), Contractor must collect the contaminated container (as Refuse) and must affrx a Contamination Violation Notice to the contaminated container which contains instructions on the proper procedures for sorting Recyclable Materials or Page2l of 110 Final Draft January 29,2020 Organic Waste, and must notifi' the Customer by phone, U.S. mail, e-mail, or in person (which may be a container tag), that for the third and subsequent incidents of excess contamination, the Customer may be charged a contamination fee for the contaminated container, and Contractor also may increase the Cart size, or require an additional Cart at Customer's cost not to exceed the maximum rates set forth in Exhibit A. Contractor's representative must also contact the Customer by phone, U.S. mail, e-mail, or in person (which may be a container tag) to ensure that they have the appropriate level of service for proper collection of Recyclable Materials and/or Organic Waste. Contractor must also provide digital/visual documentation to the Customer that clearly documents the Customer's on-going contamination problems. Third and S Occurrence. For the third or subsequent occuffence within any one Calendar Year of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), Contractor must collect the contaminated Container (as Solid Waste) and must charge the Customer a contamination fee as set forth in Exhibit A. Contractor must continue providing the Recyclable Materials or Organic Waste Collection Services. Contractor must provide (or have provided) digital/photographic documentation to the Customer that clearly documents the Customer's on-going contamination problems and written Notices of contamination as described above. Contractor may increase the Container size or collection frequency at Customer's cost not to exceed the maximum rates set forth in Exhibit A and impose a contamination surcharge on the account for a period of six months or until the Customer has demonstrated no contamination for a period of three consecutive months at a cost not to exceed the maximum rates set forth in Exhibit A. Contractor must notifu City (email notice is acceptable) within five (5) Business Days if Contractor increases the Container size or collection frequency for excessive contamination or imposes the contamination surcharge to the account. City will consult with Contractor and consider, and pursue as applicable, appropriate legal remedies against offending Customers in order to secure discontinuance of the contamination. All City costs of such action shall be recoverable by the City from the offending Customer. (2)and Multi- The following provisions will only apply on or after July l, 2020 and to those Commercial and Multi-Family Customers as of July 1,2021. After this grace period, the provisions of Section S.1.11(BX2) will be applicable to all Commercial and Multi-Family Customers. First and Second Occurrence. For the first occuffence within any one Calendar Year of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), Contractor must collect the contaminated container (as Refuse) and must affix a Contamination Violation Notice to the contaminated container which contains instructions on the proper procedures for sorting Recyclable Materials or Organic Waste, and must notiÛ'the Customer by phone, U.S. mail, e-mail, or in person (which may be a container tag), that for the third and subsequent incidents of contamination, the Customer may be charged a contamination fee for the contaminated container, and Contractor may increase Page22 of 110 Final Draft January 29,2020 the Container size or collection frequency at Customer's expense and impose a contamination surcharge on the account for a period of six months or until the Customer has demonstrated no contamination for a period of three consecutive months at a cost not to exceed the maximum rates set forth in Exhibit A. Contractor's representative must also contact the Customer by phone, U.S. mail, e-mail, or in person (which may be a container tag) to ensure that they have the appropriate level of service for proper collection of Recyclable Materials andlor Organic Waste. Contractor must also provide digital/visual documentation to the Customer that clearly documents the Customer's contamination problem. Third and t Occurrence. For the third and subsequent occurrence within any one Calendar Year of contamination for a particular container (i.e., Recyclable Materials or Organic Waste), Contractor will provide a Contamination Violation Notice that contains instructions on the proper procedures for setting out Recyclable Materials or Organic Waste, and Contractor must collect the contaminated Container (as Refuse) and will charge the Customer a contamination fee at a cost not to exceed the maximum rates as set forth in Exhibit A. For any contamination fee charge being assessed, Contractor must provide digital/visual documentation to the Customer that clearly documents the Customer on-going contamination problems. Contractor may increase the Container size or collection frequency at Customer's expense at a cost not to exceed the maximum rates set forlh in Exhibit A and impose a contamination surcharge on the account for a period of six months or until the Customer has demonstrated no contamination for a period of three consecutive months at a cost not to exceed the maximum rates set forth in Exhibit A. Contractor must notify City (email notice is acceptable) within five (5) Business Days if Contractor increases the Container size or collection frequency for excessive contamination or imposes the contamination surcharge to the account. City will consider, and pursue as applicable, appropriate legal remedies against offending Customers in order to secure discontinuance of the contamination. All City costs of such action shall be recoverable by the City from the offending Customers. (3) Trackinq Occurrences of Contamination. Each Contamination occuffence is tracked annually per Calendar Year or as may be required by SB 1383, and resets at the start of each Calendar Year if contamination occuffences are not active and consecutive. Where contamination is occurring, and occuffences are consecutive and unremedied, their count shall continue across Calendar Years until remedy occurs. In this case, once the Customer has demonstrated no contamination for a period of three consecutive months the clock will reset. (4) Disputes Over Excess Contamination Charges. If Customer disputes a contamination charge (which must be within 30 days of them being assessed), Contractor will temporarily halt any unpaid contamination charge andlor increased Maximum Service Rate resulting from increasing the Collection Container size or collection frequency, and Contractor may request a ruling by the City Page23 of 110 Final Draft January 29,2020 Manager to resolve the dispute. A request by Contractor to the City Manager to rule on any such dispute must be filed within ten (10) Business Days of Contractor's halting of contamination charge, or increased Maximum Rate, and must include written documentation and digital/visual evidence of ongoing overall problems. The City Manager may request a meeting (in person or phone) with both the Customer and Contractor to resolve the dispute. Following such a meeting, the City Manager will rule on the dispute within ten (10) Business Days, and the City Manager's decision on resolving the dispute between and Customer will be final. If the City Manager rules in favor of the Customer, Contractor will credit the disputed contamination charges or increased Maximum Service Rate. If the City Manager rules in favor of Contractor, Contractor may charge Customer the prior halted contamination charge and/or increased Maximum Service Rate resulting from increasing the Collection Container size or collection frequency and may follow the steps for collection of delinquent accounts. 8.2 R Solid Waste s Service 8.2.1 - Automated Co Contractor shall provide each Customer at a Single Family Dwelling with one Cart designated for the Collection of Refuse, one Cart designated for the Collection of Recyclable Matèrials, and one Cart designated for the collection of Organic Waste, and Customer shall be entitled to choose between either a 35 gallon, 64 gallon, or 96 gallon Carts (subject to the provisions of Section 8.1.S(B)). Contractor shall Collect all Solid Waste placed out for Collection in Carts by each Customer at a Single-Family Dwelling not less than once per week using an automated Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor may charge Customers for additional Collection in excess of once per week at rates that do not exceed the maximum rates set forth in Exhibit A. Upon request from any Customer at a Single-Family Dwelling, Contractor shall provide such Customer with one or more additional Refuse, Recyclables, or Organic 'Waste Carts, and shall Collect all Solid Waste placed for Collection in such additional Refuse , Recyclables, or Organic Waste Carts at rates that do not exceed the maximum rates set forth in Exhibit A. Wherever feasible, Customers shall be directed by Contractor to place Carts for Collection either in the street gutter, against the curb, in front of their Premises, or adjacent to their Premises in the alley or easement in the rear of their Premises. If a Customer and Contractor cannot agree upon a Collection location, or if City Manager determines the selected location may cause safety or other concerns, City Manager may make the final determination of the Collection location. It is the intent of the parties that the services provided under this Agreement will result in an automated Collection system that includes source separation of Recyclable Material and source separation of Organics Waste. Accordingly, if Réfuse is routinely placed for Collection other than in a Refuse Cart, Contractor shall work with the Customer involved to determine if the Customer is in need of additional or larger Refuse Carts. The City Manager is authorized to require Contractor to deliver additional Refuse Carts to any such Customers or to require such other action of Contractor as is reasonably deemed necessary to ensure the Collection system, including specifically the recycling programs, contemplated by this Agreement are achieved. 8.2.2 Walk-Out Service Page24 of 110 Final Draft January 29,2020 Contractor shall provide eligible Customers with "walk-out service" as set forth in this Section at no additional charge, including Customers in the San Juan Hills West area. This service shall require Contractor to use its own forces to bring a Customer's Carts from a Customer's backyard, side yard, or such other location at which the Customer's Containers are regularly stored, to Contractor's Collection Vehicle; and, after disposal of the contents thereof, returning said Containers to the location where they are regularly stored. In addition to Customers in the San Juan Hills West area, to be eligible for this service a Customer shall have a DMV issued disabled person placardllicense plates, and provide a letter to Contractor from a physician confirming the Customer is unable to move his/her Carts to the curb, and that to the best of the physician's knowledge there is no other capable persons living in the Customer's household to provide this service. Contractor may require each eligible Customer to provide a new letter from a physician on an annual basis in order to maintain eligibility for walk-out service. Any dispute regarding a Customer's eligibility for walk-out service shall be resolved by the City Manager. Contractor may provide Customers who are not eligible for free walk-out service pursuant to the forgoing with walk-out service at a rate which shall not exceed the maximum rate set forth in Exhibit A. Contractor may require as a condition of walk-out service that a Customer sign a standardized agreement, the terms of which shall be subject to City's approval, which authorizes entry onto the Customer's property and holds Contractor harmless from liability (including specifically liability related to pets escaping) associated with Contractor providing such service. 8.2.3 Recvcline for Sinsle Familv Dwell inss Usins Carts Contractor shall provide each Customer at a Single-Family Dwelling with a Cart of the same size as the Customer's Refuse Cart (subject to the provisions of Section 8.1.8(B) designated for the Collection of Recyclables (a Recyclables Cart). Upon request by a Customer using a 35- or 64-gallon Refuse Cart, Contractor shall provide a Recyclables Cart that is larger than the Customer's Refuse Cart (i.e., either a 64- or 96-gallon Recyclables Cart, as applicable) at a rate which shall not exceed the maximum rate of the Customer's Refuse Caft as set forth in Exhibit A. Contractor shall Collect all Recyclable Material placed out for Collection in a Recyclables Cart by each Customer at a Single-Family Dwelling not less than once per week using an automated Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one additional Recyclables Cart at no additional charge; and, further shall provide such Customers, upon request, with additional Recyclables Carts at rates that do not exceed the maximum rates set forth in Exhibit A corresponding to the size of Recyclables Carts provided. The maximum rate set forth on Exhibit A applicable to Customers whose Recyclables Carts are larger than their Refuse Cart shall be based on the maximum rate applicable to the size of Refuse Cart provided; however, as noted above, the maximum rate set forth on Exhibit A applicable to additional Recyclables Carts shall be that set forth on Exhibit A corresponding to the size of the Recyclables Cart provided. Contractor shall Collect Recyclable Material placed in Recyclables Carts for Collection from each Customer at a Single-Family Dwelling on the same day as such Customer's Refuse Cart is Collected, utilizing an automated Collection process. Customers shall be directed to place Recyclables Carts in the same location for Collection as Refuse Carts. At a minimum the following materials shall be allowed to be deposited by Customers for Collection in Recyclables Carts aluminum cans; glass jars and bottles; bi-metal, and tin cans; empty aerosol containers; polyethylene terephthalate plastic ("PET"); high density polyethylene plastic ("HDPE"); plastics types 3 - 7; plastic bags, shrink wrap, plastic toys and tools, and other plastic Page25of110 Final Draft January 29,2020 materials (if readily identifiable as being recyclable); coat hangers and metal foil; newspaper; mixed paper (e.g., ledger, computer, junk mail, magazines, paperback books cereal boxes, envelopes, paper shopping bags and non-metallic wrapping paper); comrgated cardboard; and telephone books. Contractor shall deliver all Recyclable Material to a properly permitted facility that will process Recyclable Material in a method that will provide the City with diversion credit under AB 1594, AB 1826, and SB 1383. Contractor shall follow the Source Separation Program Implementation Plan included as Exhibit F, the Sustainability and Diversion Plan included as Exhibit G, and the Community Outreach and Education Plan included as Exhibit H. 8.2.4 Oreanic Waste Collection for Sinele F Dwellinss Contractor shall provide Customers at Single Family Dwellings with a Cart of the same size as the Customer's Refuse Cart (subject to the provisions of Section 8.1.8(B)), designated for Collection of commingled Organic Waste (an "Organic Waste Cart"). Upon request by a Customer using a 35-or 64- gallonRefuse Cart, Contractor shall provide an Organic Waste Cart that is larger than the Customer's Refuse Cart (i.e., either a 64 or 96 gallon Organic Waste Cart, as applicable). Contractor shall Collect all Organic Waste placed out for Collection in an Organic Waste Cart by each Customer at a Single-Family Dwelling not less than once per week using an automated Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Upon request from any Customer at a Single-Family Dwelling, Contractor shall provide such Customer with additional Organic'Waste Carts at rates that do not exceed the maximum rates set forth in Exhibit A corresponding to the size of Organic Waste Carts provided. The maximum rate set forth on Exhibit A applicable to Customers whose Organic Waste Carts are larger than their Refuse Cart shall be based on the maximum rate applicable to the size of Refuse Cart provided; however, as noted above, themaximum rate set forth on Exhibit A applicable to additional Organic Waste Carts shall be that set forth on Exhibit A corresponding to the size of the Organic Waste Cart provided. Contractor shall Collect Organic Waste placed in Organic Waste Carts for Collection from each Customer on the same day as such Customer's Refuse Cart is Collected, using an automated Collection process. Organic Waste may be placed in Organic Waste Carts in compostable bags. Customers shall be directed to place Organic Waste Carts in the same location for Collection as Refuse Carts. Contractor shall follow the Source Separation Program Implementation Plan included as Exhibit F, the Sustainability and Diversion Plan included as Exhibit G, and the Community Outreach and Education Plan included as Exhibit H. 8.2.5 City Manaqer Authorit)¡ to Oversee Encouragement of Rec]¡cline The flexibility provided to Customers pursuant to Sections 8.2.3 and 8.2.4, enabling them to request Recyclables and Organic Waste Carts which vary in size from their Refuse Cart size, is intended to benefit Customers and encourage them to participate as fully as possible in available recycling programs. However, if Refuse is routinely placed by Customers in Recyclables Carts or Organic Waste Carts such so as to undermine the intent of allowing varying Cart sizes, the City Manager may require Contractor to deliver additional or different size Refuse Carts to any such Customers, to require Contractor to only provide such Customers with uniform Cart sizes, or to require such other action of Contractor as is reasonably deemed necessary to ensure the Collection system, including specifically the recycling programs, contemplated by this Agreement are achieved. Page26 of 110 Final Draft January 29,2020 8.2.6 Multi-Famil)¡DwellingCustomers Contractor shall comply with all requirements applicable to Commercial Customers, set forth below, in connection with Multi-Family Dwellings, and fuither shall comply with the specific provisions contained herein related to such Dwellings. Customers at Multi-Family Dwellings shall be provided sufficient services by Contractor to enable them and the City to comply with AB 939, AB 1594, SB 341, AB 1826, and SB 1383. 8.2.6.1 Multi-Famil]¡ Source Separated Collection Prosram Contractor shall provide all Customers at Multi-Family Dwellings participating in a Source Separated Collection Program meeting the requirements set forth below through a combination of Bins, meeting the minimum standards set forth in Exhibit I, some of which are designated for the Collection of Refuse ("Refuse Bins"), designated for the Collection of Recyclable Material ("Recycle Bins"), and designated for the Collection of Organic Waste. Contractor shall follow the Source Separation Program Implementation Plan included as Exhibit F, the Sustainability and Diversion Plan included as Exhibit G, and the Community Outreach and Education Plan included as Exhibit H. (A) Refuse Bins and Carts: Contactor shall provide all Customers with the number of Refuse Bins reasonably needed for Refuse Collection at each Premises at which Multi-Family Dwellings exist, bearing in mind both the number of Dwellings and space limitations, and shall Collect all Refuse placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. If warranted by specific circumstances, at any given Multi-Family Dwelling Refuse Carts may be utilized instead of Refuse Bins. The size of Refuse Bins utllized,and the frequency of their Collection, shall be mutually agreed upon in writing by Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Refuse Bins, Refuse Bin sizes and more frequent Collection should it determine such action is needed to protect the public health, safety and welfare. In the event of any dispute as to the adequacy of the number of Refuse Bins at any given Multi- Family Dwelling, the City Manager shall have the ability to approve the number of Refuse Bins used at such location. In the event extra pickups are required at a Multi-Family Dwelling in any given month, Contractor may charge the Person who manages or owns the Multi-Family Dwelling for such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forth in the attached Exhibit A. (B)Recvcle Bins and Carts Contactor shall provide all Customers with the number of Recycle Carts or Bins reasonably needed for Recyclable Material Collection at each Premises at which Multi- Family Dwellings exist, bearing in mind both the number of Dwellings and space limitations, and shall Collect all Recyclable Material placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. If warranted by specific circumstances, at any given Multi-Family Dwelling, Split Bins Page27 of 110 Final Draft January 29,2020 may be instead of Recycle Carts or Recycle Bins. The size of Recycle Carts or Bins utilized, and the frequency of their Collection, shall be mutually agreed upon by Contractor and its Customers in writing (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Recycle Carts or Bins, Recycle Carts or Bin sizes and more frequent Collection should it determine such action is needed to protect the public health, safety and welfare. In the event of any dispute as to the adequacy of the number of Recycle Carts or Bins at any given Multi-Family Dwelling, the City Manager shall have the ability to approve the number of Recycle Carts or Bins used at such location. In the event extra pickups are required at a Multi-Family Dwelling in any given month, Contractor may charge the Person who manages or owns the Multi-Family Dwelling for such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forth in the attached Exhibit A. At a minimum, Contractor shall allow the materials identified in Section 8.2.3 above to be placed for Collection in Recycle Carts Should such Recycle Carts or Bins be contaminated with materials not permitted to be placed therein for Collection, beginning July 7,2021, Contractor may charge the responsible Customer a rate that does not exceed the maximum rate set forth in Exhibit A for contaminated loads. Contractor shall deliver all Recyclable Material to a properly permitted facility that will process Recyclable Material in a method that will provide the City with diversion credit under AB 1594, AB 1826, and SB 1383. (c)Orsanic Waste Carts.and/or Roll off Boxes: Contactor shall provide all Customers with the number of Organic Waste Carts, Bins, and/or Roll off Boxes reasonably needed for Organic Waste Collection at each Premises at which Multi-Family Dwellings exist, bearing in mind both the number of Dwellings and space limitations, and shall Collect all Organics Waste placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. As part of the Commercial Organic Waste, Roll off Boxes may only be used for the Collection of Green 'Waste mutually agreed upon by Contractor and its Customers in writing (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Organics Waste Carts or Bin sizes and more frequent Collection should it determine such action is needed to protect the public health, safety and welfare. In the event of any dispute as to the adequacy of the number of Organic Waste Cart or Bin at any given Multi-Family Dwelling, the City Manager shall have the ability to approve the number of Organic Waste Cart or Bin used at such location. In the event extra pickups are required at a Multi-Family Dwelling in any given month, Contractor may charge the Person who manages or owns the Multi-Family Dwelling for such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forth in the attached Exhibit A. Should such Organic Waste Cart or Bin be contaminated with materials not permitted to be placed therein for Collection, Contractor may charge the responsible Customer arate that does not exceed the maximum rate set forth in Exhibit A for contaminated loads. Contractor shall deliver all Organic Waste to a properly permitted facility that will compost or process Organic Waste in a method that will provide the City with diversion credit under AB 1594, AB 1826, and SB 13 83. Page28ofll0 Final Draft January 29,2020 8.2.7 Bulk)¡ Item Collection 8.2.7.1 Bulky Item Service for Siugþ Family Dwellines Contractor shall provide Bulky Item Collection services to residents living at all Single- Family Dwellings, including mobile home parks serviced exclusively by Carts and individually billed, in City at no charge on an on-call basis as set out here. The no-charge Bulky Item Collection service set forth in this Section shall only apply with respect to Bulky Items generated at the Dwelling Unit at which the Customer calling for service resides and is limited to up to four (4) items or up to 20 bags of Green Waste per scheduled pick up and four (4) pickups per calendar year. Bulky Items Collected pursuant to this Section shall occur on the same day as the Customer's regularly scheduled Collection day. In order to receive such service, residents shall provide Contractor with at least forty-eight (48) hour prior notice by phone of the number and type of Bulky Items to be Collected. Contractor shall produce, keep current, and provide public information specifically outlining its Bulky Item Collection service, which shall specifìcally include the annual publication and distribution of a brochure describing this service to residents of all Single-Family Dwellings in City. Contractor may charge rates for the Collection of each Bulky Item in excess of the above limits that do not exceed those set forth on Exhibit A. Contractor shall provide Bulky ltem Collection services to mobile home parks that utilize common bins for Refuse collection up to two (2) times per year on an on-call basis arranged through the mobile home park management company. Contractor may charge rates for the Collection of each Bulky Item in excess of the above limits that do not exceed those rates set forth in Exhibit A. Bulky Item Collection service calls shall be responded to within a reasonable time but not longer than seven (7) days from the date of the mobile home park management company's call for service. Contractor shall produce, keep current, and provide public information specifically outlining the Bulky Item pick-up service. Bulky Items Collected pursuant to this Section are subject to the diversion and handling requirements set forth in Sections 8.2.7.3 and 8.2.1.4. 8.2.1.2 Bulk)¡ Item Service for Multi-Family Dwellinss Residents at Multi-Family Dwellings shall receive the same Bulky Item Collection services as Commercial Premises as set forth in Section 8.3.3. 8.2.7.3 Bulky Item Diversion Bulky Items Collected pursuant to this Agreement may not be landfilled until the following hierarchy of diversion efforts has been followed by Contractor: a. Reuse as is (if energy efficient); b. Disassemble for reuse or Recycling; c. Recycle, Transformation, or other means of diversion; and d. Disposal. Page 29 of I 10 Final Draft January 29,2020 This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky Items. The disposition of Bulky ltems shall be tracked by Contractor and this information shall be included in Contractor's quarterly reports to City. 8.2.7.4 Proper Handling of Bulk)¡ Items Contractor shall properly handle all materials required to be Collected as Bulky Items, including specifically items that require special handling pursuant to the Environmental Laws, such as materials that constitute Universal'Waste and/or e-waste." 8.2.8 Tarseted Neishborhood bandoned Items Sweeo Contractor shall provide an abandoned Bulky ltems sweep program for targeted neighborhoods (the "Abandoned Items Sweep") as may be identified by the City Manager, with the intent that this provision will apply to neighborhoods that might otherwise have a disproportionate concentration of abandoned Bulky Items as compared to the rest of the City. The Abandoned Items Sweep shall occur on the same day that refuse Collection occurs for the targeted neighborhood. Contractor shall Collect all Bulky Items and other items abandoned in said targeted neighborhoods during the Abandoned Items Sweep. If over 10% of the Customer accounts in a targeted neighborhood are delinquent, Contractor may suspend the Abandoned Items Sweep for that area. Contractor shall produce, keep current, and provide public infonnation specifically outlining its Abandoned Items Sweep, which shall specifically include the annual publication and distribution of a brochure describing this service to Customers in the City targeted neighborhoods. 8.2.9 Residential Drop Off of Household Sharps Waste Contractor shall endeavor to establish a location(s) in or near City at a pharmaceutical establishment or other facility approved by City, where any resident of the City may drop off Household Sharps Waste. City facilities shall not be used as a drop off location. Contractor shall provide a list of all drop off facilities available to City residents for Household Sharps Waste to the City as part of the annual report as set forth in Section 23.3. 8.2.10 Residenti al of llniversal Waste Contractor shall develop and implement a Universal Waste drop-off program where, at City's request, Contractor shall provide up to six (6) public or private locations (including City Hall), subject to City approval, for residents of the City to drop-off Universal Waste. Contractor shall properly handle and dispose of, or provide a third party approved by the City Manager, to handle and dispose of, all Universal Waste in accordance with all Applicable Law and, to the extent legally possible, follow the hierarchy of diversion efforts set forth in Section 8.2.7.4. 8.2.11 Curbside Household Hazardous Waste Collection Contractor shall Collect Household Hazardous Waste from Residential Premises on an on- call basis at rates that do not exceed the maximum rates set forth in Exhibit A. Page 30 of 1 10 Final Draft January 29,2020 8.3 Commercial Solid Waste Handling Services 8.3.1 Commercial Bins and Roll off Boxes Contractor shall provide all Customers at Commercial Premises ("Commercial Customers") with at least one Container for Collection of Refuse, and shall Collect all Refuse placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor shall provide additional Containers to Customers and shall provide additional Collections upon request, or as may be required by City's Municipal Code, health and safety requirements, or by the City Manager, and may charge rates for such services which do not exceed the maximum rates set forth in Exhibit A. Bins and Roll off Boxes shall be Collected by Contractor from the location upon each Customer's property designated for their storage, and replaced to that location with gates and/or doors secured, as applicable, after Collection is completed, unless different arrangements are agreed upon by the Customer and Contractor. Notwithstanding anything set forth herein to the contrary, Contractor need not provide Containers to Customers who chose to utilize their own Roll off Box compactors. Further, Contractor may lease Roll off Box compactors to Customers at rates that it sets, which rates shall not be regulated by this Agreement. Contractor shall provide Solid Waste Handling Services in connection with Roll off Box compactors at rates that do not exceed the maximum rates set forth in Exhibit A. 8.3.2 Commercial Carts As an alternative to the requirements of Section 8.3.1, Contractor shall offer Collection in sixty-four (64) or ninety-six (96) gallon Refuse Carts (subject to the provisions of Section 8.1.8(B) to Commercial Premises where the Customers do not have space for, or do not generate enough Refuse to require the use of Bins, Split Bins, or Roll off Boxes for Collection. Rates for Customers at Commercial Premises (excepting Multi-Family Dwellings) receiving such service shall not exceed the maximum rates set forth on Exhibit A for Commercial Refuse Carts; provided, however, rates for Customers at Multi-Family Dwellings receiving such service shall not exceed the maximum rates set forth on Exhibit A for Residential Cart Service. If Contractor and Customer have a disagreement as to whether a Refuse Cart is appropriate, or if City determines the Collection in a Refuse Cart causes health and safety or other concerns, City shall make the final determination as to whether Collection in a Refuse Cart may occuf. 8.3.2.r Commercial Source S ted Collection Prosram Contractor shall provide Customers at all Commercial Premises with a Source Separated Collection Program meeting the requirements set forth below through a combination of Containers, meeting the minimum standards set forth in Exhibit I, some of which are designated for the Collection of Refuse, Recyclable Material, and Organic Waste. Contractor shall follow the Source Separation Program Implementation Plan included as Exhibit F, the Sustainability and Diversion Plan included as Exhibit G, and the Community Outreach and Education Plan included as Exhibit H. (A) Refuse Containers: Page 31 of 1 10 Final Draft January 29,2020 Contactor shall provide all Customers with the number of Refuse Containers reasonably needed for Refuse Collection at each Commercial Premises, and shall Collect all Refuse placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. If warranted by specific circumstances at any given Commercial Premises, Split Bins may be utilized instead of Refuse Carts, Bins, or Roll off Boxes. The size of Refuse Containers utilized, and the frequency of their Collection, shall be mutually agreed upon by Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Refuse Containers, sizes, and more frequent Collection, should it determine such action is needed to protect the public health, safety and welfare. In the event of any dispute as to the adequacy of the number of Refuse Containers at any given Commercial Premises, the City Manager shall have the ability io approve the number of Refuse Containers used at such location. In the event extra pickups are required at a Commercial Premises in any given month, Contractor may charge the Person who manages or owns the Commercial Premises for such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forth in the attached Exhibit A. (B) Recyclables Containers: Contactor shall provide all Customers with the number of Recycle Containers reasonably needed for Recyclable Material Collection at each Commercial Premises, and shall Collect all Recyclable Material placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. If warranted by specific circumstances at any given Commercial Premises, Split Bins may be utilized instead of Recycle Carts, Bins, or Roll off Boxes. The size of Recycle Containers utilized, and the frequency of their Collection, shall be mutually agreed upon by Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Recycle Containers, sizes, and more frequent Collection should it determine such action is needed to protect the public health, safety and welfare. In the event of any dispute as to the adequacy of the number of Recycle Containers at any given Commercial Premises, the City Manager shall have the ability to approve the number of Recycle Containers used at such location. In the event extra pickups are required at a Commercial Premises in any given month, Contractor may charge the Person who manages or owns the Commercial Premises for such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forth in the attached Exhibit A. At a minimum, Contractor shall allow the materials identified in Section 8.2.3 above to be placed for Collection in Recycle Car1s. Should such Recycle Carts or Bins be contaminated with materials not permitted to be placed therein for Collection, beginning July | , 2021 , Contractor may charge the responsible Customer a rate that does not exceed the maximum rate set forth in Exhibit A for contaminated loads. Contractor shall deliver all Recyclable Material to a properly permitted facility that will process Recyclable Material in a method that will provide the City with diversion credit under AB 939, AB 341, AB 1594, AB 1826, and SB 1383. (C) Organic Waste Carts, Bins and Roll off Boxes: Page32 of 110 Final Draft January 29,2020 Contactor shall provide all Customers with the number of Organic Waste Containers reasonably needed for Recyclable Material Collection at each Commercial Premises, bearing in mind space limitations, and shall Collect all Organics Waste placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. As part of the Commercial Organic Waste, Roll off Boxes may only be used for the Collection of Green Waste. The size of Organic Waste Containers utrlized, and the frequency of their Collection, shall be mutually agreed upon by Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Organics Waste Container sizes and more frequent Collection should it determine such action is needed to protect the public health, safety and welfare. In the event of any dispute as to the adequacy of the number of Organic 'Waste Containers at any given Commercial Premises, the City Manager shall have the ability to approve the number of Organic Waste Containers used at such location. In the event extra pickups are required at a Commercial Premises in any given month, Contractor may charge the Person who manages or owns the Multi-Family Dwelling for such pickups an amount that does not exceed the maximum rate for "extra dumps" as set forth in the attached Exhibit A. Should such Organic Waste Containers be contaminated with materials not permitted to be placed therein for Collection, beginning July 1, 2021, Contractor may charge the responsible Customer a rate that does not exceed the maximum rate set forth in Exhibit A for contaminated loads. Contractor shall deliver all Organic Waste to a properly permitted facility that will compost or process Organic Waste in a method that will provide the City with diversion credit under AB 939, AB 1594, AB 1826, and SB 1383. 8.3.3 Commercial Item Service Contractor shall provide unlimited Bulky Item Collection services to Commercial Premises on an on-call basis. Contractor may charge rates for such services which shall not exceed the maximum rates set forth in the attached Exhibit A. Bulky Item Collection service calls shall be responded to within a reasonable time but not longer than seven (7) days from the date of the Customer's call for service. Contractor shall produce, keep current, and provide public information specifically outlining the Bulky Item pick-up service. Bulky Items Collected pursuant to this Section are subject to the diversion and handling requirements set forth in Sections 8.2.1.3 and 8.2.7.4. 8.3.4 Monitoring and Cleaning of Bin Enclosures Contractor shall work with the City Manager in identifuing and resolving continual problems with overflowing Bins or Bin enclosures, and/or other unsanitary conditions caused by Customers. Contractor shall clean out any overflowing Bins or Bin enclosures within City within twenty-four Q$ hours of notification by City (Sundays and holidays excepted). Contractor shall create a specific work order in response to each call received from City and shall provide City with an annual "Summary of Clean Out Item Work Orders Completed." Such summary shall include, but not be limited to, the date, time, hours spent, and types of items Collected. Contractor may charge the Customer an Overage charge or and Enclosure Steam Cleaning charge in an amount that does not exceed the maximum rate as set forth in the attached Exhibit A. Page 33 of1l0 Final Draft January 29,2020 8.4 Other Collection Programs As May Be Required by Law In the event CalRecycle, or any federal, state, or local law or regulation, imposes upon City or Contractor a requirement for the implementation of any program for the Collection of any waste material (whether or not meeting the definition of Solid Waste hereunder) not already covered by this Agreement, whether Commercial or Residential in nature, Contractor shall design and present a program to City to comply with such requirement, which program shall meet the City Manager's reasonable approval. Except with respect to programs which are required due to Contractor's failure to achieve the diversion requirements set forth herein (resulting from Contractor's own actions and not resulting from changes in disposal or recycling option), at such time as (if) any such program is implemented, Contractor and City shall meet and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A in order to compensate Contractor for developing and implementing such a program as set forth in Section 24.5 of this Agreement. Contractor shall not be responsible for any fines or penalties arising from City's failure or refusal to implement such programs developed by Contractor. 8.5 Roll Out Service Certain Premises within the City Limits require Contractor to move a Bin in order to service the Bin ("Roll Out Service"). Contractor may charge said Premises for the Roll Out Service where Contractor is required to move a Bin more than twenty-five (25) feet. Contractor may charge rates for such Roll Out Service which shall not exceed the maximum rates set forth in the attached Exhibit A. 8.6 Stable Collection Contractor shall provide any Customer, who so requests, with Roll off Boxes, Bins, or Carts, as appropriate, for the Collection of horse manure and bedding at rates that do not exceed the maximum rates set forth on Exhibit A, and shall Collect all such materials placed therein for Collection not less than once per week. The size of Containers utilized, and the frequency of their Collection, shall be mutually agreed upon by Contractor and its Customers (except that Collection shall occur not less than one time per week), and City shall have the right to impose minimum requirements for the number of Roll off Boxes, Bins, or Carts, as well as their sizes, and more frequent Collection should it determine such action is needed to protect the public health, safety and welfare. Contractor shall deliver all Collected Stable Matter to a properly licensed facility that will compost or process Stable Matter in a method that will provide the City with diversion credit under AB 939, AB 1594, AB 1826, and SB 1383. At its option and with written notice to Contractor, City may identify the licensed facility that will compost or process Stable Matter in a method that will provide the City with diversion credit under AB 939, AB 1594, AB 1826, and SB 1383. The Parties shall meet and confer upon receipt of such notice to determine whether the maximum rates for such services should be increased or decreased to reflect Contractor's incteased or decreased costs of Collecting Stable Matter. If maximum rates will be decreased, Contractor shall immediately decrease such rates and deliver Stable Matter to the new facility. If maximum rates will be increased, Contractor shall begin delivering Stable Matter to the new facility upon the completion of any process directed by City to implement increased maximum rates. Page34 of 110 Final Draft January 29 2020 8.7 Temporary Services Contractor shall provide Temporary Services on an on-call basis to any Customer requesting such service pursuant to the following conditions: (A) Bins and Roll off Boxes utilized in connection with Temporary Services shall meet the minimum standards set forth herein and Containers shall be delivered within twenty-four (24) hours of a call for such service, excepting Sundays and holidays. (B) No charges excepting rates not exceeding the maximum rates set forth in the attached Exhibit A related to Bins or Roll off Boxes utilized in connection with Temporary Services shall be imposed by Contractor, unless approved in accordance with Section 8.10 (Special Services). (C) City has in place an ordinance regulating the recycling and disposal of Construction and Demolition Debris, and Contractor agrees to comply with all applicable provisions thereof. The Customer shall be responsible for the costs of disposal of such waste at rates that do not exceed the maximum rates as set forth in the attached Exhibit A. 8.8 (D) In addition to complying with any other requirements of the City's ordinance regulating Construction and Demolition Debris, Contractor shall make all reasonable efforts to recycle all Construction and Demolition Debris it Collects, especially to the degree such loads contain clean inert materials. Towards this end, Contractor shall make available to Customers involved in construction separate Containers within which to Collect different types of marketable materials, such as dirt, steel, concrete and wood' Recycling Oblieations and Public Education Program 8.8.1 Minimum Reo for Collection of Recvclable C)rsanic Waste. and Stable Bedding Containers Contractor shall utilize a truck dedicated for the purpose of Collecting Organic Waste from Customers, such that Organic Waste which has been separated prior to Collection, once Collected, is not commingled with Refuse or Recyclable Material. Similarly, Contractor shall utilize a truck dedicated for the purpose of Collecting Recyclable Material, such that Recyclable Material Collected in Recyclables Carts or Recyclables Bins, once Collected, is not commingled with Refuse or Organic Waste. All Recyclable Material separated prior to Collection and thereafter Collected by Contractor pursuant to this Agreement shall be delivered to a properly permitted facility for recycling and reuse purposes. All Organic Waste separated prior to Collection and thereafter Collected by Contractor pursuant to this Agreement (including specifically materials Collected in Organic Waste Containers, Stable Bedding Containers, and Holiday Trees) shall be delivered to a properly permitted facility for recycling, mulching, composting, or alternative uses for which diversion credit is provided as may be approved by CalRecycle. Contractor shall be responsible for implementing programs which will divert Recyclable Material, Organic Waste, and Stable Bedding from disposal in order to meet the diversion requirements of this Agreement. All Roll off Boxes, whether for Commercial Premises or Temporary Service shall be delivered to a properly permitted facility for recycling and reuse purposes. Page 35 of 1 10 Final Draft January 29,2020 8.8.2 Extent of Applicable Franchise Rights Nothing in this Agreement shall be construed as giving Contractor the right to Collect Recyclable Material which has not been discarded and placed for Collection by Contractor in the location designated for that purpose. AB 34I AB Indemnification 8.8.3.1 Warranties and Representations Contractor warrants and represents that it is aware of and familiar with City's Source Reduction and Recycling Element (the "SRRE"), that it is familiar with City's waste stream, and that it has the ability to and will provide sufficient programs and services to ensure City will meet or exceed the diversion goals (including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set forth in AB 939, AB 341, AB 1594, AB 1826, and SB 1383 and all amendments thereto. Contractor shall do so without imposing any costs or fees in an amount not to exceed the maximum rate as set forth in the attached Exhibit A. 8.8.3.2 Mutual Cooperation City and Contractor shall reasonably cooperate in good faith with all efforts by each other to meet City's diversion and other compliance requirements imposed by AB 939, AB 341, AB 1594, AB 1826, and SB 1383 and other Applicable Law. In this regard, City's obligations shall include, without limitation, making such petitions and applications as may be reasonably requested by Contractor for time extensions in meeting diversion goals, or other exceptions from the terms of AB 939, AB 341, AB 1594, AB 1826, and SB 1383 and other Applicable Law and reasonable consideration of programs (and associated costs) offered by Contractor as set forth in Section 8.4. 8.8.3.3 Waste Reduction and sram Imolementation Contractor shall implement the programs identified in the SRRE and Household Hazardous Wastes Element ("HHV/B") immediately upon the Effective Date hereof, and will implement any programs required by any amendments or modifications thereto upon approval of any cost increases. Contractor shall employ a Person as a recycling coordinator whose responsibilities will be to implement the programs identified in the SRRE and HHV/E. Contractor shall provide City with monthly, quarterly and annual written reports in a form adequate to meet City's AB 939, AB 341, AB 1826, and SB 1383 related filing and reporting requirements to CalRecycle and to the County of Orange throughout the Term of this Agreement wherein City's performance under the above programs shall be set forth in detail. Contractor shall be responsible to prepare, or assist City with the preparation of, all reports and other information as may be required by any agency, including specifically, the State of California, in order to comply with AB 939, AB 341, AB 1826, and SB 1383. 8.S.3.4 Minimum Diversion Requirements' City requires Contractor to assist City in complying with CalRecycle diversion standards asdescribedinSections8.8.3.5and8.8.3.6below. ContractormustprovidedocumentationtoCity 8.8.3 1 3 Obli Page36 of 110 Final Draft January 29,2020 within forty-five (45) days of the end of each calendar year stating and supporting that calendar year's diversion rate as set forth in Section 8.8.3.5 below. Contractor's Sustainability and Diversion Plan is outlined in Exhibit G. (A) If City fails to comply with CalRecycle diversion standards due to Contractor's failure to implement the Franchised Diversion and public education programs provided for in this Agreement (unless such failure is the result of forces outside the control of Contractor or the result of City's failure or refusal to implement programs proposed by Contractor) and Contractor fails to achieve a minimum annual Franchised Diversion Rate as described in Section 8.8.3.5, Contractor must submit a Corrective Action Plan to assist City to comply with Section 41780 and other Applicable Laws, by May 15th follo\Ã/ing the year the diversion requirements were not met. Contractors Corrective Action Plan is subject to approval by the City Manager, and to be approved must constitute a good faith corrective action plan to allow City to comply with Public Resources Code section 41780 and other Applicable Laws. Implementation of the corrective action plan will be at Contractors' sole cost and expense. If Contractor fails to submit a corrective action plan acceptable to the City, Contractor may be subject to Liquidated Damages as specified in this Agreement. Provided that Contractor has implemented all required Contractor diversion and public education programs required under this Agreement, and has submitted a corrective action plan acceptable to the City, Contractor's failure to meet the Franchised Division requirements under Section 8.8.3.5 shall not constitute an event of default under this Agreement. (B) If Contractor fails to meet its Franchised Diversion requirements or if City fails to comply with CalRecycle diversion standards, and Contractor has implemented all required Contractor diversion programs, the City may direct Contractor to modifu its programs, or implement new diversion programs. Any such modification of Contractor's existing diversion programs or addition of new diversion programs done at the City's request would be in accordance with Section24.5' (C) Notwithstanding any other provision of this Agreement to the contrary, where CalRecycle has determined that there are no commercially viable markets for a specific type of Recyclable Materials, and with written notice to City, Contractor is unable to identif,' a market for one or more Recyclable Material despite the exercise of commercially reasonable efforts to'process and market the material, and determines, in the interest of safeguarding public health, to dispose of the Recyclable Material, such a determination shall not constitute a failure to implement service, a failure to implement a program, or an event of default hereunder. 8.8.3.5 Diversion Rate Calculation. For purpose of determining whether Contractor has met its diversion requirements under this Agreement. City and Contractor agree the diversion rate will be calculated using the following formula: "City's Pounds Per Person Per Day disposal Page37 of 110 Final Draft January 29,2020 øllowance divided by the Pounds Per Day generated in each Calendar Year." 8.8.3.6 Contractor's Diversion Requirements. For purposes of this Section AS:¡tr" Citys diversion rate is calculated by CalRecycle and must meet or exceed the diversion requirements of the Applicable Laws, including AB 939, AB 341, AB 1826, AB 1594, SB 1016, SB 1383, and all amendments and related subsequent legislation including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements, and that it will do so without imposing any costs or fees other than those set forth in Exhibit A, except as provided in Section 24.5. Contractor's Franchised Diversion requirements shall be deemed not to be met if City diversion rate does not meet CalRecycle minimum requirements. Contractor warrants that it is aware of and familiar with City's Solid Waste stream, and that it has the ability to and must provide sufficient programs and services designed to ensure City will meet or exceed the diversion requirements as set forth in this Section, as well as the diversion requirements of the Applicable Laws. 8.8.3.7 Guarantee and Indemnification Contractor warrants and guaranties that it will carry out its obligations under this Agreement such that: (i) assuming reasonable City cooperation, both it and City will at all times be in compliance with the requirements of all Applicable Law including specifically AB 939 and AB 341, and (ii) City will meet or exceed the diversion requirements (including, without limitation, providing collection and processing services as required in this Agreement, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set forth in AB 939, AB 341, AB 1826, AB 1594, SB 1016, and SB 1383 and all amendments thereto. In this regard, Contractor agrees that it will, in addition to any other requirement contained herein, at its sole cost and expense: (A) to the extent legally permitted, defend, with counsel acceptable to City, indemniff, and hold harmless City and City's officials, employees, and agents from and against all fines andlor penalties and other liabilities which may be imposed by CalRecycle or any other regulatory agency if: (1) Contractor fails or refuses to timely provide information relating to its operations which is required pursuant to this Agreement or any Applicable Law and such failure or refusal prevents or delays City from submitting reports required by Applicable Law in a timely manner; or (2) the source reduction and recycling goals, diversion goals, progr¿ìm implementation requirements, or any other requirements of Applicable Law are not met with respect to the waste stream Collected under this Agreement; (B) assist City in responding to inquiries from CalRecycle; Page 38 of 1 10 Final Drafi January 29,2020 (C) assist City in preparing for, and participating in, any review of City's SRRE pursuant to Applicable Law; (D) assist City in applying for any extension, including under Public Resources Code section41820, if so directed by City; (E) assist City in any hearing conducted by CalRecycle relating to City's compliance with Applicable Law; (F) assist City with the development of and implement a public awareness and education program that is consistent with the City's SRRE and HHWE, as well as any related requirements of Applicable Law; (G) provide City with recycling, source reduction, and other technical assistance related to compliance with the Applicable Law; (H) defend, to the extent allowed by law, with counsel acceptable to City, City and City's offrcials, employees, and agents against the imposition of fines and/or penalties, or any other liabilities, issued by CalRecycle pursuant to AB 939, AB 341, AB 1826, and sB 1383; (I) be responsible for and pay any fees, penalties or other costs imposed against the City by CalRecycle, and to extent legally permitted indemni$ and hold harmless City from and against any fines, penalties, or other liabilities, levied against it for violation of AB 939's, AB 341's, AB 1826's, and SB 1383's diversion requirements, or violation of any other provision of the Applicable Law, arising from or in any way related to Contractor's performance of its obligations under this Agreement, but not include those arising from City's unreasonable failure or refusal to implement programs offered by Contractor; 8.S.4 Waste Generation/Characterization Studies Contractor acknowledges that City may be required to perform Solid Waste generation and disposal characterization studies periodically to comply with the requirements of AB 939 and SB 1383. Contractor agrees to perform such studies if required by City and further to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes of Solid \ù/aste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/processed to satisff the requirements of AB 939 and SB 1383. S.8.5 Implementation of Additional Diversion Services In the event City does not meet the diversion, program, and reporting requirements imposed by AB 939, AB 341, AB 1826, and SB 1383 with respect to all waste generated in City, City may direct Contractor to perform additional services (including the implementation of new diversion programs) or modify the manner in which it performs existing services, and Contractor agrees to do so at such cost as approved pursuant to Section 24.5. Pilot programs and innovative services which may entail new Collection methods and the use of new or altemative waste processing and disposal technologies are included among the kinds of changes which City may direct. Page 39 of 1 10 Final Draft January 29,2020 8.9 Additional Services As part of the consideration for entering this Agreement, Contractor shall provide the following additional services at no charge, and shall not adjust its rates to Customers to offset costs incurred in providing any of the following services: 8.9.1 Collection From Citv ldinss and Facilities Contractor shall, free of charge, provide Refuse, Recyclables, and Organic 'Waste Collection services to all City buildings, facilities, parks located within the City. Contractor will provide Collection in the same manner and on the same terms and conditions as service provided to Commercial Customers and City shall comply with the requirements for such Commercial Customers. Such services explicitly exclude the removal of Construction and Demolition Debris for City projects. 8.9.2 Public Service Calls F Citv Deoartments Contractor shall, free of charge, respond to calls from City's Maintenance and Code Enforcement Divisions and from its Police Department, to provide Containers and dispose of Bulky Items and other Solid Waste as a result of illegal or unauthorized dumping, or other Code enforcement matters, occurring within City. Contractor agrees that if requested to provide such services in connection with abatement activities for which reimbursement is sought from the property owner by City through abatement liens or otherwise, Contractor will provide billing information sufficient for City to include it in its liens, and Contractor will be paid at such time as the abatement lien is paid, or reimbursement is otherwise obtained by City from the property owner, plus pro rata interest and penalties that do not exceed the maximum rates and fees set forth in Exhibit A. Upon receipt of a call for service from City made pursuant to this Section, Contractor shall advise City within four (4) hours as to when service will be provided, and unless otherwise agreed by City, service shall be provided within twenty-four (24) hours' 8.9.3 Collection at Cit)¡ Sponsored Events Contractor shall provide Refuse, Recyclable Material, and Organic Waste Collection at all City-sponsored or supported non-profit events. The number, type and service requirements for these events may vary from year to year. This service shall include providing servicing and storing Containers (cardboard boxes, Carts, Bins, and/or Roll off Boxes), and Collecting, processing and Disposing of all Solid Waste Collected in a manner that complies with all other provisions of this Agreement, and the Applicable Law, including those related to diversion. Contractor shall provide these services for up to twenty (20) 36 cubic yard Roll off Boxes per calendar year at no cost to City; provided, however, Contractor shall be responsible for paying landfill tipping or material recovery facilities handling fees associated with such services. S.9.4 Recvclins and C)rsanic Waste Assistance for Snecial Events Contractor shall assist Persons designated by City (whether City employees or private individuals) who are responsible for coordinating special events or events in large venues (such as concerts or sporting events) in the implementation of recycling programs. Customer or event planner, or upon request from either of them, Contractor, shall be responsible for preparing and Page 40 of 1 10 Final Draft January 29,2020 submitting to City a "waste reduction and recycling plan" prior to such events. Contractor shall submit to Customer detailed reports within 30 days of the event outlining the Solid Waste Collected, and diverted, and Contractor shall include this data in its Annual Reports to City. Notwithstanding the foregoing, Contractor may charge for refuse boxes, recycle boxes, box liners, and other containers Contractor provides for said special events at rates that do not exceed the maximum rates set forth on Exhibit A. 8.9.5 Holiday Trees For the first two regularly scheduled pickup days after New Year's Day, Contractor shall, free of charge, pick up all Holiday Trees placed out for Collection by Customers. Such trees shall not be comingled with other Solid Waste and shall be delivered to a proper facility for processing, rather than disposal, as required by the provisions hereof. All ornaments and other decorations shall have been removed from the Holiday Trees. 8.9.6 Services for Public Trash and Recvclables Cans Alone S and at Bus Stoos Contractor shall provide appropriate Containers for the Collection of Solid V/aste at City bus stops, and public righfof-ways throughout City in areas agreed upon in writing between Contractor and City (both "Public Refuse Cans" and "Public Recyclables Cans"). Contractor shall, free of charge, provide Collection services for said Public Trash Cans and Public Recyclables Cans on a schedule to be submitted to the City Manager for approval. City may change the schedule for the forgoing services to be provided at Public Trash Cans and Public Recyclables Cans. Contractor shall service a minimum of 3 10 locations, collected from three (3) to six (6) times per week. A list of the locations and service days for Public Trash Cans and Public Recyclables Cans shall be updated and included in the annual report and provided to the City upon request. 8.9.7 Dirt Disposal Contractor shall allow City to deliver clean (non-contaminated) dirt from City streets and utility repair operations to Contractor's Material Recovery Facility, as long as the OC Waste and Recycling Department accepts dirt for daily cover at their landfills. City shall be charged the current processing rate for the facility for any load that has contaminated Solid Waste, concrete, asphalt, wood or other materials other than clean dirt. S.9.8 Free Disposal and Processins of Citv Deli vered Waste Contractor shall provide City with free disposal and processing, at Contractor's south Orange County Materials Recovery Facility, or other CR&R designated facility as approved by the City, of waste generated within City Limits and delivered from City owned and operated vehicles, or authorized contracted vehicles. This waste may include Green Waste from City authorized Public Works operations, as well as street sweeping debris from City's contracted services. Such waste shall be limited to 1,000 tons per year, plus an additional 2Yo increase per year, atno charge to City. Contractor may reject loads or charge for processing in the event current local, state, or federal regulations result in an increase in fees, rates, or eventual uses of the delivered waste. Should such waste be prohibited from use as alternative daily cover at local landfills at the current no charge rate, Contractor and City agree to negotiate in good faith to Page 4l of 110 Final Draft January 29,2020 determine an alternative use and corresponding cost of diversion or reimbursement to Contractor for the end costs of the delivered waste as set forth in Section 24.5 of this Agreement. 8.10 Special Services Contractor may provide special pickup procedures or services in addition to the services described herein for Customers who request or require such services at reasonable rates established by Contractor, which rates are subject to approval by the City Manager. Contractor shall notifz the City Manager of any such services prior to such time as they are provided in order to allow the City an opportunity to conduct necessary inspections, review the proposed rate, and impose appropriate regulations. 8.11 Non-ProfitAssistance Contractor shall provide Roll off Boxes or Bins to any qualified or certified non-profit group, (e.g., Boy Scouts, Girl Scouts, Boys' and Girls' Clubs, churches, Earth Clubs, etc.). Contractor shall not charge such groups rates in excess of Contractor's actual transportation costs incurred in dropping off and picking up the Containers; provided, however, Contractor shall impose no charge for this service unless the non-profit group receives a monetary payment from recycling the materials Collected in the Containers and such proceeds exceed Contractor's actual transportation costs. Contractor shall appropriately dispose of or divert any Refuse, Recyclable Material, or Organic Waste Collected pursuant to this Section. SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID \ryASTE HANDLING SERVICE COLLECTION VEHICLES 9.1 General Contractor shall provide vehicles for the Collection of Solid Waste ("Collection Vehicles") that are sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Contractor shall have available on Collection days sufficient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. Upon or prior to the Effective Date of this Agreement and prior to the start of any extension period of this Agreement pursuant to Section 6, Contractor shall provide City with a report containing the information required under South Coast Air Quality Management District's Rule 1193(dX7). 9.2 AirQualit)¡/FuelRequirements Contractor's Collection Vehicles shall comply with all rules and regulations of the South Coast Air Quality Management District, the Air Resource Board, and any other regulatory body that may be in effect during the Term of this Agreement, as well as other federal, state and local laws and regulations that may be enacted during the Term of this Agreement. Contractor's Collection Vehicles shall meet or exceed such air quality standards as may be adopted by the forgoing regulatory bodies during the Term. Contractor's Collection Vehicles shall comply with the requirements in the South Coast Air Quality Management District's Rule 1193. Page 42 of 110 Final Draft January 29,2020 9.3 SpecificRequirements Each Collection Vehicle utilized by Contractor in the performance of this Agreement shall meet the following minimum standards: (A) Each Collection Vehicle shall be registered with the Califomia Department of Motor Vehicles. (B) Each Collection Vehicle shall be inspected regularly by Contractor, and not less than once every other year, to ensure it meets the requirements of the California Vehicle Code and the California Highway Patrol. Contractor shall provide copies of its Biannual Inspection of Terminal ("BIT") inspection reports to City within 30 days of its receipt of such reports and shall make all records related to its Collection Vehicles, including Contractor's maintenance records, available to City upon request by the City Manager. It is the intention of this provision that all Collection Vehicles be inspected at least once per year -- every other year through a BIT inspection, and in alternative years at least once (if not more often) by Contractor. (C) Each Collection Vehicle shall be equipped with devices capable of covering every open section of the Collection Vehicle in which Solid Waste may be placed and, while operating upon the public rights-of-way, shall be covered so as to prevent any Solid Waste from falling or being blown or otherwise dislodged from the Collection Vehicle. (D) Each Collection Vehicle shall be continuously maintained so as to both: (1) meet the highest industry standards with regards to efforts to prevent liquid from leaking and to the degree possible ensure each Collection Vehicle is "watertight" and "leak-proof' and, (2) at all times comply with the provisions of all laws and regulations including the Vehicle Code and any applicable NPDES permit, with regard to materials leaking from Collection Vehicles. Contractor shall be responsible to promptly clean any spillage or Solid 'Waste that leaks or otherwise escapes the Collection Vehicle (E) Each Collection Vehicle shall be painted periodically, which shall include all necessary body work, and shall be regularly cleaned, so that such Collection Vehicles do not become unsightly, as determined by the City Manager. Each Collection Vehicle shall be painted with Contractor's colors and identi$zing information as required herein. (F) Contractor's name, local or toll-free telephone number, and a Collection Vehicle number shall be visibly printed or painted in letters not less than three inches in height on both sides of each Collection Vehicle. Any other information or signage printed, painted, or displayed on Contractor's Collection Vehicles, when such Collection Vehicles are providing Collection services within City Limits, shall be subject to approval by City. (G) Each Collection Vehicle shall be maintained in a clean and sanitary condition, both inside and out and shall be washed at least once every seven (7) calendar days. Page 43 of I 10 Final Draft January 29,2020 (H) Each Collection Vehicle shall carry a broom, shovel, and operable fire extinguisher, and shall be equipped with a communication device sufftcient to allow the driver to communicate directly with Contractor's dispatcher and/or main office. (D Each Collection Vehicle shall be kept in good repair and working order, and shall be equipped with appropriate safety equipment, including any new safety related technologies that become standard in the waste industry, and at a minimum shall have a video monitor based back-up system, or its equivalent. Contractor shall keep a sufficient supply of replacement parts and equipment on hand to ensure adequate vehicle maintenance and timely and continuous performance of the services contemplated by this Agreement. (J) Each Collection Vehicle shall be equipped with the so called "Smart System Technology" whereby Contractor can track the location of and services provided by each Collection Vehicle with a computer based monitoring system. Upon request from City, Contractor shall provide any available data from this system, such as route tracking information and similar datathatmay be useful in investigating Customer complaints. (K) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating properly. Contractor shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufacturer's specifications and schedule. Contractor shall repair, or alrange for the repair of, all of its Collection Vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. Contractor shall keep accurate records of all Collection Vehicle maintenance and repair, recorded according to date and mileage, including signed verifications that repairs and maintenance has been properly performed, and shall make such records available to City upon request. (L) No Collection Vehicle shall be utilized if it is leaking brake, hydraulic, or other fluids, and Contractor shall clean up any leaks or spills from their Collection Vehicles per the NPDES permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such cleanup efforts. (M) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement. This inventory shall list all equipment by manufacturer, ID number, date of acquisition, type and capacity. (N) Contractor shall utilize Collection Vehicles of a size, weight, nature, and type so as to not be unreasonably intrusive on the community with respect to noise, emissions, maneuverability, safety, and other factors and to avoid or minimize pavement damage and wear and tear of the street or adjacent properties, as approved by the City Manager. (O) Contractor shall not load Collection Vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local laws or regulations. Noise levels Page 44 of 110 Final Draft January 29,2020 of equipment used for Collection shall not exceed 75db (seventy-five decibels) when measured at a distance of twenty-five (25) feet from the Collection Vehicle, five (5) feet from the ground. 9.4 Costs of Operation and Damases Contractor shall be responsible for any costs incurred in connection with ensuring all Collection Vehicles comply with all Applicable Law, including without limitation, any such laws and regulations that may now exist or hereinafter be adopted relating to noise, fuels, emission standards, or weight limits. 9.5 Citv Inspection City may cause or require any Collection Vehicle used in performance of this Agreement to be inspected and tested at any time and in such manner as may be appropriate to determine that the Collection Vehicle is being maintained in compliance with the provisions of this Agreement. 9.6 Correction of Defects and of Vehicles from Iise within Citv Contractor agrees to immediately remove from service, and replace or repair, to the City's satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, unsafe, unsanitary, leaking, out of compliance with any law or regulation or this Agreement, or otherwise in an unsatisfactory operating condition; and any such Collection Vehicle shall not be returned to service until the City Manager gives his written consent for its return. SECTION 10. CONTRACTOR'S SOLID \üASTE HANDLING SERVICE PERSONNEL 10.1 Uniforms Each of Contractor's Collection employees shall wear a clean uniform bearing Contractor's name. 10.2 Identification of Employees Contractor shall provide business cards or similar devices, for all of its employees, and all authorized subcontractors, who may make personal contact with Customers. City may require Contractor to notify Customers yearly of the form of said identifìcation. 10.3 Driver's License Each employee operating a vehicle as part of his or her duties shall, at all times, carry a valid operator's license for the type of vehicle he or she is operating. All employees who may have contact with Customers in the course of performing their duties shall possess the ability to communicate effectively with Customers. Page 45 of 110 Final Draft January 29,2020 10.4 Screening of Field Employees Contractor shall make reasonable efforts to determine if its employees working in the field (i.e., drivers of Collection Vehicles, and ernployees otherwise involved in Collection at Customer Premises) have been convicted of a felony, and shall identify any such employees known to it to City. City shall have the ability to require that any employee so identified by Contractor not work in the field within City. 10.5 Discontinued Use of Unsatisfactory Employees No employee shall continue to have any involvement whatsoever with regard to any work in anyway relating to or arising from this Agreement if City gives notice to Contractor that such employee is determined by City to be discourteous, disorderly, inefficient, or otherwise objectionable (provided the term "otherwise objectionable" shall not permit City to "ban" an employee for reasons that violate public policy; and, further, City shall give a reason for requesting the "ban" of any employee from engaging in work related to this Agreement). 10.6 Traininq and Legal Compliance Contractor shall provide operating and safety training that meets minimum CaIOSHA standards for all personnel, and shall comply with all laws and regulations applicable to its employees and personnel. 10.1 Customer Servtce 10.7.I Office Hours Contractor shall maintain an office for communication with the public that at a minimum, will be open from 8:00 a.m. to 5:00 p.m. Monday through Friday and from 8:00 a.m. to 12:00 noon on Saturdays. At least one responsible and qualified representative of Contractor, capable of communicating in English and Spanish, shall be present and available during all times that an office is required to be open as noted above ("Office Hours"), for personal communication with the public regarding Billing, the payment of Bills, complaints, customer service inquiries, etc., and a similarly qualified Person shall be available for communication with the public by phone during any times other than Office Hours when Collection is occurring' 10.1.2 Telephone Customer Service Requirements 10.7.2.1 Toll Free Number Contractor shall maintain a toll-free telephone number that rings at an office within Orange County at all times during Office Hours. Both English and Spanish speaking personnel will be available during Office Hours to assist Customers with telephonic inquiries. Contractor shall have the ability (through the use of outside resources or otherwise) to communicate with Customers who only speak Spanish to ensure their inquiries, questions, complaints and other matters are dealt with in a reasonably timely fashion. All such personnel shall be polite and responsive, and shall be sufficiently knowledgeable, and have the authority to respond and/or advise Customers seeking assistance. Contractor's telephone system shall be adequate to handle the volume of calls typically Page 46 of 110 Final Draft January 29,2020 experienced on the busiest days. Contractor shall provide City with a 24-hour emergency number to a live Person, not voice-mail. 10.7.2.2 Call veness Contractor shall make reasonable attempts to answer all phone calls within five (5) rings. If a call has been placed on hold for three (3) minutes, the caller will either be switched to a message center which shall be responsible to obtain the caller's address and phone number, or a Customer service representative will obtain the Customer's address and a number at which the call can be returned. Contractor shall make at least three attempts within the next twenty-four (24) hour period to return the call, with the first such attempt not more than one (1) hour after the caller leaves the message. If Contractor is unsuccessful in contacting the Customer after following this procedure, it shall send a letter to the caller indicating its efforts. I0.7.3 Complaint Documentation All service complaints shall be directed to Contractor. Contractor shall log all complaints received and said log shall include the date and time the complaint was received, the name, address and telephone number of the complainingparty, a description of the complaint, the name of the employee recording the complaint and the action taken by Contractor to respond to and remedy the complaint. All written Custom.er complaints and inquiries shall be date-stamped when received. All complaints shall be initially responded to within one (1) business day (Monday through Friday) of receipt. Contractor shall log action taken to respond to and remedy the complaint. Daily logs of complaints shall be retained for a minimum of twenty-four (24) months. All Customer service records and logs kept by Contractor shall be available to City upon request. City shall, at any time during regular Offrce Hours, have access to Contractor's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. Contractor shall provide to City on a monthly, quarterly, and annual basis, a complaint log, in a form satisfactory to the City, that includes all of the complaints logged pursuant to this Section, the complainant and the resolution. I0.1.4 Resolution of Customer Complaints Disputes between Contractor and its Customers regarding the services provided in accordance with this Agreement may be resolved by the City. The City's decision shall be final and binding. Should Contractor and Customers not be able to establish a mutually acceptable fee to be charged for special services as set forth in Section 8.10, the matter shall be dealt with pursuant to this Section, be determined by the City, and the City's decision shall be final. Intervention by the 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. 10.7.5 Govemment Liaison Contractor shall designate in writing a "Government Liaison" who shall be responsible for working with City at'rdlor City's designated representative(s) to resolve Customer complaints. City shall have the right to approve Contractor's choice for a liaison. Page 47 of 110 Final Draft January 29,2020 10.8 Community Outreach and Education 10.8.1 General Contractor acknowledges and agrees that education and public awareness are critical, key and essential elements of any efforts to achieve the requirements of AB 939, AB 341, AB 1826, SB 1383, and all subsequent legislation. Accordingly, Contractor agrees to exploit opportunities to expand public and Customer knowledge conceming needs and methods to reduce, reuse and recycle Solid Waste and to cooperate fully with City in this regard. Contractor's shall comply with the Source Separation Program Implementation Plan included as Exhibit F, the Sustainability and Diversion Plan included as Exhibit G, and the Community Outreach and Education Plan included as Exhibit H. 10.8.2 Sustainabilit)¡ Representative. Contractor shall provide one (1) halÊtime equivalent Sustainability Representative dedicated to promoting high participation by Customers and high diversion from disposal for Contractor's provided Recyclables and Organic Waste programs, including conducting site visits and provide outreach and education in support of meeting Franchise and CalRecycle Diversion requirements and to meet State mandates associated with AB 939, AB 341, AB 1826, AB 1594, SB 1016, and SB 1383, and all amendments and related subsequent legislation. Contractor's Sustainability Representative shall be responsible for implernentation of the Source Separation Program Implementation Plan included as Exhibit F, the Sustainability and Diversion Plan included as Exhibit G, and the Community Outreach and Education Plan included as Exhibit H. Contractors' Sustainability Representative shall be available as needed to meet with the CITY, andlor the City's designated representative, Orange County staff, and CalRecycle representative. Contractor shall maintain a program of providing information relevant to the need and the methods to reduce, reuse and recycle Solid Waste, and Contractor upon request from City, may include such information along with Bills provided to Customers. All public education materials shall be provided in English and Spanish, and approved in advance by City. Contractor shall keep a record of all promotional and public education materials utilized, and shall provide quarterly reports summarizing its public outreach and education efforts. 10.8.3 Public Outreach At a minimum, Contractor shall conduct school assemblies and promote recycling through presentations and educational materials to the Chamber of Commerce, homeowners associations, construction contractors and other civic groups. Contractor shall also provide articles on recycling for local newsletters. 10.8.4 On-goine Education Requirements In order to promote public education, in addition to any other materials it develops, Contractor shall create the following public education materials and programs at its expense, which will be distributed as indicated below. All of these materials and programs shall be produced andlor available in both English and Spanish languages, and all written materials shall be approved Page 48 of 1 10 Final Draft January 29,2020 by City in advance of distribution, and shall bear the City seal, unless otherwise approved by the City. 10.8.4.1 Annual Notices Not less than once each year during the Term of this Agreement, Contractor shall prepare and distribute to each Customer a brochure providing relevant information about Contractor's services, including, at a minimum: information regarding access to and use of available services; Collection schedules; holiday Collection schedules; Contractor's Customer service numbers; procedures to begin and terminate services; and information promoting and explaining available programs, such as Split Bin Collection, Source Separated Recyclables Collection, Source Separated Organic Waste Collection, Holiday Tree and Bulky Item Collections, the availability of Household Hazardous Waste and E-waste Collection, and the properhandling and disposal of such wastes. 10.8.4.2 How-To Brochure Contractor will prepare and distribute a brochure packet to new Customers when they start service. This packet will contain updated information on how to use the Contractor-provided Carts, when, where and how to place Solid Waste for Collection, and who to contact with service or Billing questions. 10.8.4.3 Corrective Action Notice Contractor shall develop a coffective action notification form for use in instances where a Customer sets out inappropriate materials for Collection, that explains the appropriate manner for disposal of such items. 10.8.4.4 Contractor Representative Contractor shall retain on its staff an individual who shall as part of his or her job function routinely visit civic groups, school assemblies, and homeowners' associations, to promote and explain the recycling options and other programs that Contractor offers, and participate in demonstrations and civic events. 10.8.4.5 Web Site Page Contractor shall dedicate one page of its web site to City services, which shall include at least the following information: a listing of contact numbers for Customer Service; information on Bulky Items Collection; Collection schedules, including holiday schedules; and the procedures to begin and terminate services. During the first six months following the implementation of new services hereunder, this web page shall also provide information explaining the new service, and the proper use of Carts. Page 49 of 1 10 Final Draft January 29,2020 SECTION 11. CONTRACTOR'S CONSIDERATION In addition to any other consideration set forth herein, as part of its consideration for entering this Agreement, and for the exclusive franchise, right and privilege to provide Solid Waste Handling Services within City as specified herein Contractor shall provide the following: 11.1 Reimbursement of Negotiation Costs Contractor shall pay to City a one-time lump sum payment ofTwo Hundred Fifty Thousand Dollars ($250,000) to reimburse the City for its out-of-pocket costs (including specifically consultant and legal fees) incurred in connection with the negotiation and ultimate award of this Agreement. Contractor shall make such payment within thirty (30) days of execution of the Agreement. II.2 Administrative Cost Reimbursement On or before July l, 2020, and on or before July 1 each year thereafter, Contractor shall make a payment to City in the amount more fully set forth in this paragraph intended to defray its administrative costs related to this Agreement (the "Administrative Cost Reimbursement"). The amount of the annual Administrative Cost Reimbursement shall be Seventy-Five Thousand Dollars ($75,000.00) fadjusted annually by the change in the Consumer Price Index for the 12 month period ending the preceding December 31, for All Urban Consumers, CUUSS49ASAO not seasonally adjusted, all items index (CPI-U) - Los Angeles-Long Beach-Anaheim averagel. If any Administrative Cost Reimbursement payment is not paid by Contractor within 10 days of due date, and in addition to any other remedy provided by law, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) per month, or portion thereof, of the amount owing until paid. 1 1.3 AB 939 Suooort Outreach Pavment On or before July 1, 2020, and on or before July 1 each year thereafter, Contractor shall make a payment to City in the amount more fully set forth in this paragraph intended to defray its administrative costs related to City support and outreach to ensure compliance with AB 939 and other Applicable Law (the "AB 939 Support and Outreach Payment"). The amount of the annual AB 939 Support and Outreach Payment shall be One Hundred Thousand Dollars ($100,000.00) fadjusted annually by the change in the Consumer Price Index for the 12 month period ending the preceding December 31, for All Urban Consumers, CUUSS49ASA0 not seasonally adjusted, all items index (CPI-U) - Los Angeles-Long Beach-Anaheim averagel. If any AB 939 Support and Outreach Payment is not paid by Contractor within 10 days of due date, and in addition to any other remedy provided by law, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) per month, or portion thereof, of the amount owing until paid. Page 50 of 1 10 Final Draft January 29,2020 lI.4 Legislative and Regulatory Compliance Pavment On or before July 1, 2020, and on or before July I each year thereafter, Contractor shall make a payment to City in the amount more fully set forth in this paragraph intended to defray its administrative costs related to utilizing City staff or third parties to document and determine City compliance with Applicable Law (the "Legislative and Regulatory Compliance Payment"). The amount of the annual Legislative and Regulatory Compliance Payment shall be One Hundred Twenty-Five Thousand Dollars ($125,000.00) fadjusted annually by the change in the Consumer Price Index for the 12 month period ending the preceding December 3 1, for All Urban Consumers, CUUSS49ASAO not seasonally adjusted, all items index (CPI-U) - Los Angeles-Long Beach- Anaheim average]. If any Legislative and Regulatory Compliance Payment is not paid by Contractor within 10 days of due date, and in addition to any other remedy provided by law, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) per month, or portion thereof, of the amount owing until paid. 1 1.5 Franchise Fee I 1.5.1 Monthl]¡ Franchise Fee Contractor shall pay to City, a franchise fee equal to five percent (5%) of Contractor's annual Gross Receipts each year, or portion thereof, during the entire Term of this Agreement (the "Franchise Fee"). Said Franchise Fee shall be paid to City monthly on or before the thirtieth (30th) day of each month. Should any such due date fall on a weekend or holiday in which the City's business offices are closed, payment shall be due on the first day thereafter in which the City's business offices are open. The amount of each payment shall be equal to five percent (5%) of Contractor's Gross Receipts in the calendar month preceding the date payment was due. The Franchise Fee due hereunder shall apply to Gross Receipts of Contractor collected after the expiration of the Term hereof relating to Contractor's performance during the Term hereof. Franchise Fees shall be accompanied by a statement certified by an officer of Contractor attesting to the accuracy of the amounts paid, and setting forth the basis for their calculation in a manner acceptable to City. The Contractor and City agree that the Franchise Fee and other payments in this Section 11.5 are negotiated amounts that are reasonably related to the value of the rights granted to Contractor under this Agreement. 1 1.6 Services at Cit)¡ Facilities Contractor shall provide Solid Waste Handling Services (including specifically Collection, disposal and processing) at all Premises owned and/or operated by the City at no cost to City, and shall provide Containers for such routine service as City deems appropriate for each of its various Premises (i.e., Carts, Bins, or Roll off Boxes). Such services shall be provided for all existing City facilities included in Exhibit B, as they may be expanded from time to time, as well as all new or additional facilities acquired/constructed during the Term hereof at no additional cost. Such services explicitly exclude Construction and Demolition Debris pick-up and disposal unless paid for by the City or its construction/demolition contractor. Contractor shall carry out its obligations pursuant to this provision in a manner, and to a degree, approved by the City Manager. Page 51 of 1 10 Final Draft January 29,2020 SECTION 12. CHARGE FOR LATE PAYMENTS In the event Contractor fails to timely make any of the payments provided for in this Agreement (whether reimbursements, Franchise Fees, payments of funds collected in connection with Billing services, or otherwise), and unless disputed in writing by Contractor, Contractor shall pay to City, as additional consideration, a sum of money equal to five percent (5%) of the amount due. This amount is required in order to defray those additional expenses and costs incurred by City by reason of the delinquent payment including, but not limited to, the cost of administering, accounting for, and collecting said delinquent payment and the cost to City of postponing services and projects necessitated by the delay in receiving the revenue. In addition, any amounts not paid to City by Contractor within sixty (60) days of the due date shall be subject to interest in the amount of eighteen percent (l S%) per annum, or the maximum rate allowed by law if lesser, calculated on a daily basis for each day such sums remain past due. SECTION 13. CONTRACTOR'S BILLING SERVICES AND SYSTEMS 13.1 Billing Contractor shall provide services pursuant to this Agreement at rates it sets, charges to, and collects from Customers; provided, however, Contractor's rates shall not exceed those set forth in the attached Exhibit A, which sets out the maximum rates that may be charged by Contractor for the various different service options that may occur hereunder, as such maximum rates may be adjusted from time to time pursuant to the terms hereof. Contractor shall provide all Customers with itemized Bills, detailing charges for all services, including charges for late payments, as well as the period of service to which the Bill applies. Contractor acknowledges that it, and not Customers, is to pay a Franchise Fee, and the other fees noted herein to City as consideration for this Agreement. Accordingly, Contractor's Bills shall not include separate itemization of a "Franchise Fee," or other similar designation relating to fees which Contractor is required to pay to City. Contractor shall reproduce and include in any Billing, at no additional cost, one page informational "inserts" provided by City. Billings may be made on a quarterly basis in advance of services being provided for all Customers at Single Family or Multi-Family Dwellings utilizing Carts for Collection, and on a monthly basis in advance for all other Customers. Premises ordering service after the first of the month or canceling service prior to the end of the month shall be charged on a prorated per-pickup basis. l3.1.1 Susoension of Service Due to Non-Pavment Contractor may discontinue service to any Customer as set forth in this Section. Customers may be advised that account payments are due within thirty (30) days after the date of Billing. Contractor may notiôz Customers, using a form approved by the City Manager, that accounts are past due thirty-five (35) days after the initial invoice date, and thereafter may send a final reminder notice forty-five (45) days after the initial invoice date. Said forms shall contain a statement that services may be discontinued sixty (60) days from the date of the initial invoice if payment is not Page 52 of 110 Final Draft January 29,2020 made before that time. If payment is not made by the expiration of said sixty (60) day period, Contractor may discontinue service to that Customer upon the expiration of said sixty (60) day period. Contractor shall resume Solid Waste Collection on the next regularly scheduled Collection day for any Customer whose service is discontinued upon receipt of payment of delinquent fees and any related service restart charges in accordance with the maximum rates set forth in Exhibit A, or at such sooner time as directed to do so by City. Contractor may not charge for service during any period in which service was suspended. Any delinquent fees or service charges to be imposed in connection with delinquent accounts shall not exceed the maximum rates set forth in Exhibit A. A deposit equal to the maximum rate for one month's service as set forth on Exhibit A, as such rates may be amended from time to time, may be required of accounts which have been discontinued for non-payment prior to re-instituting service at such accounts. Notwithstanding the above, in the event of a Billing dispute and/or to avoid negatively impacting public health or safety, Contractor shall not suspend service to any Customer without the City's prior consent, and shall continue to provide service to any Customer if directed to do so by City without regard to the status of said Customer's account. Any deviation from this sample procedure shall be submitted for approval to the City Manager. 13.1.2 Unoccupied Premises During any time when Contractor is made aware that a Premises is unoccupied for more than forty-five (45) days, and Collection services are not provided by Contractor, Contractor shall not Bill such Premises for Solid Waste Collection. Contractor may remove its Containers from any Premises after being notified by a Customer that service is to be cancelled as a result of the Premises being unoccupied. The Customer at any such Premises shall be responsible to provide notice to Contractor to cease service due to a vacancy, as well as reasonable evidence pursuant to such guidelines as the City Manager is hereby authorized to develop, demonstrating the Premises was vacant for the period in question. Such Customers shall be entitled to a refund from Contractor for any amounts paid to Contractor for each thirty (30) day period during which the vacancy exists. Any Customer grievance regarding a claim that a Premises was unoccupied and received no service, and hence should not be Billed for a given period pursuant to this Section, may be appealed by the Customer to the City Manager whose decision shall be final. It is the intent of the Parties that a Contractor shall not be entitled to charge for services which are not needed or used. Accordingly, the time frame set forth in this Section is not intended to suggest that Contractor may Bill Customers for up to 45 days of service in situations in which no service is needed or used due to a vacancy. 13.2 Minimum Requirements for Billine Statements In addition to any other pertinent data, Billing statements mailed by Contractor shall be printed to contain the following information, and the language contemplated for compliance with this requirement shall be subject to the City Manager's approval: (A) A "statement date" indicating the date the Bill is generated and mailed. (B) For Residential Cart service: the service address associated with the account, the Billing address, an itemized quantity of each type of service the Customer receives, the maximum rate charged for each type of service, and the bar code associated with any Carts Page 53 of 1 10 Final Draft January 29,2020 located at the address when (if) available. Customers should be able to determine from the Bill the types of services they are receiving, and the rates charged for each individual service. (C) A notice to Customers that payments are due upon receipt of the Bill, and considered delinquent if not paid on or before the 30th days following the invoice date, an advisement of the date and time by which payments must be received in order to avoid delinquent fees (i.e., 4:00 p.m. on the 60th day following the statement date), and a notification of the amount of fees that will be imposed and the potential for service intemrptions if payments are not received by the specified date and time. (D) An advisement to Customers that payments can be made in the following manner: (1) by mailing payment to Contractor at such address as Contractor may designate; or (2) by automatic withdrawal from a checking account; or (3) by major credit card on-line (i.e., via the Internet) (E) An advisement that inquiries relating to Solid Waste Collection should be directed to Contractor, including an address, phone number and intemet site, for such inquiries. 13.3 Billine System 13.3.1 Computerization ofAccount Information Contractor shall provide and maintain, at its expense, computer equipment sufficient to operate pertinent computer programs and otherwise provide the services required by this Section. Contractor shall create, at its own expense, computer programs sufficient to operate a computerized Billing system, permanently maintain all account records and otherwise meet the requirements of this Section. 13.3.2 Minimum Computer Programming Requirements In addition to any other requirements set forth herein, the programs created by Contractor to operate and maintain the Billing system shall at a minimum be able to perform the following functions: (A) create a peffnanent record of any adjustment to a Customer's account; (B) work in connection with a backup system such that all Customer account data and records is protected from a computer failure and permanently preserved on not less than a daily basis; Page 54 of 1 10 Final Draft January 29,2020 (C) allow Customers to make payments on-line (i.e., via the Intemet) by a major credit card. 13.3.3 Billing Inquiries All Billing inquiries shall be entered into the computerized Billing system. Contractor's computer programs shall keep a peffnanent record of all Billing inquiries and all adjustments to Customer Bills resulting therefrom. 13.3.4 Distribution of Public Information If requested to do so by City, and at no charge to City, Contractor shall insert any printed material prepared by City into its Billing statements for delivery to its Customers. City shall not request Contractor to include any printed material in its Bills if such material is of a size, shape, or weight that would increase Contractor's postage costs or if such material does not fit into the envelopes utilized by Contractor to mail the Bills. Any printed material to be included in the Bills to be mailed by Contractor shall be provided to Contractor within a reasonable time in advance of Contractor's scheduled mailing date, such that the insertion of such material into Billing envelopes does not delay their scheduled mailing date. 13.4 Pa)¡ment.AccountingS)¡stems 13.4.1 Collection and Processins of Pavments 13.4.1.1 Accountins and ofFunds All payments received by Contractor shall be appropriately credited to Customer accounts, deposited in a bank account and accounted for in a businesslike manner utilizing generally accepted accounting principles. To facilitate audits and record keeping Contractor shall make all withdrawals from its bank accounts by check, ACH debit/credit or wire, regardless of whether the withdrawal is to provide funds to City, Contractor, or any permissible subcontractor of Contractor. Contractor may charge Customers for any returned checks at rates that do not exceed the maximum rates set forth on Exhibit A. 13.4.1.2 Allocation of Funds With respect to payments received from each Customer, unless a Customer specifically directs a different allocation, funds shall be allocated first to outstanding charges for Solid Waste Collection, then to any related delinquency fees or other administrative charges, up to the amount of any outstanding balance. Any overpayment shall be credited to future Bills in the same sequence, or retumed to Customers as appropriate. Contractor may charge Customers for any refunds issued, where said refund is not due to errors in accounting by Contractor, at rates that do not exceed the maximum rates set forth on Exhibit A. Page 55 of 1 10 Final Draft January 29,2020 SECTION 14. FAITHFUL PERFORMANCE 14.1 Surety Contemporaneously with execution of this Agreement, as security for Contractor's faithful performance of all obligations of this Agreement, Contractor shall provide a surety mechanism (the "Surety") as more fully defined below in the amount of Five Hundred Thousand Dollars ($500,000.00). The Surety may be comprised of either a performance bond or an irrevocable letter of credit, or a combination of both. If a letter of credit is utilized to satisfy some or all of the Surety requirement, it shall be drawn upon a financial institution of a financial strength satisfactory to the City Attorney which has an office within one hundred (100) miles of City and otherwise in a form acceptable to the City Attorney. The performance bond, if any, shall be issued by a duly authorized corporate surety company authorized to do business in California, and in a form acceptable to the City Attorney for the City. The cost of the Surety shall be the sole responsibility of Contractor. The Surety shall be released within thirty (30) days after both (i) the expiration of the Term of this Agreement and (ii) Contractor's satisfactory performance of all obligations hereunder. l4.l.l Forfeiture of Surety In the event Contractor shall for any reason (except as otherwise provided in this Agreement) become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the Surety, as may be necessary to recompense and make whole the City, forfeited to the City. Upon partial or full forfeiture of the Surety, Contractor shall restore the Surety to its original amount within thirty (30) days of the City's notice to do so. Failure to restore the Surety to its full amount within thirty (30) days shall be a material breach of this Agreement. 14.1.2 Use of Surety by Cit)' Notwithstanding any provision hereof to the contrary, thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, either the letter of credit or performance bond comprising the Surety may be utilized by City for purposes including, but not limited to: (1) Payment of sums due under the terms of this Agreement which Contractor has failed to timely contest or pay to City, including specifically liquidated damages; (2) Reimbursement of costs borne by City to correct violations of this Agreement not corrected by Contractor and notice and a cure period. r4.2 Letter of City may draw upon the entire letter of credit (if any) utilized to meet Contractor's obligations pertaining to the Surety, and convert it to a cash deposit, if Contractor fails to cause the letter of credit to be extended or replaced with another satisfactory letter of credit no later than sixty (60) days prior to its expiration. Page 56 of 1 10 Final Draft January 29,2020 SECTION 15. INSURANCE COVERAGE Contractor shall procure and maintain during the entire Term of this Agreement the following types of insurance, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor's performance hereunder or the actions or inactions of any of Contractor's officers, agents, representatives, employees, or subcontractors in connection with Contractor's performance. The insurance requirements hereunder in no way limit Contractor's various defense and indemnification obligations, or any other obligations as set forth herein. 15.1 Minimum Scope of Insurance Coverage shall be at least as broad as: (A) 1. The most recent editions of Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 00 01). (B) 2. The most recent editions of Insurance Services Office form number CA 00 0l 1001 covering Automobile Liability, code 1 "any auto". (C) 3. Workers'Compensation insurance as required by the Labor Code of the State of Califomia and Employers Liability insurance. 15.2 Minimum Limits of Insurance Contractor shall maintain in force for the Term of this Agreement limits no less than: t5.2.1 Comorehensive General Liahilitv Ten Million Dollars ($10,000,000.00) limit aggregate and Ten Million Dollars ($10,000,000.00) limit per occuffence for bodily injury, personal injury and property damage. Such limits can be achieved through a combination of primary and excess liability policies. 15.2.2 Automobile Liability Ten Million Dollars ($10,000,000.00) limit aggregate and Ten Million Dollars ($10,000,000.00) limit per accident for bodily injury and property damage. Such limits can be achieved through a combination of primary and excess liability policies. 15.2.3 Workers 'ComDensation anrl Emnlovers Liabilitv Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of One Million Dollars ($1,000,000.00) per accident. 15.3 Deductibles and SelÊInsured Retentions Any deductibles or selÊinsured retentions must be declared to and approved by City. If, in the reasonable opinion of the City, Contractor does not have sufficient financial resources to Page 57 of 1 10 Final Draft January 29,2020 protect the City from exposure with respect to any deductibles or selÊinsured retentions Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 15.4 Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provision: 15.4.1 General Liabilit), and Automobile Liability Coverase City and its elected and appointed officials, officers, employees, agents and volunteers shall be named as additional insureds in connection with liability arising out of activities performed by or on behalf of Contractor; Premises owned, leased or used by Contractor; and vehicles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City or its elected and appointed officials, offìcers, employees, agents and volunteers. Contractor's insurance coverage shall be the primary insurance for the City and its elected and appointed officials, officers, employees, agents and volunteers in connection with the above enumerated categories. Any insurance or self-insurance maintained by City or its elected and appointed officials, officers, employees, agents and volunteers shall be in excess of Contractor's insurance and shall not contribute with it. Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to City or its elected and appointed officials, officers, employees, agents and volunteers. Coverage shall state that Contractor's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 15.4.2'Workers' Compensation and Employers Liabilitv Coverage The insurer shall agree to waive all rights of subrogation against City and its elected and appointed officials, officers, employees, agents and volunteers for losses arising from work performed by Contractor for City. Is.4.3 Pollution Contro Contractor shall maintain either an endorsement to its general liability policy, or a separate policy of insurance covering environmental pollution and contamination that names the City as an additional insured. Said coverage shall be in the amount of not less than Five Million Dollars ($5,000,000) per occuffence, and Five Million Dollars ($5,000,000) in the aggregate, and shall substantially comply with all other provisions set forth in Section 15.4.1. 15.4.4 Cyber Liabilitv Insurance Contractor shall maintain either an endorsement to its general liability policy, or a separate policy of insurance covering cyber liability that names the City as an additional insured. Said coverage shall be in the amount of not less than Five Million Dollars ($5,000,000) per occulrence' and Five Million Dollars ($5,000,000) in the aggregate, and shall substantially comply with all other provisions set forth in Section 15.4.1. Page 58 of 1 10 Final Draft January 29,2020 15.4.5 All Coveraees Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days'prior written notice by certified mail, return receipt requested, has been given to City. 15.5 Acceptabili tv of Insurers The insurance policies required by this Section shall be issued by an insurance company or companies authorized to do business in the State of California and with a rating in the most recent edition of Best's Insurance Reports of size category VII or larger and a rating classification of A or better, unless otherwise approved by the City Manager. 15.6 Verification of Coveraqe Contractor shall furnish City with certificates of insurance and with original endorsements affecting coverage required by this Article. The certificates and endorsements for each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms provided by or acceptable to City and are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 15.7 Loss or Reduction in Insurance In the event that Contractor fails to retain or maintain insurance with the scope and amounts of coverage required hereunder, City shall have the right, but not the obligation to either terminate this Agreement, or obtain insurance coverage as required herein on behalf of Contractor andutilize funds from the Surety defined in Section 14 to pay the cost of providing such coverage. SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND LIMITATIONS 16.I General Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement (collectively referred to as an "Assignment") to any other Person without the prior approval by the City Council. The City Council has unfettered discretion to approve or deny such an Assignment. Any such Assignment made without the approval by the City Council shall be void and the attempted Assignment shall constitute a material breach of this Agreement. 16.2 Assignment to be Broadly Interpreted For purposes of this Section the term "Assignment" shall be given the broadest possible interpretation and shall include, but not be limited to: (i) a sale, exchange or other transfer of substantially all of Contractor's assets dedicated to service under this Agreement to a third party; Page59of110 Final Draft January 29,2020 (ii) a sale, exchange or other transfer of any membership interest of Contractor to a third party; (iii) any dissolution,reorganization, consolidation, merger, re-capitalization, stock issuance or re- issuance, voting trust, pooling agreement, escrow affangement, liquidation or other transaction which results in a change of ownership or control of Contractor; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Contractor or any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, 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 or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change or control of Contractor. 16.3 Nature of Aqreement - Personal to Contractor Contractor acknowledges that this Agreement involves rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste Handling Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement. 16.4 Procedure for Consideration of Assisnment If Contractor requests City's consideration of and consent to an Assignment, the City Council may deny, approve or conditionally approve such request in its sole and absolute discretion. Under no circumstances shall City be obliged to consider any proposed Assignment if Contractor is in default at any time during the period of consideration. Should the City consent to any Assignment request, such Assignment shall not take effect until all conditions relating to the City's approval have been met. Any request for an Assignment shall be made in a manner to be prescribed by the City Manager, and no request by Contractor for consent to an Assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the Assignment if approved, made reasonable assurances that it will meet) the following requirements: (A) Contractor shall undertake to pay City its reasonable direct and indirect expenses, including administrative, investigative, consulting, and attorneys' fees and 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 (collectively the "Administrative Assignment Fee"). An advance non-refundable payment in an amount to be determined by the City Manager towards the Administrative Assignment Fee shall be paid to the City prior to City's consideration of any Assignment request, although Contractor shall be responsible to pay all costs incurred by City in considering a request for Assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the Assignment. Page 60 of 1 10 Final Draft January 29,2020 (B) If requested to do so, Contractor shall fumish City with audited financial statements of the proposed assignee's operations for the immediately preceding three (3) operating years. (C) Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Contractor under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local laws, including the Environmental Laws and that the assignee has provided City with a complete list of such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Collection and disposal of Solid Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. (D) The proposed assignee shall execute an agreement assuming all of Contractor's rights and liabilities under this Agreement. SECTION 17. REVIEW OF SERVICES AND PERFORMANCE 17.l PerformanceHearing (A) Commencing in or about luly 2024, and every five years thereafter, City may hold a hearing to review Contractor's Solid Waste Collection efforts, source reduction, processing and other diversion services and overall performance under this Agreement (the "Solid Waste Services and Performance Review Hearing"). The purpose of the Solid V/aste Services and Performance Review Hearing is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, recycling, processing and disposal to achieve a continuing, advanced Solid Waste Collection, source reduction and recycling and disposal system; and to ensure services are being provided by Contractor with adequate quality, effectiveness and economy and in full compliance with the terms of this Agreement. Topics for discussion and review at the Solid Waste Services and Performance Review Hearing shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939's goals and requirements, regulatory constraints and Contractor performance. City and Contractor may each select additional topics for discussion at any Solid Waste Services and Performance Review Hearing. (B) In addition to the Solid Waste Services and Performance Review Hearings City may hold in accordance with the immediately precedingparagraph, if the number of Customer complaints regarding Contractor's Solid Waste Collection are deemed by City to Page 61 of 1 l0 Final Draft January 29,2020 be excessive, City may, at any time (subject to the paragraph immediately below), hold a Solid Waste Services and Performance Review Hearing. (C) City shatl noti$r Contractor of its intent to hold a Solid Waste Services and Performance Review Hearing at least ninety (90) days in advance thereof. The notice will indicate whether the hearing will occur before City staff, the City Council, or such other body as the City may designate in the notice. Forty-five (45) days after receiving notice from City of a Solid Waste Services and Performance Review Hearing, Contractor shall submit a report to City which may contain such information as it wished to have considered, and shall contain the following: (l) Current diversion rates and a report on Contractor's outreach activities for the past year. (2) Recommended changes and/or new services to improve the City's ability to meet the goals of AB 939, AB 1826, SB 1383 and AB 341 and to contain costs and minimize impacts on rates. (3) Any specific plans for provision of changed or new services by Contractor. (D) The reports required by this Agreement regarding Customer complaints shall be used as one basis for review of Contractor's performance, and Contractor may submit other relevant performance information and reports for consideration at the Solid Waste Services and Performance Review Hearing. In addition to the above, City may request Contractor to submit any other specific information relating to its performance for consideration at the Solid Waste Services and Performance Review Hearing, and any Customer may submit comments or complaints during or before the Hearing, either orally or in writing. Contractor shall be present at and participate in the Solid Waste Services and Performance Review Hearing. SECTION 18. CITY,S REMEDIES; DEFAULT AND TERMINATION 18.1 Notice of Default If the City Manager determines that Contractor has defaulted in the performance of any obligation hereunder, or that Contractor's performance pursuant to this Agreement with respect to such matters has not been in conformity with reasonable industry standards which are obtained in similar cities in Southem California, the provisions of this Agreement, the requirements of the Municipal Code, the requirements of CalRecycle, including, but not limited to, requirements for source reduction and recycling or any other applicable federal, state, or local law or regulation, including but not limited to the laws governing transfer, storage, or disposal of Special Wastes, or Hazardous Waste, the City Manager may provide written notice to Contractor of such default. The City Manager may, in such written notice, set a reasonable time within which correction of such default shall be made. Unless a longer or shorter time is otherwise specified by the City Manager, a reasonable time for correction shall be thirty (30) days from the date such written notice is given. Page 62 of 110 Final Draft January 29,2020 18.2 Failure to Cure If Contractor fails to correct, to the satisfaction of the City Manager, all deficiencies contained in the written notice thereof within the specified time, or if it is not reasonably possible to correct such deficiencies within the specified time, and Contractor fails to commence to correct or remedy such deficiencies within the specified time and diligently effect such correction or remedy thereafter, then the City Manager may refer the matter to the City Council for review, or review the matter himself. 18.3 Review by City M¿lacq{ If the City Manager reviews the matter and determines that Contractor has failed to properly or adequately cure any default set forth above, the City Manager, in the exercise of his discretion, may terminate this Agreement, or take such other action as he deems appropriate to pursue any remedy available to City. A decision or order of the City Manager shall be final and binding on Contractor unless Contractor files a "Notice of Appeal" with the City Clerk within five (5) business days of the date the notice of the City Manager's decision is given. The City Manager shall schedule any appeal for consideration by the City Council at the earliest feasible City Council Meeting following the date a Notice of Appeal is given to City. 18.4 Cit]¡ Council Review In the event an appeal of a decision of the City Manager is filed, or if the City Manager refers the matter to the City Council without rendering a decision, the City Council shall set the matter for consideration before the City Council as a regular agenda item. In reviewing the matter, the City Council may consider any information reported by the City Manager regarding the deficiencies, and shall give Contractor, or its representatives and any other interested Person, a reasonable opportunity to be heard. The City Council shall determine whether Contractor has failed to properly or adequately perform as set forth above, and if so whether to terminate the Agreement, or to pursue any other remedy available to City. 18.5 Performance During Reviews Contractor's performance under this Agreement is not excused during any period of time when its performance is under review as set forth above, including at any time prior to a final decision as to whether such performance is deficient' 18.6 Termination wi Risht to Cure The above right of termination as a result of Contractor's failure to timely cure any deficiency is in addition to City's right to terminate this Agreement without affording Contractor an opportunity to cure in circumstances where Contractor is determined by City to have materially breached this Agreement. City shall thus be afforded the right to terminate this Agreement in the event of any material breach hereof by Contractor without affording Contractor the right to cure as a result of any action, inaction or circumstance which is a legally defined material breach, or is defined herein as a material breach, andlor under any of the following circumstances which are hereby specifically defined as material breaches: Page 63 of 1 10 Final Draft January 29,2020 (A) If Contractor practices, or attempts to practice, any fraud or misrepresentation upon City. (B) If Contractor becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding. (C) If Contractor willfully violates any orders or rulings of any regulatory body having jurisdiction over Contractor relative to this Agreement. So long as City's rights are not prejudiced during the pendency of any challenge to such orders or rulings by Contractor, Contractor may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no material breach of this Agreement shall be deemed to have occurred until a fìnal ruling has been rendered. (D) If Contractor ceases to provide Solid Waste Handling Services as required under this Agreement over all or any portion of the Franchise Area for a period of two (2) days or more, for any reason not specified as a force majeure event hereunder. (E) If Contractor fails to materially cornply with any insurance or indemnification requirement set forth in this Agreement. (F) If City is required to pay any fine or penalty, which is not paid on its behalf by Contractor or which Contractor fails, refuses, neglects or is unable to pay or indemnifu City against, relating to any diversion or other requirement of AB 939, AB 1826, SB 1383, AB 341 and/or other Applicable Law. (G) If Contractor, or any management level employee of Contractor is convicted of a Criminal Matter (as defined herein). For purposes of this Section the term Criminal Matter refers to any felony or misdemeanor offense having any relationship to either Solid Waste Handling Services or public comrption (including, without limitation, bribery, conflict of interest related allegations, vote selling, or any similar type charges). 18.7 LiquidatedDamages 18.7.1 General The City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical,if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at substantially lower costs than altemative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of Page 64 of 110 Final Draft January 29,2020 this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. 18.7.2 Service Performance Standards: Liquidated Damages for Failure to Meet Standards The parties further acknowledge that consistent, reliable Solid Waste Handling Service is of utmost importance to City and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement with it. The parties fuither recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default, the parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, 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 the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor Initial Here City Initial Here 18.7.3 Calculations for Liquidated Damages Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below for each type of action warranting such damages except by circumstances beyond its control, whether or not foreseeable, including, without limitation acts of the State of California or the U.S. Federal governments, acts of God, or natural disasters, whether of the kind enumerated or otherwise, that are not reasonably within the control of the affected party, then the affected party will be excused from perforrnance hereunder during the period of such disability. 18.7 .3.I Collection Reliability (A) For each failure to commence service to a new Customer account within seven (7) days after order, which exceed five (5) such failures annually: $150.00. (B) For each failure, which exceeds ten (10) such failures annually, to Collect Solid Waste from any established Customer on the scheduled Collection day and not Collected within the period described in this Agreement: $150.00. (C) For each failure to Collect Solid Waste, which has been properly set out for Collection, from the same Customer on two (2) consecutive scheduled pickup days: $150.00. Page 65 of I 10 Final Draft January 29,2020 I8.7.3.2 Collection Qualit)¡ (A) For each occuffence of failure to properly return empty Containers to avoid pedestrian or vehicular traffic impediments or to place Containers upright with lids secured which exceeds ten (10) such occurrences annually: $150'00. (B) For each occuffence of excessive noise or discourteous behavior which exceeds ten (10) such occurrences annually: $250.00. (C) For each occuffence of Collecting Solid Waste during unauthorized hours which exceeds five (5) such occurrences annually: $250'00. (D) For each occuffence of damage to private property (unless considered unavoidable damage) in an amount in excess of $1,000 which exceeds five (5) such occuffences annually: $250.00. (E) For each failure to clean up Solid Waste spilled from Containers, excepting amounts that are so nominal in nature that they would not reasonably be expected to be noticed by the driver of a Collection Vehicle, within 90 minutes that exceeds ten (10) such failures annually: $ I 50.00. (F) For each overweight collection vehicle load in excess of ten (10) per quarter: 5500.00 per day per load after City has considered Contractor's reason for excessive overweight vehicles 18.7.3.3 Customer Responsiveness (A) For each failure to initially respond to a Customer complaint within one (1) business day, which exceeds five (5) such occurrences annually, and for each additional day in which the complaint is not addressed: $250.00. (B) For each failure to process Customer complaints to City as required herein, which exceeds five (5) such occurrences annually: $250.00. (C) For each failure to remove graffrti from Containers, or to replace with Containers bearing no graffiti, within forty-eight (48) hours of a request from City: $ 150.00. t8.1.3.4 Timeliness of ssions to Citv (A) Any report shall be considered late until such time as a correct and complete report is received by City. A ten-day grace period shall apply for each report following its due date, and thereafter for each calendar day a report is late, the daily liquidated damage amount shall be: (1) Monthly Reports: (2) Quarterly Reports $100.00 per day $250.00 per day Page 66 of 1 10 Final Draft January 29,2020 (3) Annual Reports: $350.00 per day 18.7.3.5 Failure to Meet Diversion Requirements (A) Contractor's failure to submit Corrective Action Plan shall be: (1) Failure to submit Corrective Action Plan $150.00/ton for each ton under the Diversion Requirements. 18.7.4 Process for Assessment of Liouidated Damases (A) City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representative or investigation of Customer complaints. It is the desire of the parties to work together to avoid the imposition of liquidated damages and accordingly City will endeavor to timely communicate to Contractor any information that it receives which might give rise the imposition of liquidated damages in order to facilitate Contractor's ability to correct any deficiency, or prevent the recurrence of any conduct for which liquidated damages might eventually be imposed. (B) 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 information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City. Contractor may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. City will provide 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 City shall be final. (C) 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. 18.7.5 Timins of Pa)'ment Contractor shall pay any liquidated damages assessed by City within ten (10) days after they are assessed. If they are not paid within the ten (10) day period, City may proceed against any security required by this Agreement to obtain payment, and/or find Contractor in default and exercise its right to terminate this Agreement as set forth herein. SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING 19.1 AdministrativeHearine Should Contractor contend that City is in breach of any aspect of this Agreement, it shall give notice to the City Manager requesting an administrative hearing on the allegation. The hearing shall occur as soon as reasonably possible, or on such date as mutually agreed by the Page 67 of 110 Final Draft January 29,2020 parties, and shall be held before an impartial hearing officer to be determined by the City Manager. The hearing officer shall make an advisory ruling on Contractor's allegations, and suggest a remedy if a breach by City is determined to exist. The hearing officer's ruling and recommendations shall become final and binding if the parties so agree in writing within thirty (30) days of the date notice of the decision is given to both parties. Otherwise, the hearing officer's ruling shall have no further force or effect. 19.2 Other es: Claims Contractor shall be entitled to all available remedies in law or equity for City's breach of this Agreement; provided, however, Contractor shall not file or otherwise commence any action against City, in law or equity, in any court, until after an administrative hearing as set forth above has been completed, and the above noted thirty (30) day period to accept the hearing officer's decision has passed, or either City or Contractor has given timely written notice to the other that it will not accept the hearing offtcer's decision. 19.3 Actions for Damages As a prerequisite to the filing and maintenance of any action for damages by Contractor against City arising out of this Agreement, Contractor shall present a claim to City, as required by Government Code Section 910 et seq., within 30 days of the date of the occuffence giving rise to the claim for damages. Contractor shall have no right to assert a claim for damages related to City's failure to approve or delay in consideringarate adjustment. In such cases, County may file a petition for writ of mandate. SECTION 20. CITY'S ADDITIONAL REMEDIES In addition to any other remedies set forth herein, City shall be entitled to any or all of the following rights and remedies in the event of a breach of this Agreement by Contractor: (A) The right to use Contractor's equipment for the purpose of Collecting, transportin g, andlor disposing of Solid Waste, including Recyclable Material, for a period not to exceed six (6) months. In the case of equipment not owned by Contractor, Contractor shall assign to City, to the extent Contractor is permitted to do so under the instruments pursuant to which Contractor possesses such equipment, the right to use and possess the equipment. If City exercises its rights under this Section, City shall pay to Contractor the reasonable rental value of the equipment for the period of City's possession thereof (although payment may, if appropriate, occur in the form of a setoff against damages otherwise owed by Contractor pursuant to the terms hereof); (B) The right to license others to perform the services otherwise to be performed by Contractor hereunder, or to perform such services itself; and (C) The right to obtain damages andlor injunctive relief. Both parties recognize and agree that in the event of a breach of this Agreement by Contractor, City will suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to specifically enforce the provisions of this Agreement, and to enjoin the breach hereof. Page 68 of 1 10 Final Draft January 29,2020 SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY 21.1 Provision of Service Should Contractor, for any reason whatsoever, refuse or be unable to provide Solid Waste Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof, Solid Waste should accumulate in City to such an extent or in such a manner that the City Manager finds that such accumulation endangers or menaces the public health, safety, or welfare, City shall have the right, upon twenty-four (24) hours prior written notice to Contractor, during the period of such emergency, to temporarily take possession of any or all equipment and facilities of Contractor previously used in providing Collection, transportation, and disposal of Solid Waste and provide, through its own forces or otherwise, Solid Waste Handling Services which Contractor otherwise would be obligated to provide pursuant to this Agreement. Contractor agrees that in such event it shall fully cooperate with City to affect such a transfer of possession for City's use. 21.2 Possession of Equipment Contractor agrees, that in the event of circumstances described in Section 21 .1 above, City may take temporary possession of and use all of said equipment and facilities without paying Contractor any rental or other charge. Upon Contractor giving City notice that it is able to resume its normal responsibilities under this Agreement City shall either relinquish possession of all of the above-mentioned property to Contractor. 21.3 Exclusions from Right to Possession of Equipment without Compensation Specifically excluded from the circumstances in which City may possess and utilize Contractor's equipment without compensation are circumstances in which Contractor fails or refuses to provide Solid Waste Handling Services hereunder for any reason which is not a force majeure event as defined herein. In such circumstances City's right to utilize and possess Contractor's equipment shall be subject to the provisions of the above Section 20. SECTION 22. PRIVACY Contractor shall strictly observe and protect the privacy rights of Customers. Information identifying individual Customers or the composition or contents of a Customer's Solid Waste stream, or any of the Billing information pertaining to any Customers, shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste charccterization studies or waste audits which may be required by AB 939, AB 1826, SB 1383, or this Agreement. Contractor shall not market or distribute, outside the normal course of its business, mailing lists with the names and addresses of Customers. The rights afforded Customers pursuant to this Section shall be in addition to any other privacy right afforded Customers pursuant to federal or state law. Page 69 of I 10 Final Draft January 29,2020 SECTION 23. REPORTS AND ADVERSE INFORMATION The parties acknowledge that City will require reporting at various intervals by which information important to City can be complied and analyzed. Throughout the Term the parties agree to work together to address City's needs with respect to the information to be contained in reports prepared by Contractor. The following is intended as a starting point in order to have established an objective baseline for reporting, but the frequency and content of the reports called out below may be changed by agreement of the parties; provided any such change is approved by the City Manager in writing. Records related to performance of this Agreement shall be maintained by Contractor in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. The format of each report shall be approved by City. Contractor agrees to submit all reports in an electronic format approved by the City, compatible with City's software/computers at no additional charge. 23.1 MonthlyReporting. (A) General. Monthly reports must be submitted no later than 5 p.m. PT on the Thirtieth (30th) day following the close of the reporting period. If the thirtieth (30th) day falls on a day that City is closed or a holiday, then the report will be due on the next business day. (B) Contamination Reporting. The monthly report must include a summary of all instances of contamination under the procedures in Section 8.1.1 1. This summary must include the total number of accounts where contamination occurred, the total number of Contamination Violation Notices issued by Contractor to Customers, and the total number of instances where Collection Cart of Bins size or Collection frequency was increased specifically due to contamination. Within twenty (20) work days of request by City, Contractor will provide copies of the Contamination Violation Notices and the digital documentation of contamination. 23.2 OuarterlyReporting. (A) General. Quarterly reports must be submitted no later than 5 p.m. PT on the thirtieth (30th) day following the last month of the quarter. If the thirtieth (30th) day falls on a day that City is closed or a holiday, then the report will be due on the next business day. The Quarterly Report must include all items listed below. (B) Gross Receipts Reportine. Contractor must include an accounting of Contractor's gross receipts collected during the preceding quarter. (C) Franchised Tonnage Data. Contractor must report the tonnage of Refuse, Recyclable Materials and Organic Waste collected, processed for diversion, residual amounts and landfilled for broken down by Singe Family, Multi-Family, and Commercial Customers. Page70 of 110 Final Draft January 29,2020 (D) Non-Collection. The quarterly report must include a summary of each Customer receiving a Non-Collection Notice in the previous quarter along with a description for the Non-Collection Notice. (E)Collection Overage Charges.The quarterly report must include each Customer incurring a charge for a Solid'Waste Overage in the previous quarter. (F) Customer Complaint Log. The quarterly report must include the Customer call log collected from the previous quarter as required in Section 13.01 of this Agreement. 23.3 Annual RePorting. (A) General. An annual reporl must be submitted no later than 5:00 p.m. PT on April 1, 2021 and each April 1st thereafter for the previous Calendar Year. If April 1st falls on a day that City is closed, then the report will be due on the next business day. Annual reports must be provided electronically in software acceptable to the City. The Annual Report must include all items listed below. (B) Public Education Summary. Public education and information activities undertaken during the year, including distribution of bill inserts, collection notification tags, community information and events, tours and other activities related to the provision of Collection Services. This report will discuss the impact of these activities on Recyclables and Organic Waste program participation. (C) Summary of Programs. An analysis of any Recyclables and Organic Waste programs, processing and marketing issues or conditions (such as participation, setouts, contamination, etc.) and possible solutions, discussed separately for Singe Family Dwelling, Multi-Family Dwelling, and Commercial programs. This report shall include a list of all drop off facilities available to City residents for Household Sharps Waste, collection data for residential drop-off of Universal 'Waste, and on-call Household Hazardous Waste collection. (D) Solid Waste Data. Gross tons collected for the Calendar Year for Single Family, Multi-Family, and Commercial Customers, and residual from processing. The number of Singe Family, Multi-Family, Commercial Customers and the number of Bins, Carts, Split Bins, and Roll off Boxes distributed by size and Service Unit type. (E) Rec]¡clables Data. Gross tons processed and recovered for the Calendar Year for Singe Family, Multi-Family, and Commercial Recyclables service. Indicate, by material type (and grade where appropriate), quarterly totals of Recyclable Materials processed and sold including facility name and location, average price received per ton and total recycling revenue received for the Calendar Year, cost of Recyclable Materials processing, and the cost of residual disposal. Indicate any quantities, by material type, donated or otherwise disbursed without compensation. Indicate the number of Bins and Carts distributed by size and service unit type. Provide totals and location for residue Disposed. Include the number of route reviews conducted for prohibited contaminants and the number of Contamination Notices issued. Page 7I of I 10 Final Draft January 29,2020 (F) Organic Waste Data. Gross tons of Organic Waste processed and recovered for the calendar year for Singe Family, Multi-Family, and Commercial Organic Waste service. Include the total number of generators that receive each type of Organic rüy'aste Collection Service provided by the Contractor. Indicate average participation rates relative to the total number of service units in terms of weekly set-out counts. Indicate number of Bins and Carts distributed by size and service unit type. Provide totals and location for residue Disposed. Include the number of route reviews conducted for prohibited contaminants and the number of Contamination Notices issued. (G) AB 341 and AB 1826 Outreach Report. A complete list of all Multi-Family and Commercial Customers, which includes each account's status as a "covered generator" underAB 341 and AB 1826, the date and status of Contractor's outreach efforts at each account, and the current level of Recyclables and Organics Waste program participation at each account. (H) AB 341. AB 1826" and SB 1383 Compliance Data. Contractor must report the total number of Residential and Commercial Customers serviced and the number of containers, container sizes and frequency of Collection for Refuse, Recyclables and Organic Waste for each Customer. Contractor must also provide the following information separately . (1) The total number of Multi-Family and Commercial Customers that fall under the AB 341 or AB 1826 thresholds, and the total number of those Residential, Multi-Family and Commercial Customers that are not receiving Contractor's required services to Recyclables and/or Organic Waste service under SB 1383. (2) A summary of the type of follow-up outreach that was provided to those Customers that are not subscribed to Recycling Collection Service or Organics Collection Service. (3) A summary of the monthly contamination reporting as set forth in Section 23.1(B). (r)Customer Service Log. A summary of the type and number of complaints and their resolution, including calls related to missed pickups and responses to such calls. (with three-year retention) (J) Overweight Vehicle Data. A summary of all instances of overweight collection vehicles. This summary must also include the number of overweight vehicle instances as a percentage of the total number of collection vehicle loads transported during the Calendar Year. (K)Summary Narrative. A summary narrative of problems encountered with Collection and processing activities and actions taken. Indicate type and number of Non- Collection Notices left at Customer locations. Indicate instances or numbers of property damage or injury, significant changes in operation, market factors, publicity conducted, or needs for publicity. Include description of processed material loads rejected for sale, reason for rejection and disposition of load after rejection. Page72 of 110 Final Draft January 29,2020 (L)Bin. Cart- and V ehicle Inventorv . An updated complete inventory of Bins and Carts by type and size, and an updated complete inventory of Collection vehicles including for each vehicle: truck number, date purchased, vehicle type, tare weight, license plate number, and vehicle make and model. (M)Citv Solid Waste Service Data. Gross tons of Solid Waste by material type (Refuse, Recyclable Materials, and Organic Waste) collected for the Calendar Year from City facilities, processed, recovered, and dispose, as well as residual from processing. The number of City facility service addresses and the number of Containers distributed by size and Service Unit type. A list of locations and service days for Public Trash Cans and Public Recyclables Cans serviced in the City. Reported tonnages may be allocated based on service volumes provided' 23.4 Diversion Data. By 5:00 p.m. PT on March 31, 2027, and annually thereafter during the term of this Agreement, Contractor must deliver to City diversion data for the specific services performed under this Agreement in the format specified by City. 23.5 CalRecycleReports. Contractor will provide reasonable assistance to City in preparing annual reports to CalRecycle, including but not limited to supplying required data for preparation of the reports' In the event that CalRecycle requires City to submit a correction plan, or implementation schedule to comply with AB 939, AB 341, AB 901, AB 1594, AB 1826, SB 1383 and other Applicable Laws, Contractor will provide reasonable assistance to City in preparing a report, including Contractor's policies and procedures related to compliance with AB 939, AB 341, AB 901, AB 1594, AB 1826, SB 1383, and other Applicable Laws and how recycling or organics are collected, a description of the geographic area, routes, list of addresses served and a method for tracking contamination, copies of route audits, copies of notice of contamination, copies of notices, violations, education and enforcement actions issued, and copies of educational materials, flyers, brochures, newsletters, website, and social media. 23.6 AdditionalReportins. Contractor must furnish City with any additional reports as may reasonably be required, such reports to be prepared within a reasonable time following the reporting period. 23.7 Adverse formation (A) Contractor shall provide City two copies of all reports and other material adversely affecting this Agreement submitted by Contractor to the United States Environmental Protection Agency, CalRecycle, the California Regional Water Quality Control Board, and any other federal, state, regional, or local regulatory agency' Copies shall be submitted to City simultaneously with Contractor's filing of such matters with said agencies. Contractor's routine correspondence to said agencies need not be automatically submitted to City, but shall be made available to City upon written request' Page73 of 110 Final Draft January 29,2020 (B) Contractor shall submit to City copies of all pleadings, applications, notifications, communications, and documents of any kind submitted by Contractor to, as well as copies of all decisions, correspondence, and actions by, any federal, state, and local courts, regulatory agencies, and other government bodies relating in any manner to Contractor's performance of services pursuant to this Agreement. To the degree authorized by law, any confidential data exempt from public disclosure shall be retained in confidence by City and its authorized agents and shall not be made available for public inspection. (C) Contractor shall submit to City such other information or reports in such forms and at such times as City may reasonably request or require. (D) All reports and records required under this or any other Section hereof shall be fumished at the sole expense of Contractor. 23.8 Disaster Plan Within 60 days from a request by City, Contractor shall prepare a draft disaster plan that sets forth procedures for maintaining regular Collection service and Collection of debris following a major natural disaster such as an earthquake, fire or other similar emergency event (not including labor disputes). The disaster plan shall address affangements to provide needed vehicles and personnel, priorities for cleanup at critical facilities, and procedures for reimbursement for costs, describe communication plans, list key contact persons, and provide maps showing proposed sites for stockpiling of disaster debris that cannot be transported to the landfill. Contractor shall coordinate the plan with City's emergency service teams. The draft plan shall be presented to the City Manager for consideration and approval. The final plan shall be distributed to those employees of Contractor and City who would have a role in implementing it in the event of a disaster. In addition, at City's request, Contractor shall assist the City with such emergency Collection service and Collection of debris following a major natural disaster such as an earthquake, fire or other similar emergency event. In the event of such a request, Contractor and City shall meet and confer in good faith to determine a fair and reasonable rate to compensate Contractor for providing such assistance. 23.9 Failure to Report The refusal of Contractor to file any of the reports required, or the inclusion of any materially false or misleading statement or representation made knowingly by Contractor in such report, shall be deemed a material breach of this Agreement and shall subject Contractor to all remedies, legal or equitable, which are available to City under this Agreement or otherwise' SECTION 24. COMPENSATION 24.1 Contractor Rates Contractor shall provide services to Customers pursuant to this Agreement at rates it sets, charges to, and collects from Customers, which rates shall not exceed those set forth in the attached Page74 of 110 Final Draft January 29,2020 Exhibit A, which sets out the maximum rates that may be charged by Contractor, as such maximum rates may be adjusted from time to time pursuant to the terms hereof. The maxirnum rates set forth in Exhibit A are inclusive of all services to be provided, including transportation, disposal, and Container costs, and no other charges shall be imposed by Contractor for such services except as otherwise provided in this Agreement. 24.2 Resolution of Disputes Reearding Rate Adjustments Any dispute regarding an adjustment to the maximum rates Contractor may charge, or the computation thereof, shall be decided by the City Manager. The rates in effect at the time such dispute is submitted to the City Manager shall remain in effect pending resolution of such dispute. The effective date of the adjusted maximum rate following the resolution of any such dispute, whether retroactive or prospective, shall be determined by the City Manager. 24.3 Annual Consumer Price Index Adjustments Commencing on July 1, 202l,the maximum rates as set forth in Exhibit A may be adjusted, and such rates may be adjusted annually thereafter on each subsequent July lst during the Term hereof (the "Adjustment Dates"), by multiplying each rate by the greater of one percent (l%) ot the percentage equal to the change in the Consumer Price Index ("CPI") for All Urban Consumers, CUUSS49ASA0 not seasonally adjusted, all items index (CPI-U) - Los Angeles-Long Beach- Anaheim average for the twelve (12) month period ending on the date of December 3 1 immediately prior to the applicable Adjustment Date. At least ninety (90) days prior to charging Customers any rate increased due to an increase in the CPI, Contractor shall obtain the City Manager's approval to do so. The City Manager shall approve such a request unless it is determined, based upon substantial evidence, that the requested adjustment to the maximum rate does not meet the requirements as set forth herein 24.4 Limitations to Annual CPI Adjustments Notwithstanding anything to the contrary in Section 24.3 above. the maximum annual adjustment occurring pursuant to Section 24.3 shall be limited by the provisions set forth below. 24.4.1 Four Percent (4o/o\ Cap Any maximum rate may not be increased in any given year by more than four percent (4%) without regard to any higher increase which may otherwise be justified by the formula set forth in Section 24.3. 24.4.2 Compliance with Agreement No increase to the maximum rates shall occur if the City Manager determines that Contractor did not substantially comply with all terms of this Agreement in the Rate Year preceding the increase, including without limitation, provisions hereof relating to reporting to CalRecycle, diversion, and Customer service standards. Page75of110 Final Draft January 29,2020 24.5 DiscretionaryAdjustments Contractor may request an adjustment to the maximum rates set forth in Exhibit A at reasonable times other than as set forth in Section 24.3 for changes in the cost of providing service under this Agreement, including but not limited to those for providing additional programs requested by the City Manager or required by Applicable Law. For each request for an adjustment to the maximum rates brought pursuant to this Section, Contractor shall prepare a schedule documenting the additional costs. Such request shall be prepared in a form acceptable to City Manager with support for assumptions made by Contractor in preparing the estimate. City Manager shall review Contractor's request and, in the City Council's sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment. City Manager may consider increases or decreases in Contractor's total revenues and total cost of services when reviewing such rate adjustment request. Contractor may not request an extraordinary increase in the maximum rates as a result of: changes in fees or taxes such as Social Security, disability or income tax; changes in the market value of Recyclables; inaccurate estimates by Contractor of its cost of operations; or costs of compliance with South Coast Air Quality Management District and Air Resource Board rules and standards for Collection Vehicles. 24.6 Proposi 218 Contractor understands and agrees that City may elect to or be required to comply with Califomia Constitution Article XIII D (Proposition 218) or other Applicable Law before approving any new maximum service rate or any maximum service rate increase. City shall not be in breach of this Agreement if its residents lawfully delay or prevent City from raising or imposing the rates. In such event, City and Contractor shall meet in good faith to consider alternatives and options, which may include permitting Contractor to terminate the Agreement without cause. All costs incurred in providing notices required under California Constitution Article XIII D or other applicable law in connection with a rate adjustment shall be paid by Contractor. SECTION 25. IDENTIFICATION OF CONTRACTOR Contractor has agreed to use the name "CR&R Incorporated" and "CR&R Environmental Services" to identifu itself to the public as the specific organization that shall provide all services under this Agreement. Unless otherwise approved in writing by City, this name shall be used for all correspondence, Billing statements, directory listings, references, signs, and vehicle and Bin identification. SECTION 26. FLOW CONTROL; COUNTY AGREEMENT (A) City shall have the option to direct and/or approve which Transformation facility, recycling facility, material recovery facility, landfill, or other facility Contractor shall use to retain, recycle, process, and dispose of Solid Waste and construction materials generated within the Franchise Area as required to enable City to comply with the County Agreement. Contractor expressly consents to City's ability to direct the location for disposal Page76 of 110 Final Draft January 29,2020 of Solid Waste hereunder, and waives any and all rights to challenge City's ability to do so, including without limitation any rights under the Commerce Clause of the United States Constitution. (B) Contractor expressly acknowledges its awareness of the County Agreement which has been adopted and entered into by City. Moreover, Contractor acknowledges that it has had an opportunity to review the County Agreement, and is aware of the provisions thereof that require all Refuse Collected in the City Limits to be disposed of in the Orange County landfill system. Contractor further acknowledges that the County of Orange is an intended third-party beneficiary of Contractor's obligations relating in any way to the disposal of Refuse pursuant to this Agreement and the County Agreement. Contractor hereby adopts as its obligations hereunder such provisions of the County Agreement that require action or inaction by it as City's Solid Waste franchisee. Contractor represents and warrants that it can and will perform its duties in connection with this Agreement in such a manner as to ensure that City does not breach the terms of the County Agreement as a result of Contractor's actions or inactions. (C) Upon the Effective Date of this Agreement, City is deemed to have exercised its flow control option set forth hereinabove as to Refuse required to be delivered to the Orange County landfill system pursuant to the County Agreement, by virtue of the fact City has entered the County Agreement; and, further, City is deemed to have exercised such option in a manner consistent with its obligations pursuant to the County Agreement. At any time during the Term of this Agreement the City Manager may notify Contractor in writing that City no longer desires to exercise its flow control option hereunder. In the event City so notifies Contractor of its desire to cease exercising its flow control option, Contractor shall have the absolute discretion to utilize any Transformation facility, recycling facility, material recovery facility, landfill, or other facility of its choosing to retain, recycle, process, and dispose of Solid Waste and construction materials generated within the Franchise Area, provided such facility meets all other requirements of this Agreement. SECTION 27. INDEMNIFICATION 27.1 General (A) Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, and agents (collectively the "Indemnities") from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties) arising out of, resulting from, and/or in any way connected with this Agreement including: (1) the negligence or willful misconduct of Contractor, its officers, employees, agents, andlor subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, andlor subcontractors to comply in all respects with the provisions of this Agreement, all Applicable Law (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; (3) the acts of Page 77 of 1 10 Final Draft January 29,2020 Contractor, its officers, employees, agents, andlor subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws); and (4) any challenge to the award of, or any provisions of this Agreement (including any claim that the application of any provision hereof violates any provision of the California Constitution). Contractor further agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable to City) City, its elected and appointed boards and commissions, officers, employees, and agents against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi-judicial or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. (B) Contractor, upon demand of City, made by and through the City Attorney, shall protect City and appear in and defend City and its elected ofhcials, officers, employees and agents, in any claims or actions by third parties, whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of "Solid 'Waste," "Recyclable Material," or "Organic Waste" the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, asserting rights under the Dormant Commerce Clause or any other federal or state laws to provide Collection services in the City. (C) 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. 27.2 Hazardous Substances Indemnification (A) Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, to the extent allowed by Applicable Law, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnifu, 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, attomeys' 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, Page78 of 110 Final Draft January 29,2020 monitor, study, test, treat, remove, remediate, or otherwise cleanup, ànY Hazardous Contaminant (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: (l) any Claims brought pursuant to or based on the provisions of the Environmental Laws, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. $9601 et seq., the Resource Conservation and Recovery Act,42 U.S.C. $6901 et seq,, the Carpenter-Presley-Tanner Hazardous Substances Account Act, California Health & Safety Code Section 25300 et seq., the California Hazardous Waste Control Laws, California Health and Safety Code Section 25100 et seq., the Califomia 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 by 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; and (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 Contaminant" shall mean any "hazardous material," as that term is defined under California Health & Safety Code Section 25501(o); any "hazardous substance," as that term is defined herein or under California Health & Safety Code Sections 25281(h), 25501(p), 25501.1 and under Title 42, Section 9601(14) of the United States Code; any "hazardous waste," as that term is defined herein and under Title 42, Section 6903(5) of the United States Code and under Califomia Health & Safety Code Section 25501(q); any chemical which the Govemor has identified as a chemical known to the State to cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section25249.8; any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos- containing material. The term "Hazardous Contaminant" 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. Page79 of 110 Final Draft January 29,2020 (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. 27.3 ReferendumPetition In the event that the City's residents submit a valid referendum petition challenging award of this Agreement, City may elect to conduct an election on such award. If so, Contractor shall reimburse City for all costs associated with conducting such election within thirty (30) days of receipt of an invoice from City. SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS 28.1 Maintenance and Inspection of Records Contractor shall maintain all records relating to the services provided hereunder, including but not limited to Customer lists; Billing records; accounts payable records; maps; AB 939, AB 341, AB 1826, and SB 1383 compliance records; records reflecting the number and type of routes and route hours by service category (such as residential, multi-family, commercial, roll off, and special services); records demonstrating facilities, equipment and personnel used to perform services; Refuse, Recyclables, and Organic Waste Containers in service by frequency of Collection for each Customer group (such as single family, multi-family, commercial, roll off); records reflecting the number of Roll Off Box pulls; and such other documents and materials which reasonably relate to Contractor's compliance with the provisions of this Agreement (the "Records"), for the full Term of this Agreement, and an additional period thereafter of not less than three (3) years, or any longer period required by law. City shall have the right, upon five (5) business days advance notice, to inspect the Records. Such Records shall be made available to City at Contractor's regular place of business, but in no event outside the County of Orange. Nothing in this Section shall override Contractor's attorney-client privilege unless waived by Contractor. Records must be made available for CalRecycle within 10 business days upon request from the City. 28.2 CERCLA Records City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Solid Waste Collected in the City was taken for disposal, as well as where it was not taken, to be matters of concem. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) for not less than five (5) years following the termination of this Agreement, and agrees to notifo City's Risk Manager, City Clerk and City Attorney before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City. The requirements of this Section shall survive the expiration of the Term of this Agreement. Page 80 of 1 10 Final Draft January 29,2020 28.3 Audits 28.3.1 Examination of Services From time to time, anticipated to be at least once every other year, City may request Contractor to make available any or all of its records related to performance hereunder available to an independent auditor or examiner, to be selected by the City, for auditing and examination purposes (a "Discretionary Audit"). City shall bear the cost of any Discretionary Audit except as otherwise provided herein. Should any Discretionary Audit reveal an underpayment of any Franchise Fee required pursuant to this Agreement, the amount of such underpayment shall become due and payable to City not later than fifteen (15) days after written notice of such underpayment is sent to Contractor by City, complete with any additional late charges as set forth herein. If a Discretionary Audit reveals inaccuracies or inconsistencies in more than five percent (5%) of all Customer accounts, either with Contractor's operations or Billing systems, or an underpayment of Franchise Fees of more than three percent (3%), Contractor shall bear the entire cost of such Discretionary Audit. SECTION 29. TRANSITION OBLIGATIONS At the end of the Term, or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of services. Contractot's cooperation shall include, but not be limited to, providing route lists, Billing information and other operating records needed to service all Premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable reliefnecessary to enforce this covenant. Contractor shall provide any new Solid Waste enterprise with all keys, security codes and remote controls used to access garages, gates and bin enclosures. Contractor shall be responsible for coordinating transfer immediately after its final Collection activities, so as to not disrupt services. Contractor shall provide City with detailed route sheets containing service names and addresses, Billing names and addresses, monthly rate and service levels (number and size of Containers and pickup days) at least 90 days prior to the transition date, provide an updated list two weeks before the transition, and a final updated list with any changes the day before the transition. Contractor shall provide means of access to the new Solid Vy'aste enterprise at least one full business day prior to its first day of Collection, and within sufficient time so as to not impede in any way the new Solid Waste enterprise from easily servicing all Containers. SECTION 30. GENERAL PROVISIONS 30.1 Force Maieure Contractor shall not be in default under this Agreement in the event that its ability to provide Solid Waste Handling Services or Temporary Services, in compliance with its obligation to do so hereunder, is temporarily intemrpted or discontinued for any of the following reasons: riots, wars, sabotage, civil disturbances, insurrections, strikes or other labor disturbances lasting Page 81 of 1 10 Final Draft January 29,2020 l5 days or less, explosion, natural disasters such as floods, earthquakes, landslides, and fires, or "other catastrophic events" which are beyond the reasonable control of Contractor. The term "other catastrophic events" does not include: (i) the financial inability of Contractor to perform; (ii) failure of Contractor to obtain any necessary permits or licenses from other governmental agencies; (iii) the failure to obtain the right, or the loss of the right, to use the facilities of any public utility where such failure is due in substantial part to the acts or omissions of Contractor; or (iv) strikes or other labor disturbances lasting longer than 10 days. 30.2 IndependentContractor Contractor is an independent contractor and not an officer, agent, servant, or employee of City. Contractor is solely responsible for the acts and omissions of its officers, agents, employees, and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Contractor. Neither Contractor nor its officers, employees, agents, or subcontractors shall obtain any rights to retirement or other benefits which accrue to City employees. 30.3 Pavement Damage Contractor shall be responsible for the cost of repair of any extraordinary damage to the public streets located within the City resulting from providing the services required hereunder. 30.4 Propert)¡ Damaee Any physical damage caused by the negligent or willful acts or omissions of employees, agents, or subcontractors of Contractor to private or public property shall be promptly repaired or replaced at Contractor's expense. 30.5 Rieht of Entry Contractor shall not have the right, until Contractor receives permission from the property owner, to enter or drive on any private street, court, place, easement, or other private property for the purpose of providing Temporary Services and/or Solid V/aste Handling Services pursuant to this Agreement. 30.6 Law to Govern: Venue The laws of the State of Califomia shall govern this Agreement. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Orange. 30.1 Amendment This Agreement is intended to carry out City's obligations to comply with the provisions of AB 939, AB 1826, SB 1383 and AB 341, as implemented by regulations of CalRecycle, as they from time to time may be amended. In the event that, after the Effective Date of this Agreement, other state or federal laws or regulations are enacted and prevent or preclude compliance with one or more provisions of this Agreement, such provisions (including those relating to rates set forth in Exhibit A) shall be modifìed or suspended as may be necessary to comply with such state or Page 82 of 1 10 Final Draft January 29,2020 federal laws or regulations. Except as otherwise expressly stated herein, no other amendment of this Agreement shall be valid unless it in writing and duly executed by the Parties. 30.8 Notices All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered or sent by United States certified mail, postage prepaid, return receipt requested, and addressed as follows: To City:City of San Juan Capistrano Attn: City Manager 32400 Paseo Adelanto San Juan Capistrano, CA 9267 5 To Contractor:CR&R Incorporated Attn: President P.O. Box 125 Stanton, CA 90680 Telephone: 817 .728.0446 Telecopier : 7 I 4-890-63 41 or to such other address as either party may from time to time designate by notice to the other given in accordance with this Section. Notice shall be deemed given on the date served if served personally between the hours of 8:00 a.m. to 5:00 p.m. on any regular business day for City's business offices. If mailed, notice shall be deemed given three (3) business days from the date such notice is deposited in the United States mail in the manner proscribed above. 30.9 Savinss Clause If any non-material provision of this Agreement is for any reason held to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the validity and enforceability of any of the remaining provisions of this Agreement. 30.10 Exhibits Incorporated Each Exhibit referred to in this Agreement forms an essential part of this Agreement. Exhibits A through I are attached to and incorporated in this Agreement by reference. In the event of a conflict between the provisions of this Agreement and such Exhibit, the terms of this Agreement shall govem. 30.11 Joint Draftine This Agreement shall be interpreted as if it were drafted jointly by the Parties to the Agreement. 30.12 Attorneys'Fees and Litieation Costs In the event either party brings any action or proceeding to enforce or interpret the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys' fees and other litigation costs and expenses, including Page 83 of110 Final Draft January 29,2020 without limitation, expert witness fees, consultant fees and costs. Without limiting its scope in any way, this provision is expressly intended to, and shall, apply to fees and costs incurred in any appeal. 30.13 Cit)¡'s Authorized Agent Notwithstanding anything contained herein to the contrary, and excepting amendments hereto and such actions set forth herein specifically calling for City Council action or approval, the City Manager is designated as the City's authorized agent to take any action with regard to any matter, or enforce any right, set forth herein requiring action by the City. 30.14 Integrated Agreement This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals, and agreements between the Parties, whether written or oral. The Parties acknowledge this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledges that no party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument. 30.15 Section Headinss The 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. 30.16 Compliance with Law In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all Applicable Law, including the laws and regulations of the United States, the State of California, the provisions of the Municipal Code, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended. ISTGNATURES ON FOLLOWING PAGE] Page 84 of 1 10 Final Draft January 29,2020 Maria Morris, City Clerk APPROVED AS TO FORM: "City" City OF SAN JUAN CAPISTRANO Troy Bourne, Mayor "Contractor" CR&R Incorporated By ATTEST: B By Jeff Ballinger, City Attomey fo.I Page 85 of I 10 Final Draft January 29,2020 EXHIBIT A. MAXIMUM RATE SCHEUDLE FOR SOLID \ryASTE HANDLING SERVICES City of San Juan Capistrano Rate Schedule Effective 7 I Llzozo - 61301 2o2l' Service Descriptions Rate Single Family Residential Cart Service (Monthly) 35-gallon refuse cart set of 3 (35-gallon refuse + 35,64, or 96 gallon recycle and green waste) each additional 35-gallon refuse carts each additional 35-gallon green waste carts 1st additional 35, 65, or 96 gallon recycling cart each additional 35-gallon recycling cart (2nd or above) 65-gallon refuse cart set of 3 (65-gallon refuse + 35,64, or 96 gallon recycle and green waste) each additional 65-gallon refuse carts each additional 65-gallon green waste carts 1st additional 35, 65, or 96 gallon recycling cart each additional 65-gallon recycling cart (2nd or above) 96-gallon refuse cart set of 3 (96-gallon refuse + 35,64, or 96 gallon recycle and green waste) each addltional 96-gallon refuse carts each additional 96-gallon green waste carts Lst add¡tional 35, 65, or 96 gallon recycling cart each additional 96-gallon recycling cart (2nd or above) Residential Miscellaneous Fees Walkout service for eligible customers Walkout service for ineligible customers Residential Additional Pick uP Residential Pickup (Walkout) Residential Restart Fee Residential New Account Fee Contamination Charge Per Occurrence Curbside Household Hazardous Waste (per collection) Additional Container Exchange Service Call Back Overflow Cart Cleaning Call Service For each Bulky ltem - up to four (4) items For each Bulky ltem - commencing with fifth (5th) item $21.00 s4.01 S4.01 No Charge s4.01 s22.00 Ss.sz Ss.sz No Charge Ss.sz s24.00 57.16 s7.16 No Charge $7.16 No Charge Si.i..88 No Charge 546.2s s20.60 iqq.zq 52O.44 s26.os $2s.oo Ssz.go s2s.00 s2s.oo $2s.oo s2s.00 Page 86 of 1 10 Final Draft January 29,2020 Service Descriptions City of San Juan Capistrano Rate schedule Effective 7ltl2o2o - 613012021, Rate Commercial Services - Refuse 1x p/wk 2xplwk 3 x p/wk 4xp/wk 5 x p/wk 6 x p/wk 1 x p/wk 2 x p/wk 3 x p/wk 4xp/wk 5 x p/wk 6 x p/wk 1 x p/wk 2 x p/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xplwk 3 x p/wk 4xplwk 5 x p/wk 6 x p/wk 1 x p/wk 2 x p/wk 3 x p/wk 4xplwk 5 x p/wk 6 x p/wk L x p/wk 2xplwk 3 x p/wk 4xp/wk 5 x p/wk 6 x p/wk 35,64, or 96-Gallon 35,64, or 96-Gallon 35,64, or 96-Gallon 35,64, or 96-Gallon 35,64, or 96-Gallon 35,64, or 96-Gallon Rate used for 3yd Split Bin Calc only Rate used for 3yd Split Bin Calc only Rate used for 3yd Split Bin Calc only Rate used for 3yd Split Bin Calc only Rate used for 3yd Split Bin Calc only Rate used for 3yd Split Bin Calc only Commercial Refuse Cart Commercial Refuse Cart Commercial Refuse Cart Commercial Refuse Cart Commercial Refuse Cart Commercial Refuse Cart 1.5 yd (3yd split) Refuse 1.5 yd (3yd split) Refuse 1.5 yd (3yd split) Refuse 1.5 yd (3yd split) Refuse 1.5 yd (3yd split) Refuse 1.5 yd (3yd split) Refuse 2yd (or 4yd split) Refuse 2yd (or ayd split) Refuse 2yd (or ayd split) Refuse 2yd (or 4yd split) Refuse 2yd (or 4yd split) Refuse 2yd (or ayd split) Refuse 3yd Refuse 3yd Refuse 3yd Refuse 3yd Refuse 3yd Refuse 3yd Refuse 3yd Locking Refuse 3yd Locking Refuse 3yd Locking Refuse 3yd Locking Refuse 3yd Locking Refuse 3yd Locking Refuse 3yd Compactor Refuse 3yd Compactor Refuse 3yd Compactor Refuse 3yd Compactor Refuse 3yd Compactor Refuse 3yd Compactor Refuse s2s.80 s42.63 5s8.00 S76.03 5gz.qz s108.3s S76.03 572s.67 5L70.97 5224.t6 5272.47 s31s.s3 Sgg.go s16s.34 Szzs.zl 5294.94 S¡sa.rs 5420.41, 5ts2.07 s2s1.3s S¡+r.go 5448.3r. Ssq+.9+ $639.06 5L66.!z s26s.3e s3ss.73 5461.99 sss8,49 56s2.47 5281.73 Ss1o.84 s731.03 se67.08 S1,193.37 51.,4L7.16 Page 87 of 1 10 Final Draft January 29,2020 Service Descriptions City of San Juan Capistrano Rate Schedule Effective 7lt l2O20 -6l3Ol2O2L Rate 1 x p/wk 2xplwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xplwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xplwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 4yd Refuse 4yd Refuse 4yd Refuse 4yd Refuse 4yd Refuse 4yd Refuse 4yd Locking Refuse 4yd Locking Refuse 4yd Locking Refuse 4yd Locking Refuse 4yd Locking Refuse 4yd Locking Refuse 4yd Compactor Refuse 4yd Compactor Refuse 4yd Compactor Refuse 4yd Compactor Refuse 4yd Compactor Refuse 4yd Compactor Refuse $199.80 s330.6s s4so.48 Ss89.88 Szro.s¡ Ss+o.az s213.8L $344.48 5464.17 s603.38 5729.6s S8s4.o3 Sztz.tq Sozo.qz Sgag.zz 5L,281.47 S1,579.36 5L,878.2L Page 88 of 1 10 Final Draft January 29,2020 Service Descriptions City of San Juan Capistrano Rate Schedule Effective 7 I tl2020 - 6l3ol2o2t Rate Commercial Recycling Services (6O% of Commercial) 1 x p/wk 2xp/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2 x p/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xp/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xplwk 3 x p/wk 4xp/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xplwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xp/wk 3 x p/wk 4xp/wk 5 x p/wk 6 x p/wk 35,64, or 96-Gallon 35,64, or 96-Gallon 35,64, or 96-Gallon 35,64, or 96-Gallon 35,64, or 96-Gallon 35, 64, or 96-Gallon Srs.¿s 52s.s7 izq.tg S+s.oz Sss.4s Sos.o¡ 1.s yd (3yd split) 1.s yd (3yd split) 1.s yd (3yd split) L.5 yd (3yd split) 1.s yd (3yd split) 1-.5 yd (3yd split) Recycling Recycling Recycling Recycling Recycling Recycling Si.s.48 s2s.s7 s34.7s S4s.62 Sss.+s Sos.o¡ S4s.62 s7s.40 S1o2.s9 s134.49 s163.48 sL9L.72 Ssg.g+ ss9.20 S13s.14 Si,76.96 s214.89 52s2.2s ss!.24 $1s0.81 s2}s.17 s268.98 5326.97 s383.43 Sgg.oz s1s9.23 5213.44 5277.t9 s33s.10 5391.48 Si.69.04 s306.s0 s438.61 ss80.24 5716.02 Saso.zg 2yd (or 4yd split) Recycling 2yd (or 4yd split) Recycling 2yd (or 4yd split) Recycling 2yd (or ayd split) Recycling 2yd (or 4yd split) Recycling 2yd (or 4yd split) Recycling 3yd Recycling 3yd Recycling 3yd Recycling 3yd Recycling 3yd Recycling 3yd Recycling 3yd Locking Recycling 3yd Locking Recycling 3yd Locking Recycling 3yd Locking Recycling 3yd Locking Recycling 3yd Locking Recycling 3yd Compactor Recycling 3yd Compactor Recycling 3yd Compactor Recycling 3yd Compactor Recycling 3yd Compactor Recycling 3yd Compactor Recycling Page 89 of 1 10 Final Draft January 29,2020 Service Descriptions City of San Juan Capistrano Rate Schedule Effective 7lU2o2o - 6l3ol202t Rate 1 x p/wk 2xplwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xp/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1x p/wk 2xplwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 4yd Recycling 4yd Recycling 4yd Recycling 4yd Recycling 4yd Recycling 4yd Recycling 4yd Locking Recycling 4yd Locking Recycling 4yd Locking Recycling 4yd Locking Recycling 4yd Locking Recycling 4yd Locking Recycling 4yd Compactor Recycling 4yd Compactor Recycling 4yd Compactor Recycling 4yd Compactor Recycling 4yd Compactor Recycling 4yd Compactor Recycling s119.88 Si.98.38 5270.28 S3s3.92 s429.80 ss04.49 s128.28 s206.69 5278.49 S¡oz.o¡ 5437.79 5st2.42 s223.6s s40s.86 5s81.s3 s768.88 5947.61 5t,!26.92 Page 90 of 1 10 Final Draft January 29,2020 Service Descriptions City of San Juan Capistrano Rate Schedule Effective 7lLl2O20 -6l3ol2o2t Rate Organics Services Food Establ¡shment (Commercial) 1x p/wk 2xp/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xp/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 1 x p/wk 2xp/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Green Waste (Multi-Family) L x p/wk 2xplwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk L x p/wk 2xplwk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk 2-yard Organics 2-yard Organics 2-yard Organics 2-yard Organics 2-yard Organics 2-yard Organics 35-gallon Organics cart 35-gallon Organics cart 35-gallon Organics cart 35-gallon Organics cart 35-gallon Organics cart 35-gallon Organics cart 65-gallon Organics cart 65-gallon Organics cart 65-gallon Organics cart 65-gallon Organics cart 65-gallon Organics cart 65-gallon Organics cart 3-yard Green Waste 3-yard Green Waste 3-yard Green Waste 3-yard Green Waste 3-yard Green Waste 3-yard Green Waste 96-gallon Green Waste cart 96-gallon Green Waste cart 96-gallon Green Waste cart 96-gallon Green Waste cart 96-gallon Green Waste cart 96-gallon Green Waste cart Szg.gs 5L32.27 s180.ls s23s.94 s286.s1 S336.32 s20.63 s34.10 s46.40 s60.82 S73.s4 s86.71 s20.63 5¡q.ro 546.4O s60.82 573.s4 Sso.zr $121.6s s201.08 5273.s6 s3s8.6s s43s.9s $sr.r..2s s20.63 534.10 $46.40 s60.82 573.s4 S86.71 Page 91 of I 10 Final Draft Jan 29,2020 City of San Juan Capistrano Rate schedule Effective 7lLl2O2o - 6130l2o2L RateService Descriptions Commercial Miscellaneous Fees One-Time Additional Pickup (Refuse) one-Time Additional Pickup (Recycling) One-Time Additional Pickup (Organic) Contamination Charge Per Occurrence Locking Bins lnstallation Overflow Charge Container Cleaning Steam Cleaning Enclosure Commercial Bulky ltem Additional Bulky ltem Same Visit Additional Container Exchange Set-Up Service Call Back Push Rate 0 - 25 Feet Push Rate 26 - 50 Feet Push Rate 51 - 75 Feet Push Rate 76 - 100 Feet One-Time Additional Pickup (Refuse) One-Time Additional Pickup (Recycling) One-Time Additional Pickup (Organic) Contamination Charge Per Occu rrence Locking Bins lnstallation Overflow Charge Container Cleaning Steam Cleaning Enclosure Service Call Back Push Rate 0 - 25 Feet Push Rate 26 - 50 Feet Push Rate 51 - 75 Feet Push Rate 76 - 100 Feet Compactor Cleaning Redelivery Charges - commercial Commercial Bin Damage Charge Commercial Bin Replacement due to damage Special Event Trash boxes Special Event Recycle boxes Special Event box liners (Case) NSF - Returned Check Emergency Collection, hourly rate for (L) crew & (L) vehicle Bin Bin Bin Bin Refuse Bin Recycling Bin Organics Bin Bin Bin Bin Bin Bin Ss¿.+s 27.24 23.79 Ss4.48 $31.s3 $s+.qa S7o.3s 5ro2.2o $sz.+s S1s.1s ss4.18 Sso.oo Sso.oo N/C 29.32 58.64 87.96 $43.s8 2r.79 19.03 s43.s8 s2s.s4 s43.s8 ss6.28 NA $4o.oo N/c 23.45 46.92 70.37 Refuse Cart Recycling Cart Organics Cart Cart Cart Cart Cart Cart Cart Cart Cart Cart Cart s168.ss S61.80 s183.60 Ss13.86 s8.oo Ss.oo s2s.oo s2s.00 5t29.76 Late Fees (L.5% oi balance) (Monthly) Page92 of I l0 Final Draft January 29,2020 Service Descriptions City of San Juan Capistrano Rate Schedule Effective 711.12020 - 61301202l Rate Manure Collection Bins service 1 x p/wk 2xp/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Cart service 1x p/wk 2xp/wk 3 x p/wk 4 x p/wk 5 x p/wk 6 x p/wk Roll off and Temporary Services 1.5yd Manure L.5yd Manure 1.5yd Manure 1.5yd Manure 1.5yd Manure 1.Syd Manure 96-gal Manure Cart 96-gal Manure Cart 96-gal Manure Cart 96-gal Manure Cart 96-gal Manure Cart 96-gal Manure Cart S12s.oo S182.68 s240.39 s298.10 SEss.ss 5413.s4 s3s.oo ss1.1s S67.3i. 583.47 see.63 S11s.79 Temp Bin Service, 3-Yard CUB Delivery charge per bin Clean-up Bin Weekly (7 day rental) Daily rental fee (after 7 days) Trip Charge Relocation Overweight Charge - Bin Exceeds 400 lbs Permanent Roll off Services (rates are per pull) Drop-off box - plus actual landfill fee or processing fee Compactor - plus actual landfill fee or processing fee Landfill Rate Per Ton C&D Processing Rate Per Ton Manure Processing Rate Per Ton Organics Processing Rate Per Ton Temporary Roll off COD Rates - Processing Delivery charge per bin 40-yard rolloff 1O-yard rolloff Roll off Daily Rental after 7 days Manure Roll off Services (rates are per pull) Roll off manure - haul rate, single box + processing Manure processing per ton Roll off Miscellaneous Fees Rolloff trip charge Roll off trip relocation Roll off overweight fee - Exceeds 10 tons Roll off Box Steam Cleaning Redelivery Charges (up to 5 tons) (up to 8 tons) Ssz.rs stot.42 s6.3s Sog.sz So¡.sz s83.04 $1ss.oo s22s.s9 S38.e8 s74.7L s26.36 Sros.zr Ssz. ra Ssos.s¡ 5792.6s 5L2.76 Si.gs.oo s26.36 Sgs.sz sto2.20 5s27.7o $10s.s3 Ssz.ra Page 93 of 1 10 Final Draft January 29,2020 EXHIBIT B. LIST OF CITY BUILDINGS AND FACILITIES o Blas Aguilar Adobe (31806 El Camino Real) o City Hall Civic Center (32400 Paseo Adelanto) . Community Center Property, Sports Park and Community Gardens (25925 Camino Del Avion) . City Gymnasium (1 Via Positiva) . Congdon House (32701Alipaz St) . Head Start Facility (31485 El Camino Real) o Kindergarten Readiness Facility (31411 LaMatanza) o Lacouague Building (31421 La Matarua) o Montanez Adobe (31745 Los Rios) o Northwest Open Space, including Dog Park (30291 Camino Capistrano) . Nydegger Building and T.J. Meadows Building (3 I 421 La Matanza) o San Juan Capistrano Library and La Sala Auditorium (31495 El Camino Real) . Railroad Platform/Depot (26701 Verdugo Street) o Stone Field and Community Office (corner of Camino Capistrano and La Zanja Street) . 7605 Reservoir (2727I Calle Delgado) o Acu Canyon Park (Camino Las Ramblas) . Arce Park (corner of Alipaz Street and Del Obispo Street) o Arroyo Park (corner of Via Parra and Calle Arroyo) o Bonita Park (Via Del Rey) o Creekside Park (Calle Jardin) . Cook Cordova Park (28336 Calle Arroyo) o Cook La Novia Park(28202 Calle Anoyo) o De La Vista Park (Avenida De La Vista) o Descanso Park (32506 Paseo Adelanto) o El Camino Real Park (Old San Juan Road) o Four Oaks Park (Via Madonna and Calle Santa Ynez) o Historic Town Center Park (31852 El Camino Real) o Junipero Serra Park (Calle Santa Rosalia) o LaNovia Park (La Novia and San Juan Creek Rd) o La Ronda Park (Camino La Ronda) o Los Rios Park (31781 Paseo Adelanto) o Lucana Park (Calle Lucana) o Mission Bell Park (Alipaz Street) o Reata Park and Event Center (28632 Ortega Highway) . Rio Oso Park (Avenida De La Vista) o San Juan Creek Park (San Juan Creek Road) o Veterans Park (Camino Capistrano) 1 Page94 of 110 Final Draft January 29,2020 2 J 4 5 6 7 8 9 10 11 t2 13 t4 15 t6 t7 18 t9 20 2l 22 EXHIBIT C. LIST OF SPECIAL EVENTS o Rotary Car Show o Taste of San Juan o San Juan Fiesta Association Swallow's Day Parade o Swallow's Day Pancake Breakfast o Boys and Girls Club Gala o Historical Society Open House o Missionfest o Rancho Mission Viejo Rodeo o Green Feast o San Juan Historical Society Events o San Juan Chamber of Commerce Events . Spring "Eggstravaganza" (Egg Hunt) o Fourth of July Carnival o Fourth of July Fireworks Event o Inner Coastal Clean-up Day o San Juan Summer Nights Concert Series . Relay for Life Event o E-waste and Shredding Event o Christmas Tree Lighting 23 Page 95 of 1 10 Final Draft January 29,2020 24 25 26 EXHIBIT D. LIST OF CONTRACTOR'S FACILITIBS Facility Summary Table Facility / Address Relationship Processecl Matelial Dates of Use q) Þoä ËZ t) ô¿ o (! c)0) (l ùI ox o cn tr- o CR&R Recycling (Western) Stanton, CA 90680 Clean MRF Owned and opcrated by CR&R In use ancl will continue X Rancho Mission Viejo Composting Lakeview, CA 92555 swrs # 33-AA-0321 Owned and operated by CR&R I I I 12020 until 6 I 30 12020 for residential cornposting X ROAR - Perris MRF and AD Facility Perris, CA 92570 swrs # 33-AA-0239 Owned and operated by CR&R Starting 71112020 X X South County C&D Material Recovery Facility San Juan Capistrano swrs # 30-A8-0395 Owned and operated by CR&R ln use and will continue X Residuals Recovery Group, lnc. Ontario, CA swrs # 36-AA-0483 Operatcd by Residuals Recovery Group, Inc. Five vear agfeement ln use and will continue X RWP Recycled Wood Products Ontario 2 Pornona, CA swrs # 36-A,A-047'7 Operatcd by Recycled Wood Products. Five year agl'eement In use and will continue X WM CORe Orange, CA swts # 30-AB-0363 Opcrated by Waste Managcrnent. Three year asreement. In use ancl will continue X Orange County Landfill System - Brea, Iline, San Juan Capistrano Owned and opcrated by County of Orange, Waste Disposal Agreement with City ancl CR&R ln use and will continue. ADC will stop as of t2t3Ut9. X South Yuma County Landfill Organics Cornposting Yurna. AZ Owned and operated by CR&R Alternativc as needed X 21 Page96of110 Final Draft January 29 ,2020 28 29 30 31 32 JJ 34 35 36 3l 38 39 40 4l 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 6l 62 63 64 65 66 67 68 69 CR&R Intermediate Processing Center (Western Ave Clean MRF) ll29l'Western Avenue Stanton, CA 90680 Material to be processed: All Single Stream and Single material source separated recyclables Waste Stream Origination: o Residential Commingled Recyclable Cart o Commercial Commingled and Single Stream Recycling Bins and Carts o Source Separated Recyclables from Roll off Boxes and Roll off Box Compactors Rancho Mission Viejo Composting Facility 31641 Ortega Hwy (adjacent) San Juan Capistrano, CA Timeline: Green waste composting will begin llll2020 Material to Be Processed: o Source separated yard trimmings Waste S Orisination: Residential Yard Trimmings, Commercial and Industrial yard trimmingsa ROAR Anaerobic Digestion Facility 1706 Goetz Road Perris, CA92510 Timeline: Processing of co-collected yard trimmings and food scraps will start 7lI/2020. Material to Be Processed: o Source separated yard trimmings . Co-collected yard trimmings and food scraps Small pieces of food soiled paper are acceptable in the material stream. In addition, the facility can also accept organics liquids such as cheese whey, fats, oils and grease (FOG). Food soiled paper is not considered contamination. 'Waste Stream Orieination: o Residential Yard Trimmings, co-collected yard trimmings and food scraps o Commercial/Multi-family yard trimmings, co-collected yard trimmings and food scraps Page97 of 110 Final Draft January 29,2020 70 7l 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 9l 92 93 94 95 96 97 98 99 100 103 t04 105 106 t07 108 109 South Orange County MRF and Transfer Station 3164l Ortega Highway San Juan Capistrano, CA Material to be processed: All Construction and Demolition Debris generated from Clean-up Bins and Roll off Boxes Waste Stream Origination: o Residential and Commercial Construction and Clean Up Bins and Roll Off Boxes o Source Separated recyclable construction materials from Clean Up Bins and Roll offs o Capability to process commercial and multi-family mixed processing streams. WM Orange CORe 2050 N. Glassell Orange, CA Three year agreement with Vy'aste Management Material to Processed Source separated food scrapsa Waste C)risination a Commercial/Multi-family food scraps 101 102 Residuals Recovery Groupo Inc. 7325 Edison Road Ontario, CA Five year agreement as previously listed. Material to Be Processed: o Source separated manure and stable bedding Waste Stream Origination: o Largevolume generators such as stables, polo fields, and large-scale equine facilities RWP Recycled Wood Products Ontario 2 13905 Walker Ave Ontario, CA Five year agreement as previously listed. Material to Be Processed: o Source separated manure and stable bedding Waste Stream Origination: o Largevolume generators such as stables, polo fields, and large-scale equine facilities 110 111 Page 98 of 1 10 tt2 113 tt4 115 116 t17 118 a a Final Draft January 29,2020 Disposal Facilities County of Orange Landfill System o Olinda Landfill, 1942 North Valencia Ave., Brea, CA 92823 (SWIS No. 30-AB-0035) Frank R. Bowerman Landfill, 11002 Bee Canyon Access Rd., Irvine, CA 92602 (SWIS No. 30-AB-0360) Prima Deshecha Landfill, 32250LaPaIaAve., San Juan Capistrano ,CA92675 (SWIS No. 30- AB-0019) The County of Orange owns and operates all three landfills. The County landfill system will be used for disposal as required under the current Waste Disposal Agreements (WDA) between the County, City of San Juan Capistrano, and CR&R. The primary landfills used for City of San Juan Capistrano include Prima and Frank R. Bowerman. Both landfills have guaranteed capacity for the city under the terms of the WDA agreement. South Yuma County Landfill 19536 South Avenue lE Yuma, A2.85365 Alternative facility as needed. Material to Be Processed: o Source separated food scraps Waste Orisination: CommerciaVMulti-family food scraps 119 120 t2r 122 123 t24 125 126 r27 128 r29 130 131 r32 133 134 135 a Page99 of 110 Final Draft January 29,2020 136 t37 EXHIBIT E. LIST OF SUBCONTRACTORS No subcontractors.138 Page 100 of 1 10 Final Draft January 29,2020 139 140 EXIIIBIT F. SOURCE SEPARATION PROGRAM IMPLEMENTATION PLAN Year: 2020TasksAgency Responsible XNew Contract Begins Citv CR&R XSubmittal of Outreach and Education Plan XCR&R & City Letter from City (Mayor) announcing new programs XCR&RRecycling Coordinator Assisned XCR&RDevelop New Residential Recycling Brochure XDevelop New Commercial Recvcline Brochure CR&R XCR&RDevelop New Multi- family Recycling Brochure XCity Review and Approvals of Brochures City XCR&R XSan Juan Capistrano City Newsletter articles XIntroductory mailer sent to customers CR&R XCR&RSFD Cart Lid graphics development and City approval XTrain Customer Service on new contract deliverables CR&R City XIfdesired, schedule City Council Workshop meeting XCR&RCity Specific Website Pages X X X X X XXXXXXXCommence Recycling Outreach & Field Survevs CR&R X XCR&RCommunity workshops XXXCR&R XQuarterly Environmental News X XXXXXXXXXXXChamber of Commerce interaction CR&R XXXXXXDistribute New Containers as needed CR&R PT]IìI,IC OIJ'I'RBACH & EDUCAT'ION PLAN Jan ['eb Mar April May .lun Jul Aug Sep Oct Nov Dec Page 101 of110 Final Draft January 29,2020 Year: 2020Agency Responsible Tasks XCR&RBegin Delivering SFD Organics to AD Processing XCR&RBegin source separated commercial recycling þrogram XBegin source separated commercial organics þrogram CR&R PUBLIC OT-JTREACH & EDUCATION PLAN May Jun Jul Aug Sep Oct Nov DecJan Feb Mar April t4l Page 102 of 110 Final Draft January 29,2020 t42 143 t44 t45 146 147 r48 149 150 151 152 1s3 154 155 156 t57 158 159 160 161 t62 163 t64 165 166 t61 168 169 n0 17r 172 173 174 t75 176 177 178 179 180 181 r82 183 184 185 EXHIBIT G. SUSTAINABILITY AND DIVERSION PLAN Residential Green Waste: CR&R is currently utilizing ADC capacity with the Orange County landfill system for the City's residential green waste material. With the sunset of diversion credit as of 1213112019 per AB 1594, CR&R will utilize the Rancho Mission Viejo facility located in San Juan Capistrano for green waste composting. This facility is currently in use for ADC grinding and effective llll20l9, green waste material will be composted. As of July 1,2020, residential green waste collection program will expand to include food scraps and provide the city with a residential organics program ahead of the requirements in SB 1383. Curbside organics material will consist of co-collected green waste and food scraps. This material will be taken to our San Juan facility for transfer to the ROAR Anaerobic Digester facility located in Perris, CA. Outreach activities will commence prior to the implementation date and are outlined in our implementation and outreach plan. Commingled Recyclables: Commingled recyclables collected from the residential program or source separated commercial and multi-family customers is currently processed at our Western Avenue clean MRF. We will continue using this facility for commingled recyclables. Commercial Food Scraps: Source separated food scraps collected from businesses are currently processed at WMCORe co- digestion facility in Orange. CR&R will continue to use this facility. In the event there are any changes with the facility operation, CR&R has identified Puente Hills and South Yuma County Landfill as an alternative facilities for processing. South Yuma County Landfill is located in Yuma, Arizona and fully permitted to compost food scraps in addition to green waste. C&D Material: C&D material collected from temporary roll off activity will continue processing at the South County MRF to ensure compliance with the City's C&D ordinance as well as state green building requirements. Manure: CR&R recognizes there is a significant diversion opportunity for manure material collected in the City. We have identified two processing facilities able to accept the city's manure for diversion processing. Both facilities are planned for use to ensure maximum diversion credit for the City's manufe. Landfill and Residual Waste: CR&R will continue to use the County of Orange landfill system for waste collected as trash or residual material from processing operations. Use of the County landfill system is specified under the waste disposal agreement (WDA). The primary landfill used for the City is Prima Deshecha. Page 103 of110 186 187 188 189 190 191 t92 t93 Final Draft January 29,2020 EXHIBIT H. COMMUNITY OUTREACH AND EDUCATION PLAN Contractor has developed a multifaceted plan to be conducted in two phases. Phase one will begin prior to the first collection under our new agreement and will focus on introducing the new recycling programs and additional service enhancements to the public. The second phase will coincide with the implementation of our services and provide ongoing promotion of the programs. Following the transition, via educational and public outreach programs, Contractor will continue to keep San Juan Capistrano residents and businesses informed about new services, laws, and advancements. Contractor will arrange a meeting with designated City Staff and key members of the transition team following the award of this franchise agreement. Together we will review and customize the informational material for distribution and create anticipated schedules for introduction to residents and business. Each item will be customized to uniquely represent San Juan Capistrano and emphasize our service commitment to the community' Contractor has a successful history of providing smooth and seamless service transitions for the jurisdictions we presently service. In the City of San Juan Capistrano, we will plan to employ a combination of the following public education transition methods that have been successful in other communities and conforming to the responsibilities outlined in the agreement in order to inform the community of the upcoming changes to their solid waste and recycling services. This plan can be tailored as necessary to accommodate the needs of the community and implernentation timeline. 206 Phase I -troduction Contractor will draft an initial mailing letter introducing the.transition and programs to the residents and businesses. Contractor will prepare a colorful postcard mailer explaining the various programs and the different available service options. A detailed brochure willbe mailed to the resident which describes the various services and types of materials to be recycled. Brochures will also be made available to residents and businesses throughout the agreement term and placed at designated community locations such as City Hall and other City facilities. The City of San Juan Capistrano will have a separate page on Contractors website which outlines our services. Contractor will ensure any updates relating to the new franchise agreement will be implemented for San Juan Capistrano. Our IT group can also work with the City to provide a link from the City's website to our website. If available, Contractor can work with the local cable provider in order to provide a Public Service Announcement outlining future services as well as our contact information. Upon completion of these tasks, Contractor executes the second phase of the community education process. 194 195 t96 197 198 r99 200 201 202 203 204 205 207 208 209 2t0 2rl 212 213 2t4 215 2t6 2t7 2t8 2t9 220 225 226 a a a a a221 222 223 224 Phase II - On-soing Education Once Contractor transitions the services for the City, Contractor will continue to implement a full range of public relations strategies to encourage participation in both the residential and Page 104 of I 10 221 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 241 248 249 250 251 252 255 256 257 2s8 259 260 261 253 254 Final Draft January 29,2020 commercial integrated waste management programs. Upon completion of our initial meeting with the City Staff, several alternatives will be outlined to promote solid waste collection, green waste and recycling activities. Press releases, advertising, media interviews, feature articles, and letters to the editor, as well as public service announcements and the use of public access television are some of the tools Contractor enlists in its communications campaign. These avenues of information have proven successful to Contractor in the past and will play an integral part in the success of each program in the City of San Juan Capistrano. Contractor also provides a wide array of multilingual materials. These materials are used as handouts at speaking engagements, special events, or placed in public information areas within the city. We also employ a number of bilingual Customer Service Representatives which can help answer questions and provide information to our diverse customer base. Contractor will provide a quarterly Environmental News publication containing information about programs, upcoming events, and water quality items. This may be inserted into the quarterly residential billing. In addition, we provide multi-family customers with the same publication through their Property Management for reproduction as needed. The material may be provided in PDF format for reproduction into community newsletters. Business recycling guides are also provided to customers to encourage participation in a source separated recycling program. On-going education items: o Contractor's primary goal will be to ensure all commercial and multi-family customers are in compliance with AB 341, AB 1826, and SB 1383. We plan to follow-up with all non- compliant customers who did not initially start a recycling program during the transition period and continuously encourage expansion of current recycling programs where available. o In addition to these public education avenues, Contractor will continuously work towards engaging and educating the public through community and social media outreach. o Corrective Action "Red-Tag" Notices - notification system for use when inappropriate items are placed out for collection or placed in an inappropriate container. o Newsletters distributed as bill inserts. o Support of articles and press releases for City publications' o 'Website will include information about "Reduce, Reuse, Recycle", recycling guidelines, holiday schedules, Sharps information, HHW collection, Composting workshops, and other helpful information. Additionally, Contractor will provide the City with assistance on updating City's website with required information on regulations, programs, events, and other information for public review to assure compliance with CalRecycle. o Support of Edible Food Recovery program including educating commercial edible food generators, and providing records of site visits, conducting education efforts, and listing food recovery organizations in outreach materials. 262 263 264 Page 105 of 1 10 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 28r 282 283 284 285 286 287 288 289 290 291 292 293 294 29s 296 297 298 299 Final Draft January 29,2020 CommuniW Outreach Contractor's team of professionals play a key role in promoting the integrated waste management programs within the cities it serves by actively involving themselves in the activities and fund- raising needs of the community. Community involvement has always been an important part of Contractor's commitment to the cities it serves. This is accomplished in several ways such as attendance and participation in key organizations and special events within the community. Examples of these events will include: o San Juan Fiesta Association o Swallow's Day Parade o Mission San Juan Capistrano o San Juan Capistrano Historical Society o Rotary Club of San Juan Capistrano o Boys and Girls Club of Capistrano Valley o The Ecology Center o Fourth of July Carnival o Goin Native Therapeutic Gardens o Inner Coastal Cleanup Day o Summer Concert Series . Relay for Life o Christmas Tree Lighting o Monetary contributions in support of worthy local causes o Promotion of activities in the schools, such as science fairs, principal for a day, scholarship fundraising, and special assemblies . Board and committee participation on local Chamber of Commerce Contractor recognizes that public outreach and education is ongoing and we are committed to updating information as necessary to promote program participation and conform to the requirements of the agreement. Proposals for Service Contractor's Sustainability Coordinator will prepare a plan outlined in a written proposal for service to commercial and multifamily customers. A written service proposal will outline complete descriptions of the current service, including type of container(s) and cost. It will also outline the proposed service with a projection of monthly cost. Once a proposal has been provided, Contractor will provide answers to questions and also a method for Commercial and Multi-Family owners or managers to ask and receive answers to follow-up questions about the program via telephone, e-mail or text. It is the goal of the Sustainability Page 106 of I l0 300 301 302 303 304 305 306 307 308 309 310 311 3t2 313 314 315 3r6 3t7 318 3t9 320 321 322 323 324 325 326 327 328 329 330 331 332 JJJ 334 33s 336 337 338 339 340 34r Final Draft January 29,2020 Coordinator to on board customers with a sustainable recycling program and to provide appropriate outreach and education to implement the most beneficial Recycling program(s) for that Customer. Program Tracking Contractor Sustainability Coordinator creates, maintains and updates a Red/Green Tracking Spreadsheet. The spreadsheet is updated monthly with service changes and stored in a public folder accessible to both City Staff and Contractor. The purpose of the Red/Green Tracking Spreadsheet is to document all contacts made with Customers conceming implementation of Diversion programs, and Contractor's completion of the program implementation tasks. Each Diversion program that is fully implemented and operating at a Customer's premises shall be coded in green including any customer with approved exemptions or approved third party haulers. Each Customer premises that does not have each specific required Diversion Program shall be color-coded in red. Contractor makes detailed notes in the Red/Green Tracking Spreadsheet about all Customer contacts (telephone, mail, e-mail, on-site meetings, observations and inspections) and all pertinent information on issues, problems, troubleshooting and solutions conceming program implementation at each Customer's location(s). Over time, new businesses will open and existing businesses will close or may change locations. As this ocsurs, Contractor updates the Red/Green Tracking Spreadsheet by noting thereon, the change in location, business, owner/manager, and new contact information. The infonnation from the Red/Green Tracking Spreadsheet is discussed and reviewed in monthly meetings. Accounts in the City are sorted based on cubic yards generated per week from greatest generator to lowest. For organics, this is further broken down to identi$' level of compliance by tier with the minimum threshold of 4 cubic yards of waste as of January 2019 (tier 3). The same method is applied to commercial customers for 48341 compliance. Multi-family complexes are identified based on number of units. If the property has five or more units, it would meet the threshold to comply with A8341 and 481826. Customers that meet any of the thresholds identified by 48341 or 481826 are targeted for participation in recycling programs starting with the largest generators. Waste audits and assessments are conducted to determine the amount of organic material or recycling material in the waste bin(s) and help develop a recycling program if the customer is not already participating. The owner andlor property manager is informed about the requirements of 481826 and 48341 as well as the benefits of participating in a recycling program. These benefits include the possibility of a cost savings incentive for the customer or personal satisfaction of doing their part to help protect the environment. During the outreach and evaluation process, the owner and/or property manager is asked if there are any internal organic programs or recycling programs at the location. These programs can help determine the types of organic recycling services that can be offered to the customer or make adjustments to service recommendations. Internal customer recycling programs are noted in customer's account in Contractor's customer relationship management (CRM) software. The owner andlor property manager is sent an organic and/or recycling proposal reflecting what was documented during the waste audit. If the proposal is accepted, the sustainability coordinator begins the process ofoutreach and service changes necessary for the proposed recycling andlor organics services. Once the program is implemented, the coordinator will make periodic site visits Page 107 of 1 10 342 343 344 345 346 347 348 349 350 351 352 3s3 354 355 3s6 357 358 3s9 360 361 362 363 364 365 366 367 368 369 370 37r 372 373 374 375 316 377 378 379 380 381 382 Final Draft January 29,2020 to follow up on the program and ensure it is running smoothly. The customer's account is then documented as being in compliance with 48341, 481826 or both. Monitorins of Service Contractor's Sustainability Coordinator continuously monitors recycling programs for both participation and contamination. When we find a customer account that is not participating, the Sustainably Coordinator will leave or direct mail the customer education materials describing the programs and how to participate. This may also include a hang- tag on a bin or cart that will alert them about acceptable materials for the program. The Sustainability Coordinator also rechecks the customers that were tagged within sixty (60) days to see if the contamination has been reduced or eliminated. The notices of contamination are entered into the customer account notepad which are available for query to create a full list of accounts requiring follow up and for City reporting purposes. Status Meetines with the CitY Contractor will arrange a meeting with the designated City Staff and Contractor's City Liaison, Sustainability Coordinator, Senior Sustainability Manager, and operations staff at least seven to eight weeks before the implementation of all new residential or commercial integrated waste management and recycling programs. Together we will review the developed informational material, the anticipated delivery schedules, as well as any concems that may be anticipated for the start-up. On-going and no later than seven weeks before the implementation of any new residential and commercial integrated waste management program, Contractor will affange a meeting with the designated City staff and Contractor's Transition Team. Together we review the draft informational material, ftnalize and present to the residents and businesses. Contractor also plans on holding monthly meetings with City Staff for at least the first six (6) months after the transition period to review recycling programs, diversion goals, and any issues that arise. Continued Monitoring Accounts in the City are sorted based on cubic yards generated per week from greatest generator to lowest. For organics, this is fuither broken down to identifli level of compliance by tier with the minimum threshold of 4 cubic yards of waste as of January 2019 (tier 3). The same method is applied to commercial customers for 48341 compliance. Multi-family complexes are identified based on number of units. If the property has five or more units, it would meet the threshold to comply with 48341 and 481826. Customers that meet any of the thresholds identified by 48341 or 481826 are targeted for participation in recycling programs starting with the largest generators. Waste audits and assessments are conducted to determine the amount of organic material or recycling material in the waste bin(s) and help develop a recycling program if the customer is not already participating. The owner and/or property manager is informed about the requirements of 481826 and 48341 as well as the benefits of participating in a recycling program. These benefits include the possibility of a cost savings incentive for the customer or personal satisfaction of doing their part to help protect the environment. Page 108 of I 10 383 384 385 386 387 388 389 390 391 392 393 394 Final Draft January 29,2020 During the outreach and evaluation process, the owner and/or property manager is asked if there are aîy internal organic programs or recycling programs at the location. These programs can help determine the types of organic recycling services that can be offered to the customer or make adjustments to service recommendations. Internal customer recycling programs are noted in customer's account in Contractor's customer relationship management (CRM) software. The owner andlor property manager is sent an organic and/or recycling proposal reflecting what was documented during the waste audit. If the proposal is accepted, the sustainability coordinator begins the process of outreach and service changes necessary for the proposed recycling and/or organics services. Once the progfam is implemented, the coordinator will make periodic site visits to follow up on the program and ensure it is running smoothly. The customer's account is then documented as being in compliance with 48341, 481826 or both. Page 109 of 1 l0 Final Draft January 29,2020 395 396 397 398 399 400 407 408 409 410 a EXHIBIT I. CONTAINER/BIN SPECIFICATIONS Contractor may use the Containers approved for use pursuant to the Prior Agreement. All Containers utilized by Contractor shall meet the standards of the industry and shall perform to the reasonable satisfaction of the City Manager in order to be utilized in City. Container sizes specified within this Agreement may vary by manufacturer type and specifications up to 10% more or less in volume than that identified. Each Cart utilized by Contractor shall be labeled on the inside in English and Spanish and with graphics so as to: (1) explairVdepict the items for which it is designated to Collect, and (2) identify the name of Contractor and Contractor's phone number for service related issues, including complaints. In addition, each such Cart shall include information, in a format acceptable to City (such as hot stamping or stickers), regarding Contractor's Bulky Item service, and a phone number that Customers can call to access such service. Any Cart distributed by Contractor in City after the Effective Date shall be newly manufactured and have never previously been used for the Collection of Solid Waste; excepting that Carts which have been refurbished such that they are "like new" may be used so long as their condition is satisfactory as determined by the City Manager. All Carts distributed pursuant to this Agreement shall have an identifying serial number hot stamped into the Cart body, or otherwise have an individual identification demarcation affixed to the Cart in a manner acceptable to the City Manager. Upon request of any Customer, Contractor shall provide Bins with lids that close securely and which are capable of being locked at rates that do not exceed those set forth in Exhibit A. Contractor shall be responsible to provide Carts, Bins, Split Bins, and Roll off Boxes in colors and labeling that meet SB 1383 regulatory requirements, and Contractor shall not receive additional compensation for providing Carts, Bins, Split Bins, and Roll off Boxes that comply with SB 1383 regulatory requirements. 401 402 403 404 405 406 o 4lt 4t2 4t3 a 414 415 4t6 4r7 418 419 420 a Page 1 10 of 1 10