Document elcerrito_gov_doc_0cd240c67b

Version: 8/30/13 AGREEMENT between the WEST CONTRA COSTA INTEGRATED WASTE MANAGEMENT AUTHORITY and WEST COUNTY RESOURCE RECOVERY, INC.; WEST CONTRA COSTA SANITARY LANDFILL, INC.; GOLDEN BEAR TRANSFER SERVICES, INC.; RICHMOND SANITARY SERVICE, INC.; AND, KELLER CANYON LANDFILL COMPANY, INC. for POST-COLLECTION RECYCLING, AND DISPOSAL SERVICES ---PAGE BREAK--- Version: 8/30/13 i TABLE OF CONTENTS 1 Page 2 RECITALS, DETERMINATIONS, AND FINDINGS - 1 - 3 ARTICLE 1 DEFINITIONS - 4 - 4 ARTICLE 2 TERMS OF AGREEMENT - 5 - 5 2.1 Effective Date - 5 - 6 2.2 Term - 5 - 7 2.3 Survival of Certain Provisions - 5 - 8 2.4 Conditions to Effectiveness of - 6 - 9 ARTICLE 3 OBLIGATIONS OF THE AUTHORITY - 9 - 10 3.1 Facility Designation - 9 - 11 3.2 No Tonnage Obligation or Limit on Waste Prevention - 9 - 12 ARTICLE 4 OBLIGATIONS OF - 10 - 13 4.1 Scope of Services - 10 - 14 4.2 Permits - 14 - 15 4.3 Facility Specifications - 15 - 16 4.4 Ownership of Authority Materials - 16 - 17 4.5 Rejection of Unpermitted Waste at Landfill - 16 - 18 4.6 Approved Facility and HHW Facility Days and Hours of Operation - 17 - 19 4.7 Equipment and Supplies - 17 - 20 4.8 Traffic Control and Direction - 17 - 21 4.9 Scale Operation - 18 - 22 4.10 Personnel - 19 - 23 4.11 Safety - 19 - 24 4.12 Alternative Facilities - 19 - 25 4.13 Invoicing - 20 - 26 4.14 Quarterly and Annual Reports - 20 - 27 4.15 Change in Applicable Law Affecting - 22 - 28 4.16 Closure and Post-Closure of Landfill - 22 - 29 4.17 Right to Enter Facility and Observe Operations - 23 - 30 4.18 Provision of Emergency Services - 23 - 31 4.19 Service Standards - 24 - 32 4.20 Modifications to Scope of Service - 24 - 33 4.21 Triennial Review of 75% Recycling - 25 - 34 ARTICLE 5 CONTRACTOR COMPENSATION - 28 - 35 5.1 General - 28 - 36 5.2 Initial Rate - 28 - 37 5.3 Annual Adjustments to the Rate - 32 - 38 5.4 Establishment of Post-Collection Rate - 37 - 39 5.5 Other Adjustments to Compensation - 38 - 40 ARTICLE 6 INDEMNITY, INSURANCE, AND PERFORMANCE BOND - 40 - 41 ---PAGE BREAK--- Version: 8/30/13 ii 6.1 Defense and Indemnification - 40 - 42 6.2 Insurance Policies - 42 - 43 6.3 Performance Surety - 44 - 44 ARTICLE 7 DEFAULT BY CONTRACTOR AND TERMINATION - 45 - 45 7.1 Contractor Default - 45 - 46 7.2 Right to Suspend or Terminate Agreement - 47 - 47 7.3 Right to Perform - 48 - 48 7.4 All Other Available Remedies - 48 - 49 7.5 Authority's Remedies - 49 - 50 7.6 Waiver - 49 - 51 ARTICLE 8 OTHER AGREEMENTS OF THE PARTIES - 50 - 52 8.1 Relationship of Parties - 50 - 53 8.2 Compliance with Law - 50 - 54 8.3 Governing Law - 50 - 55 8.4 Further Assurances - 51 - 56 8.5 Assignment - 51 - 57 8.6 Binding on Successors - 53 - 58 8.7 Parties in Interest - 53 - 59 8.8 Services Performed At Contractor’s Sole Expense - 53 - 60 8.9 Notices and Communication - 53 - 61 8.10 Authority Contract Manager - 54 - 62 8.11 Duty of Contractor Not To Discriminate - 55 - 63 8.12 Force Majeure - 55 - 64 8.13 Maintenance of Records - 55 - 65 8.14 Right to Inspect Records - 56 - 66 8.15 Compilation of Information for State Law Purposes - 57 - 67 8.16 Right to Demand Assurances of Performance - 57 - 68 8.17 Dispute Resolution - 58 - 69 8.18 Criminal Activity of Contractor - 60 - 70 8.19 Liquidated Damages - 61 - 71 8.20 Guaranty of Contractor's Performance - 62 - 72 8.21 Exercise of Discretionary Actions - 63 - 73 8.22 Jurisdiction, Venue - 63 - 74 8.23 Costs and Expenses - 63 - 75 ARTICLE 9 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR - 64 - 76 9.1 Accuracy of Representations - 64 - 77 9.2 Representations and Warranties Regarding Negotiation of Agreement - 64 - 78 ARTICLE 10 MISCELLANEOUS PROVISIONS - 67 - 79 10.1 - 67 - 80 10.2 Section Headings - 67 - 81 10.3 Interpretation and Construction - 67 - 82 10.4 Amendment - 68 - 83 10.5 Severability - 68 - 84 ---PAGE BREAK--- Version: 8/30/13 iii 10.6 Costs of Enforcing Agreement - 68 - 85 10.7 Authority - 69 - 86 10.8 Counterparts - 69 - 87 88 89 TABLE OF EXHIBITS 90 Page 91 EXHIBIT 1 Definitions 1 92 EXHIBIT 2.4.6 Enhanced Collection Services 1 93 EXHIBIT 4.10 (or 4.1.9) Public Education and Outreach 1 94 EXHIBIT 4.14 Reporting 1 95 EXHIBIT 6.2 Insurance 1 96 EXHIBIT 8.19 Liquidated Damages 3 97 EXHIBIT 8.20 GUARANTY AGREEMENT 1 98 EXHIBIT 10 CORPORATE SECRETARY'S CERTIFICATE 1 99 100 101 ---PAGE BREAK--- Version: 8/30/13 - 1 - This Agreement is entered into by and between the West Contra Costa Integrated Waste Management 102 Authority (Authority) and West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, 103 Inc., Golden Bear Transfer Services, Inc., Richmond Sanitary Service, Inc. (“RSS”) and Keller Canyon 104 Landfill Company, Inc. (operating subsidiaries of Republic Services, Inc. and hereinafter collectively 105 referred to as "Contractor") (together, the “Parties”) for the Transfer, Transport, Recycling, Composting, 106 and Disposal (Post-Collection Services) of Solid Waste, Recyclable Materials, Dry Materials, Organic 107 Materials, and Construction and Demolition Materials from the cities of Hercules, Pinole, Richmond, and 108 San Pablo (collectively the Member Agencies of the Authority and hereinafter referred to as "Member 109 Agencies") and certain portions of the unincorporated areas of the County of Contra Costa pursuant to 110 a franchise collection agreement between RSS and the County (that historically have been within the 111 Authority’s service area including: East Richmond Heights, North Richmond, Montalvin Manor, Tara Hills, 112 and El Sobrante) (together the Member Agencies and County are hereinafter collectively referred to as 113 “Franchise Agencies”) on the Service Commencement Date of January 1, 2014. 114 RECITALS, DETERMINATIONS, AND FINDINGS 115 This Agreement is entered into with reference to the following facts, circumstances, determinations and 116 findings made by the Board Members of the Authority: 117 WHEREAS; the Legislature of the State of California, by enactment of the California Integrated Waste 118 Management Act of 1989 (Act) (California Public Resources Code Section 40000 et seq.), has declared 119 that it is in the public interest to authorize and require local agencies to make adequate provisions for 120 Solid Waste management within their jurisdiction; and 121 WHEREAS; the State of California has found and declared that the amount of refuse generated in 122 California, coupled with diminishing Disposal capacity and potential adverse environmental impacts 123 from landfilling and the need to conserve natural resources, have created an urgent need for State and 124 local agencies to enact and implement an aggressive integrated waste management program. The State 125 has, through enactment of the Act, directed the responsible State agency, and all local agencies, to 126 promote Diversion and to maximize the use of feasible waste reduction, re-use, Recycling, and 127 Composting options in order to reduce the amount of refuse that must be Disposed; and 128 WHEREAS, the Authority and Member Agencies entered into a Joint Exercise of Powers Agreement 129 dated April 2, 1991, (“JPA Agreement”), which JPA Agreement was amended by the parties thereto in 130 March 6, 1995; and 131 WHEREAS, on January 1, 1994, the Authority and West County Resource Recovery, Inc. entered into a 132 Service Agreement for Operation of an Integrated Resource Recovery Facility (“IRRF Service 133 Agreement”); and 134 WHEREAS, Contractor, by means of the services and facilities of Golden Bear Transfer Station, Keller 135 Canyon Landfill, West Contra Costa Sanitary Landfill and West County Resource Recovery, provides Post- 136 Collection Services to the Authority through certain agreements between Contractor and the Authority; 137 and 138 ---PAGE BREAK--- Version: 8/30/13 - 2 - WHEREAS, these contracts for Post Collection Services are expiring effective December 31, 2013; and. 139 WHEREAS, In October 2012, the Authority solicited Requests for Qualifications and Statements of 140 Interest from companies in the solid waste and recycling industry for the provision of these Post- 141 Collection Services. Contractor submitted its response and after consideration of the numerous 142 proposals received, on December 12, 2012, the Authority Board of Directors directed Authority staff to 143 negotiate with Contractor for the provision of these services; and 144 WHEREAS; the Authority further declares its intent to approve and maintain reasonable rates for the 145 Post-Collection Services described in this Agreement; and 146 WHEREAS; the Authority selects Contractor to provide for the Post-Collection Services, after 147 undertaking a competitive request for proposals process and having determined that Contractor’s 148 proposal provides the best overall value for the Authority rate payers, and that Contractor has the 149 requisite experience, qualifications, reputation, and capacity to carry out such services; and 150 WHEREAS; local agencies like the Authority and the Franchise Agencies have generally been held liable 151 under federal superfund laws for costs of cleaning up of Hazardous Waste sites that accepted Solid 152 Waste generated within municipalities’ jurisdictions. Therefore the Authority is prudent to provide for 153 terms and conditions of its Solid Waste Disposal in accordance with this Agreement; and 154 WHEREAS; pursuant to its police powers, obtaining a long-term commitment for Disposal of Solid Waste 155 generated within the Authority in accordance with this Agreement is in the best interests of the public 156 health, safety and wellbeing of the citizens throughout the Authority and is fiscally prudent; and 157 WHEREAS; through enactment of the Act, the State of California also recognizes the important health 158 and safety consideration to long-term planning for local governments adequate Disposal needs. The 159 State requires local governments to make adequate provision for at least fifteen (15) years of Solid 160 Waste Disposal capacity to preserve the health, safety and wellbeing of the public; and 161 WHEREAS; this Agreement also advances the objectives of the federal government to encourage 162 environmentally sound Solid Waste management (Resource Conservation and Recovery Act of 1976 163 (RCRA), 42, U.S.C. Section 6941 et. seq.); and 164 WHEREAS; the Keller Canyon Landfill is designated to be the principal Landfill for Solid Waste generated 165 throughout the Authority; and 166 WHEREAS; the Parties agree that the goal of the non-disposal services performed under this Agreement 167 is to further the recycling programs and recycling activities in support the achievement of the recycling 168 rate goal of 75% established by AB 341. The parties agree that the 75% goal is a target and not a 169 guaranteed rate; and 170 WHEREAS; this Agreement helps the Authority achieve the following goals: 171 Securing rate stability over the long term and financial protection from environmental Liabilities; 172 ---PAGE BREAK--- Version: 8/30/13 - 3 - Establishing service and performance standards to help assure that the Authority and all Franchise 173 Agencies meet their respective obligations under law and to protect and preserve the health, 174 safety, and financial assets of its citizens; 175 Giving the Authority tools to monitor Contractor’s compliance with Service terms, administer Solid 176 Waste, Recyclable Materials, Organic Materials, and C&D Material management programs, and 177 enforce the Authority’s rights; and, 178 NOW, THEREFORE, in consideration of the mutual promises, covenants, guaranties, and conditions 179 contained in this Agreement and for other good and valuable consideration, the Parties agree as 180 follows: 181 182 ---PAGE BREAK--- Version: 8/30/13 - 4 - ARTICLE 1 183 DEFINITIONS 184 Unless the context otherwise requires, capitalized terms used in this Agreement shall have the meanings 185 specified in Exhibit 1 to this Agreement, which is attached hereto and incorporated by reference. 186 187 ---PAGE BREAK--- Version: 8/30/13 - 5 - ARTICLE 2 188 TERMS OF AGREEMENT 189 2.1 Effective Date 190 {Note: This section is unresolved at the time of this posting though the parties continue to negotiate. 191 Republic prefers that the agreement not be effective until all collection amendments have been 192 approved. The member agencies would like this agreement to be effective, except for the enhanced 193 services, even if one or more agencies have been delayed in adopting the amendment.} 194 This Agreement becomes effective on the date that the latter of the Parties executes the Agreement or 195 the date that all of the Member Agencies have executed an amendment to their Collection Franchise 196 Agreement(s) at a minimum substantially in the form presented in Exhibit 2.4.6, whichever is later. 197 Except as specifically provided herein, Contractor shall make all necessary preparations required to 198 provide all Services under this Agreement between the effective date and the Service Commencement 199 Date. 200 2.2 Term 201 The Term of this Agreement shall commence on January 1, 2014 (Service Commencement Date) and is 202 set to expire on June 30, 2025. Separately, and with respect to the County of Contra Costa, the term of 203 the Agreement shall be until October 13, 2023 and the County may, at its sole option, extend its 204 participation in the Agreement through the full term without any further changes required to the 205 Agreement by providing no less than thirty (30) days advanced notice in writing. The Parties may agree 206 to extend this Agreement. 207 2.3 Survival of Certain Provisions 208 The following provisions shall survive the expiration or termination of this Agreement: 209 1) All representations and warranties; 210 2) All Indemnities and insurance requirements; 211 3) Obligations to pay any due and payable monetary amounts, or claims for those amounts, 212 including damages, any Disposal Rates, and payment of any amounts accrued and payable upon 213 termination of the Agreement in accordance with Section 7.2; 214 4) Obligations to submit and maintain Records and any reports for periods (or portions thereof) 215 concluded prior to the expiration or termination of this Agreement; and, 216 5) Any other rights and obligations of the Parties stated elsewhere in this Agreement which pertain 217 to operations conducted during the term of this Agreement including, but not limited to, the following: 218 4.2 Permits ---PAGE BREAK--- Version: 8/30/13 - 6 - 4.3 Approved Processing Facility Specifications 4.4 Ownership of Authority Materials 4.13 Invoicing 4.14 Quarterly Report 4.16 Closure and Post-Closure of Landfill 6.1 Defense and Indemnification 6.2 Insurance Policies 8.02 Compliance with Law 8.08 Services Performed At Contractor’s Sole Expense 8.13 Maintenance of Records 8.14 Right to Inspect Records 8.15 Compilation of Information for State Law Purposes 8.17 Dispute Resolution 8.22 Jurisdiction, Venue 8.23 Cost and Expenses 2.4 Conditions to Effectiveness of Agreement 242 2.4.1 New Agreement Supersedes all Others 243 Except as noted in this paragraph 2.4.1, this Agreement executed between Contractor and the Authority 244 shall completely and fully supersede and invalidate any and all prior or existing contracts, agreements 245 and any amendments or understandings between the Authority and Contractor (or specific entities of 246 Contractor), except for provisions that survive expiration or termination of any of the following 247 agreements: including the 1994 IRRF Service Agreement; the 2005 Agreement for the Transfer and 248 Transportation of Franchised Solid Waste and County Area Waste from the Golden Bear Transfer 249 Station; the 2010 Agreement for Organic Material Processing and Composting Services; the 2010 250 Agreement for Disposal of Solid Waste (Keller Canyon Landfill); and the 2013 Amendment to Extend the 251 Terms of Certain Service Agreements with the West Contra Costa Integrated Waste Management 252 Authority. Except as specifically provided in the amendments referenced in Section 2.4.6 of this 253 Agreement, nothing herein shall affect the validity or scope of any solid waste and recycling Collection 254 Franchise Agreement to which Richmond Sanitary Service, Inc. is a party. 255 {Note: The following text is unresolved at the time of this posting though the parties continue to 256 negotiate. Republic and Richmond wish to include a reference to the Richmond/Golden Bear agreement. 257 The Authority and other member agencies wish to remain silent on that agreement.} Include in a 258 separate section 259 Furthermore, nothing herein shall or is intended to apply to or affect the exclusive franchise agreement 260 between Member Agency City of Richmond and Contractor (Golden Bear Transfer Services, Inc.) in any 261 way. This Agreement contains the entire Agreement between the Parties with respect to the rights and 262 responsibilities of the Parties under this Agreement, including the enforcement and administration of 263 this Agreement. 264 Comment agreements broad in the which term surviving th Let's ID the Comment and RSG ha to include t ---PAGE BREAK--- Version: 8/30/13 - 7 - 2.4.2 Release of Claims 265 Upon the execution of the Agreement, the Contractor and the Authority agree that they shall release 266 and discharge each other from all claims they each might otherwise have against the other with respect 267 to the Authority's assertion that it has the contractual flow control right to receive and direct all Solid 268 Waste and Recyclables Collected for the Term of this Agreement pursuant to the 1994 amendment to 269 Franchise Agency Collection Franchise Agreements with the Franchised Collector for Franchise Agencies 270 in the Authority jurisdictional area. Nothing herein is intended to or shall operate as a waiver with 271 respect to such claims or any other claims. The release in this paragraph 2.4.2 is limited solely to claims 272 between Contractor and Authority and does not extend or apply to any claims of Contractor or 273 Franchise Agencies. 274 2.4.3 Environmental Review 275 Prior to the effectiveness of this Agreement, the Parties shall have satisfied all requirements for 276 environmental review under the California Environmental Quality Act, to the extent that it applies to this 277 Agreement. 278 2.4.4 Procurement Reimbursement 279 Contractor shall pay the Authority, as reimbursement for the Authority’s actual cost of procuring and 280 negotiating this Agreement, not to exceed two hundred thousand dollars ($200,000). Such payment 281 shall be made January 30, 2014 or upon the Effective Date of this Agreement whichever is later. Failure 282 to timely make such payment may, in the Authority’s sole discretion, constitute a default subject to the 283 provisions of Section 7 ofinvalidate this Agreement. 284 2.4.5 Cost Baseline Study Reimbursement 285 Contractor shall reimburse the Authority the actual cost, up to fifty thousand dollars ($50,000), for 286 conducting a baseline review of the cost of existing collection programs and projections of the cost of 287 new collection programs provided to Franchise Agencies as part of Contractor’s proposal for the services 288 covered under this Agreement. Such payment shall be made within the latter of thirty (30) days of the 289 Authority’s execution of this Agreement or fifteen (15) days of the final report on such study being 290 issued to the Authority and Contractor. 291 2.4.6 Execution of Amendments for Collection Services 292 {Note: This section is unresolved at the time of this posting though the parties continue to negotiate. 293 Republic prefers that the agreement not be effective until all collection amendments have been 294 approved. The member agencies would like this agreement to be effective, except for the enhanced 295 services, even if one or more agencies have been delayed in adopting the amendment.} 296 {Republic’s preferred language:} Prior to the effectiveness of this Agreement, the Franchise Agencies 297 must have executed an amendment to their Collection Franchise Agreement(s) substantially in the form 298 presented in Exhibit 2.4.6. LANGUAGE IN 2.1 IS WHAT WE WILL NEED AS DISCUSSED IN LAST MEETING. 299 ---PAGE BREAK--- Version: 8/30/13 - 8 - {Authority’s preferred language:} Prior to the effectiveness of Sections 4.1.4, 4.1.6, 4.1.8, and 4.1.9 of 304 this Agreement, the Franchise Agencies must have executed an amendment to their Collection Franchise 305 Agreement(s) authorizing implementation of the enhanced collection services described in Exhibit 2.4.6. 306 307 Comment when for th ---PAGE BREAK--- Version: 8/30/13 - 9 - ARTICLE 3 308 OBLIGATIONS OF THE AUTHORITY 309 3.1 Facility Designation 310 The Authority shall direct all Solid Waste Collected by Franchise Agencies’ Franchised Collector to be 311 delivered to the Approved Transfer Station and Disposed of at Keller Canyon Landfill (Landfill) (except as 312 necessitated by Section 4.12.1). 313 The Authority shall direct all Traditional and Specialty Recyclable Materials Collected by Franchise 314 Agencies’ Franchised Collector to be delivered to and Processed at the Approved Recycling Materials 315 Processing Facility. 316 The Authority shall direct all Dry Material which is Collected separately from other Solid Waste by the 317 Franchise Agencies’ Franchised Collector to be delivered to and Processed at the Approved Dry 318 Materials Processing Facility. 319 The Authority shall direct all Organic Materials Collected by Franchise Agencies’ Franchised Collector to 320 be delivered to and Processed at the Approved Organic Materials Processing Facility. 321 The Authority shall direct all Construction and Demolition (C&D) Materials Collected by Franchise 322 Agencies’ Franchised Collector to be delivered to and Processed at the Approved Construction and 323 Demolition Materials Processing Facility. 324 3.2 No Tonnage Obligation or Limit on Waste Prevention 325 Neither the Authority nor the Franchise Agencies are obligated to deliver any minimum specified 326 quantity of Solid Waste, Recyclable Materials, or Organic Materials to the Landfill or Approved 327 Processing Facilities, but the Authority is obligated to deliver any and all such franchised Solid Waste, 328 Recyclable Materials, Dry Materials, C&D Materials and Organic Materials to the Landfill or Approved 329 Processing Facilities. The Authority currently operates programs intended to reduce the amount of Solid 330 Waste for Landfill Disposal as well as to reduce the total amount of materials generated by the 331 community. Nothing in this Agreement shall prevent, penalize, or impede, in any manner, the Authority 332 in cooperation with the Contractor, when necessary, from continuing and expanding these programs or 333 developing new programs having the goal of reducing the amount of material generated within the 334 Authority service area and managed under this Agreement. The Contractor shall have the right of first 335 refusal for such activities. This right of first refusal shall not apply to studies, education, outreach, 336 advertising, or other activities that do not involve the Processing, Transportation, Disposal, handling, or 337 other disposition of materials covered by this Agreement. 338 339 ---PAGE BREAK--- Version: 8/30/13 - 10 - ARTICLE 4 374 OBLIGATIONS OF CONTRACTOR 375 4.1 Scope of Services 376 4.1.1 Solid Waste Transfer and Transport 377 The Contractor shall receive the Solid Waste Collected under the Franchise Agency Collection Franchise 378 Agreements and directed to the Approved Transfer Facility by the Authority. Contractor shall load Solid 379 Waste into Transfer trailers in a manner that reasonably minimizes the volume of traffic between the 380 Approved Transfer Facility and Landfill or Approved Processing Facility. Contractor shall safely and 381 lawfully Transport all Solid Waste from the Approved Transfer Station to the Landfill or Approved 382 Processing Facility. 383 4.1.2. Solid Waste Disposal 384 Contractor shall receive, accept, and safely and lawfully Dispose of at the Landfill, the Authority-directed 385 Solid Waste delivered from the Approved Transfer Station in a manner that meets or exceeds all 386 requirements of Applicable Law including, but not limited to, the Resource Conservation and Recovery 387 Act (RCRA). 388 4.1.3. Recyclable Materials Processing 389 Contractor shall Process the Traditional Recyclable Materials Collected under the Collection Franchise 390 Agreements for all Franchise Agencies. The Approved Recycling Materials Processing Facility shall 391 separate the commingled Traditional Recyclable Materials into marketable commodity types, prepare 392 those commodities for market, and market those commodities for sale. Under no circumstances may 393 Contractor Dispose of any material Collected as Traditional Recyclable Material without first Processing 394 such material in a manner that maximizes the Recovery of marketable commodities and obtaining 395 written approval from the Authority, if required under Section 4.4. 396 4.1.4. Dry Material Processing 397 Contractor shall receive the Dry Material Collected under the Collection Franchise Agreements at the 398 Approved Transfer Facility and shall Transfer and Transport that Dry Material to the Approved Dry 399 Materials Processing Facility. Upon receipt at the Approved Dry Materials Processing Facility, Contractor 400 shall Process Dry Materials in a manner that Recovers no less than 50% of the Recyclable Material and 401 Organic Material constituents including use of fines generated in this processing as ADC. Contractor 402 shall sort the Recovered materials into marketable commodity types, prepare those commodities for 403 market, and market those commodities for sale. Contractor may meet and confer with the Authority 404 should moisture content of Recyclable Materials become a problem, however, the Parties acknowledge 405 that Contractor, as the Franchise Collector, has full control over the material that is included in this 406 program. Contractor shall engage the services of Cascadia Consulting Group as a subcontractor to 407 Comment consistency written app ---PAGE BREAK--- Version: 8/30/13 - 11 - perform the services described in Tasks 1 through 3 of Exhibit 4.1.4 of this Agreement and the scope of 408 Cascadia’s work shall include characterization of no less than ten (10) routes. 409 4.1.5. Organic Materials and Organics Processing 410 Contractor shall receive, accept, and safely and lawfully Process the Organic Materials collected under 411 the Franchise Agencies’ Collection Franchise Agreements at the Approved Organic Materials Processing 412 Facility. This Processing shall include, at a minimum, removing obvious contaminants, pre-processing 413 chip and grind), and Composting the Organic Materials. Organic Materials shall be converted to 414 products for beneficial use including Compost and mulch. 415 Contractor shall provide Franchise Agencies with finished Compost and mulch products upon request at 416 no additional charge to the Franchise Agency at the Contractor’s Composting facility. Franchise Agency 417 will provide transportation to and from Contractor’s facility. This shall be limited annually to one percent 418 of the annual Organic Materials Tonnage Collected from that Franchise Agency and delivered to the 419 Approved Organic Materials Processing Facility. 420 Except as provided below for the closed West Contra Costa Sanitary Landfill under no 421 circumstances may Contractor use unprocessed Organic Materials covered by this Agreement for 422 Alternative Daily Cover (ADC), intermediate cover, slope stabilization, erosion control, or any other 423 purpose at an active landfill. Such uses may be permitted at the closed/inactive to the extent 424 that such use prevents the importation of material to the site for that purpose. 425 4.1.6. Mixed Construction and Demolition Materials Processing 426 Contractor, in its capacity as the Franchised Collector for each of the Franchise Agencies, receives 427 customer calls for roll-off Services. The Authority will work with Franchise Agencies periodically during 428 the term of the Agreement to provide educational materials and outreach to construction contractors to 429 inform them about the availability of the Franchise Collector’s C&D recycling program. Contractor shall 430 train all customer service representatives to identify C&D boxes when work orders are placed for service 431 and to clearly identify the work order as a C&D service. All loads identified and/or placed as orders for 432 service shall be delivered by Contractor, in its capacity as the Franchised Collector, to the Approved 433 Construction and Demolition Processing Facility. 434 Contractor shall receive from any Franchise Agency’s Franchised Collector and pre-Process all identified 435 C&D loads to remove contaminants and large dimensional/non-sizeable material very large 436 diameter tree trunks) or wet material saturated sheet rock). Contractor shall then Process the 437 remainder of each load, using its mixed C&D sorting line or other processes in a manner that maximizes 438 the Diversion of material from the Landfill. The sorting line shall be equipped and staffed with sorters in 439 a manner adequate to consistently achieve a seventy percent (70%) Diversion rate for the material from 440 the Authority service area that is processed by this sorting line. Materials targeted for Diversion shall 441 include, but are not necessarily limited to: porcelain, cardboard, green waste, untreated wood, ferrous 442 and non-ferrous metals, concrete, brick, plastics, aggregate, wallboard, sheetrock, plaster, lath, asphalt, 443 base rock, dirt/soil, shingles, and carpet/pad. The Parties acknowledge that a significant portion of the 444 Diversion from this program is achieved by utilizing fines or unders from this process as ADC or other 445 ---PAGE BREAK--- Version: 8/30/13 - 12 - beneficial use at a Solid Waste Disposal site. In the event of a Change in Law eliminating or significantly 446 reducing Diversion credit associated with Dry Material Processing or Mixed C&D Processing , the Parties 447 shall meet and confer regarding appropriate modifications to the Diversion rate target defined herein. 448 4.1.7 Household Hazardous Waste Receiving, Processing and Disposal 449 Contractor shall contract with a vendor acceptable to the Authority for the operation of a permanent 450 Household Hazardous Waste (HHW) drop-off facility (located at 101 Pittsburg Avenue, North Richmond) 451 that shall serve the Franchise Agencies including unincorporated communities within and adjacent to 452 the Authority’s service area, subject to the Household Hazardous Waste Program Agreement between 453 the Authority, Contractor, and the County. The types of materials accepted as well as the days and hours 454 of operation shall be determined and may be subject to change at any time by the Authority Board of 455 Directors with input from the Contractor, subject to reasonable implementation lead time. Initially, the 456 days and hours of operation shall be from 9:00 a.m. to 4:00 p.m. Thursday, Friday, and the first Saturday 457 of each month. The Contractor shall also provide a mobile collection service for residents at least 60 458 years old and for persons with disabilities. Nothing in this Agreement should be inferred as conferring 459 third party beneficiary rights to such vendor and the Contractor shall have the right to replace such 460 vendor at any time for convenience, subject to Authority approval of the replacement vendor. 461 In order to comply with the Authority’s and County’s Household Hazardous Waste Elements (HHWE), 462 the Authority, Contractor and County (if the County is not a voting member of the Authority) will agree 463 on the types of materials accepted as well as the days and hours of operation the permanent Household 464 Hazardous Waste (HHW) drop-off facility services provided under this agreement. 465 4.1.8 Recycling Coordinators 466 No later than November 1, 2013, and subject to the approval and execution of amendments to the 467 Collection Franchises, the Contractor shall hire two additional full time Recycling Coordinators who 468 shall be Contractor employees dedicated to work exclusively within the Authority service area. 469 During the process of recruiting and hiring for the individuals that shall fill these positions, the 470 Contractor shall accept input from the Authority and Franchise Agencies regarding desirable 471 qualifications of the selected candidates. At a minimum, the selected candidates: 1) should have at least 472 two years of experience in a similar capacity, ideally as a recycling coordinator whose responsibilities 473 included interacting with the public (including, but not limited to, residents, businesses, and community 474 groups) and public agencies; 2) should be experienced in the management and update of websites and 475 the use of social media for educational and marketing purposes; 3) at least one of the selected 476 candidates must be fluent in the predominant secondary language of the service area (such as Spanish); 477 and, 4) at least one of the coordinators should have a communications, business/economic 478 development, or professional outreach background. 479 In the event that either: , the Contractor fails to hire the two Recycling Coordinators by November 1, 480 2013; or, in the event that such a position is ever vacant, during the Term of the Agreement, for 481 more than three months after the employment relationship between the Contractor and the 482 employee is terminated, regardless of the reason, the Authority may, at its sole discretion, engage a 483 ---PAGE BREAK--- Version: 8/30/13 - 13 - third party to perform the functions of the Recycling Coordinator until such time as the Contractor hires 484 the required personnel. The cost of such consultant shall be paid by the Contractor. The reimbursement 485 of such costs by the Contractor shall be limited to eight thousand three hundred and thirty three dollars 486 ($8,333) per month (equivalent to one hundred thousand dollars ($100,000) per year) per coordinator 487 that has to be replaced by the third party. The and annual reimbursement rates described in 488 this Section 4.1.8 will increase annually by the same percentage as the Material Specific portion of the 489 Rate as defined in Section 5.3.2. 490 The general scope of the Recycling Coordinators’ duties includes those items identified and described in 491 Exhibit 4.1.9 (Public Education and Outreach). The specific educational and outreach priorities and 492 campaigns to be performed by the Recycling Coordinators shall be defined cooperatively between the 493 Contractor, the Recycling Coordinators, and the Authority with input from Franchise Agencies. These 494 priorities and campaigns shall be documented by the Recycling Coordinator in an annual education and 495 outreach plan (Annual Plan), including identifiable and measurable goals, to be presented to the 496 Authority. The Authority and Franchise Agency staff shall be invited to provide comments on the Annual 497 Plan. The Authority shall be responsible for reconciling any conflicting comments and making a formal 498 request for changes to the Annual Plan. The Recycling Coordinators shall make quarterly status 499 presentations collectively to the Authority and Franchise Agencies, documenting their progress against 500 the plan and goals and recommending modifications to the plan, as appropriate. 501 The Parties shall agree on an annual process for reviewing the performance of the Recycling 502 Coordinators, documenting performance problems associated with this Service, and resolving those 503 problems (including some ultimate provision for reassigning and replacing the staff person). In addition, 504 the Parties shall agree on the approach to dealing with serial or excessive vacancies in these positions, 505 including the possibility of contracting jointly with a third party specializing in performing these Services 506 or transferring the funding for the positions to the Authority. 507 4.1.9 Public Education 508 Beginning November 2013, the Contractor shall begin to provide the public education and outreach 509 Services described in Exhibit 4.1.9, Public Education and Outreach. Contractor understands the 510 significance and importance of public education and outreach activities in achieving the Authority’s goal 511 of 75% recycling by 2020. Contractor further understands the diverse demographic and socio-economic 512 profile of the Authority’s service area. Contractor shall conduct all public education and outreach 513 activities in a manner that provides for education and outreach in the predominant secondary language 514 in the Authority’s service area. Contractor further understands the potential for an error in translation 515 that may make education ineffective, offensive, or otherwise alienate certain cultural groups. As such, 516 Contractor shall ensure such alternate language education is both linguistically and culturally 517 appropriate to the community. The Authority shall review and approve all such public education 518 materials prior to distribution.. 519 4.1.10 Cooperation with RFP and Transition to Next Contractor 520 If applicable, before expiration or earlier termination of this Agreement, Contractor will take direction 521 from the Authority Contract Manager and/or subsequent contractor to assist in an orderly transition of 522 ---PAGE BREAK--- Version: 8/30/13 - 14 - services from Contractor to Authority or subsequent contractor. In response to the Authority Contract 523 Manager’s direction including to gather data necessary for the preparation of an RFP for replacement 524 services at the expiration or earlier termination of this Agreement, Contractor shall provide information 525 and data consistent with the requirements of Section 8.14 of this Agreement. 526 4.1.11 Limitations to Scope 527 The scope of this Agreement does not include Solid Waste, Organic Materials, Recyclable Materials, 528 C&D, and/or other materials generated in the Authority area that are not Collected by the Franchise 529 Agencies’ Franchised Collectors. 530 4.2 Permits 531 4.2.1 Securing Permits 532 Contractor shall obtain and maintain, at Contractor’s sole cost, all Permits required under Applicable 533 Law to perform Services and shall provide Services in compliance with such Permits. For the Landfill and 534 the Approved Processing Facilities owned by Contractor or an Affiliate, Contractor shall provide 535 Authority copies of Permits for all of the Approved Processing Facilities and shall demonstrate 536 compliance with the terms and conditions of Permits within ten (10) Calendar Days of request of 537 Authority. In its Quarterly Report or more frequently, as necessary, Contractor shall inform Authority of 538 Contractor’s status of securing the issuance, revision, modification, extension or renewal of Permits that 539 are necessary to affect compliance with the terms of this Agreement. Within ten (10) Calendar Days 540 following Authority’s request, Contractor shall provide the Authority with copies of any applications or 541 other correspondence that the Contractor submits in connection with securing Permits. 542 4.2.2 Complying with Permits 543 Contractor shall comply with all Permits, including any mitigation measures related to the operation and 544 maintenance of all of the Approved Processing Facilities at no additional cost to the Authority for 545 current permit and fee structure at the time of the execution date of the Agreement. Contractor is 546 solely responsible for paying any fines or penalties imposed for noncompliance with or Violation of 547 Permits or failure to obtain Permits. 548 4.2.3 Hazardous Material Programs 549 All of the Approved Facilities and the Landfill shall maintain a Hazardous Waste screening, identification, 550 and prevention protocol consistent with the Solid Waste Facility Permits for each. The Contractor shall 551 not knowingly deliver or Process Hazardous Waste to or at any of the Approved Facilities or Landfill, 552 with the exception of the Household Hazardous Waste Facility co-located with the Approved Recycling 553 Materials Processing Facility at 101 Pittsburg Avenue in North Richmond. 554 ---PAGE BREAK--- Version: 8/30/13 - 15 - 4.3 Facility Specifications 555 4.3.1 Landfill Disposal 556 Contractor shall provide Disposal Services at the Landfill in accordance with the Service standards 557 described in Section 4.19 and the following Service specifications: 558 Operating, managing and maintaining the Solid Waste fill areas, including the placement, 559 burying, and compaction of Solid Waste in the refuse fill areas; stockpiling, placement and compaction 560 of daily cover, intermediate cover, and final cover; management of fill operations with regard to fill 561 sequencing, side slopes configuration, and working face location and configuration; 562 Providing, operating and maintaining all equipment, rolling stock, and supplies necessary for 563 operations, Closure, Post-Closure, and environmental monitoring; 564 Operating, maintaining, and managing leachate and landfill gas management systems, 565 groundwater monitoring and management systems, storm water drainage and control systems, 566 treatment facilities, buildings, on-site roadways, utilities, and any other required facility elements. 567 Accepting delivery of Solid Waste from the Approved Transfer Station, subject to the limitations 568 of Section 4.5; 569 Operating and maintaining the scale house and scale system and weighing Solid Waste delivered 570 from the Approved Transfer Station in accordance with Section 4.9; 571 Directing on-site traffic to appropriate unloading areas in accordance with Section 4.8 and 572 providing a safe working environment for Landfill users, visitors, and employees including Sections 573 4.10 and 4.11; and, 574 Safely managing the Solid Waste accepted at the Landfill, including, but not limited to, meeting 575 requirements of Section 4.11 576 4.3.2 Approved Processing Facilities 577 Contractor shall provide Processing services at the Approved Processing Facilities in accordance with the 578 Service standards described in Section 4.19 and the following Service specifications: 579 Operating, managing, and maintaining the Processing areas; 580 Providing, operating and maintaining all equipment, rolling stock, and supplies necessary for 581 operations and environmental monitoring; 582 Operating, maintaining, and managing storm water drainage and control systems, treatment 583 facilities, buildings, on-site utilities, and any other required facility elements. 584 ---PAGE BREAK--- Version: 8/30/13 - 16 - Accepting delivery of Recoverable materials Collected under the Collection Franchise 620 Agreements, subject to the limitations of Section 4.5; 621 Operating and maintaining the scale house and scale system and weighing all material delivered 622 under this Agreement in accordance with Section 4.9; 623 Directing on-site traffic to appropriate unloading areas in accordance with Section 4.8 and 624 providing a safe working environment for facility users, visitors, and employees including Sections 4.10 625 and 4.11; 626 Safely managing the materials accepted at the Approved Recyclable Materials Processing 627 Facility, including, but not limited to, meeting requirements of Section 4.11. 628 4.4 Ownership of Authority Materials 629 Once Solid Waste, Organic Materials, C&D Material, Dry Material, HHW, or Recyclable Material directed 630 by the Authority is received and accepted by Contractor ownership and the right to possession of said 631 materials shall Transfer directly from the Person delivering said materials to Contractor. Contractor may 632 retain, Recycle, Process, Dispose of and otherwise use such Solid Waste, Organic Materials, C&D, Dry 633 Materials, HHW, and Recyclable Materials in any lawful fashion or for any lawful purpose, except that 634 Contractor may not Dispose of otherwise marketable Recyclable Materials or Organic Materials without 635 the prior written approval of the Authority and Processing said materials as required under Section 636 4.1.3. This excludes process Overs and process Residue. 637 Both benefits and Liabilities resulting from ownership and possession of Authority-directed materials 638 shall accrue to Contractor with the exception that the annual City/County payments associated with 639 California curbside redemption value (CRV) made by the California Department of Resources Recycling 640 and Recovery (CalRecycle) shall accrue to the Franchise Agencies. The benefits and liabilities accruing to 641 contractor shall include all scrap values, all California Redemption Value (CRV) payments (excepting 642 City/County payments as described above), all Curbside Supplemental payments, all quality incentive 643 payments, all Administrative fees, all Processing payments, and all program distributions of unspent 644 program funds. 645 4.5 Rejection of Unpermitted Waste at Landfill 646 4.5.1 Inspection 647 Contractor shall use Standard Industry Practices to detect and reject Unpermitted Waste in a uniform 648 manner and shall not knowingly accept Unpermitted Waste at the Approved Processing Facilities or 649 Landfill. Contractor shall comply with the inspection procedure contained in its Permit requirements. 650 Contractor shall modify that procedure to reflect any changes in Permits or Applicable Law. 651 4.5.2 Unpermitted Wastes Handling and Costs 652 Contractor shall arrange for or provide handling, Transportation, and delivery of all Unpermitted Wastes 653 detected at the Approved Processing Facilities or Landfill to a Recycling facility or Landfill permitted in 654 Comment Comment 4.1.3 ---PAGE BREAK--- Version: 8/30/13 - 17 - accordance with Applicable Law. Contractor is solely responsible for making such arrangements or 655 provisions and for all associated costs thereof, subject to the remedies available under Section 4.5.3 656 below. 657 4.5.3 Remedies for Rejected Materials 658 If Unpermitted Waste is delivered to the Landfill, Contractor shall be entitled to pursue whatever 659 remedies, if any, it may have against Person(s) bringing that Unpermitted Waste to the Landfill. In no 660 event shall the Authority or Franchise Agencies be required to bear the cost of the proper handling or 661 remediation of Unpermitted Wastes which are delivered to the Landfill. 662 4.6 Approved Facility and HHW Facility Days and Hours of Operation 663 4.6.1 Facilities Hours of Operation 664 Contractor will coordinate the hours of operation of the Approved Facilities to receive Solid Waste, 665 Organic Material, C&D Material, and Recyclable Material from the Franchised Hauler from the Authority 666 service area. 667 4.6.2 Approved HHW Facility Hours of Operation 668 The Approved HHW Facility hours of operation are determined by mutual consent by the Authority’s 669 Board of Directors and the Contractor and may be modified, by mutual consent, at any time during this 670 Agreement, following sixty (60) days advanced notification and adjustment of Rates to reflect the cost of 671 increased days and hours of service. The initial hours of operation for the Approved HHW Facility are 672 9:00 a.m. through 4:00 p.m. every Thursday and Friday and the first Saturday of every month. The 673 Authority Board of Directors has the right to reduce the future hours of HHW operations for cost control 674 measures. The Contractor will not unreasonably withhold consent for such cost control measures. 675 4.7 Equipment and Supplies 676 Contractor shall provide all rolling stock, stationary equipment, material storage containers, spare parts, 677 maintenance supplies, and other consumables as appropriate and necessary to operate the Approved 678 Processing Facilities and Landfill. Contractor shall place the equipment in the charge of competent 679 operators. Contractor shall repair and maintain all equipment at its own cost and expense. 680 4.8 Traffic Control and Direction 681 Contractor shall construct and maintain all paved areas on Contractor’s property that are required to 682 Transport Authority’s Solid Waste, Recyclable Materials, and Organic Materials from the scale house at 683 each of the Approved Processing Facilities to the point of unloading at the each of the Approved 684 Processing Facilities. Contractor shall direct on-site traffic to appropriate unloading areas and provide a 685 safe working environment for all of the Approved Processing Facilities and Landfill users, visitors, and 686 employees. Contractor shall provide necessary signs and personnel to assist drivers to proper unloading 687 areas. Contractor shall maintain all signs at all of the Approved Processing Facilities and Landfill in a 688 ---PAGE BREAK--- Version: 8/30/13 - 18 - clean and readable condition. The Contractor shall provide and maintain signs for the convenience of 689 vehicles using the Approved Processing Facilities and Landfill to facilitate safe and efficient traffic flow. 690 4.9 Scale Operation 691 4.9.1 Maintenance and Operation 692 Contractor shall maintain at least two State-certified motor vehicle scales at the Landfill and at least 693 one State-certified motor vehicle scale at each of the Approved Processing Facilities in accordance 694 with Applicable Law. Contractor shall provide documentary evidence of such certification within ten 695 (10) Calendar Days of Authority’s request. Contractor shall link all scales at each Approved Processing 696 Facility and Landfill to a centralized computer recording and billing system and account for tracking all 697 incoming material by jurisdictions of origin and outgoing materials by destination. Contractor shall 698 operate those scales during the Approved Processing Facility receiving hours established in Section 4.6. 699 Contractor shall provide the Authority with system generated original reports that does not contain 700 proprietary confidential information. 701 4.9.2 Vehicle Tare Weights 702 Contractor shall weigh the vehicle and determine its unloaded (“tare”) weight(s). Contractor 703 shall record tare weight, hauler name, vehicle type (e.g. front-loader, transfer truck/trailer, side-loader, 704 etc.) and vehicle identification number for each and every vehicle with a stored tare weight in 705 Contractor’s computer system. Within ten (10) Working Days of weighing, Contractor shall provide the 706 Authority with a report listing vehicle tare weight information. Contractor shall have the right to 707 request re-determination of tare weights of vehicles twice each Calendar Year. If there is reasonable 708 suspicion or evidence that tare weights are not accurate, Authority may, at any time and without 709 limitation, request re-determination of tare weights, in which case Contractor shall re- 710 determine tare weights for requested vehicles. Contractor may update tare weights, at its own initiative 711 or at the request of the Authority, more frequently. This provision shall apply to all vehicles used to 712 deliver materials to each of the Approved Processing Facilities and Landfill. 713 4.9.3 Substitute Scales 714 If any facility scale is inoperable, being tested, or otherwise unavailable, Contractor shall use Reasonable 715 Business Efforts to weigh vehicles on the remaining operating scale. To the extent that all the scales are 716 inoperable, being tested, or otherwise unavailable, Contractor shall substitute portable scales until the 717 permanent scales are replaced or repaired. Contractor shall arrange for any inoperable scale to be 718 repaired as soon as possible and, in any event, within five Working Days of the failure of the 719 permanent scale. If repairs to the permanent scale are projected to take more than twelve (12) hours, 720 Contractor shall immediately obtain a temporary substitute scales(s). 721 4.9.4 Estimates 722 Pending substitution of portable scales or during power outages at any Approved Processing Facility or 723 the Landfill, Contractor shall estimate the Tonnage of the material delivered to the Approved Processing 724 ---PAGE BREAK--- Version: 8/30/13 - 19 - Facility by utilizing the arithmetic average of each vehicle's recorded Tons of the subject material 725 delivered on its preceding three deliveries, on the same day of the week, to the respective facility. 726 All information required by Section 4.9.7 shall continue to be recorded for each delivery to the Landfill 727 or the Approved Processing Facilities during any period the scales are out of service. 728 4.9.5 Testing 729 Contractor shall test and calibrate all scales in accordance with Applicable Law, but at least every twelve 730 (12) months or upon Authority request. 731 4.9.6 Weighing Standards and Procedures 732 Contractor shall weigh and record inbound weights of all vehicles delivering materials to the Approved 733 Processing Facilities and Landfill when the vehicles arrive and weigh and record outbound weights of 734 vehicles for which Contractor does not maintain tare weight information. Contractor shall provide each 735 driver a receipt showing the date, time, origin, quantity (i.e. tons or yards), and material type that the 736 vehicle delivered to the Approved Processing Facility or Landfill. 737 4.9.7 Scale Records 738 Contractor shall maintain scale Records and reports that provide information including date of receipt, 739 inbound time, inbound and outbound weights of vehicles, vehicle identification number, jurisdiction of 740 origin of materials received, type of material, hauler identification and/or classification, type, weight, 741 and destination of material. Contractor acknowledges that the weights recorded in its scale system(s) 742 form the basis for Contractor’s compensation under this Agreement and therefore shall be subject to 743 full disclosure to the Authority at all reasonable times. 744 4.10 Personnel 745 Contractor shall engage and train qualified and competent employees, including managerial, 746 supervisory, clerical, maintenance, and operating personnel, in numbers necessary and sufficient for 747 operation of the Approved Processing Facilities and Landfill and to perform the Services required by this 748 Agreement. 749 4.11 Safety 750 The Contractor shall conduct the operations of all of the Approved Processing Facilities and Landfill in a 751 safe manner, in accordance with Applicable Law and insurance requirements provided in Article 6. 752 4.12 Alternative Facilities 753 If Contractor does not receive the materials at the Approved Processing Facilities or Landfill for reasons 754 other than Uncontrollable Circumstances then, following Authority approval given in the Authority’s sole 755 discretion, Contractor shall: accept the Authority’s materials at another similarly-capable processing 756 facility or landfill owned by it or an Affiliate; or, (ii) arrange for the Authority’s material to be Processed 757 ---PAGE BREAK--- Version: 8/30/13 - 20 - or Disposed of at another similarly-capable processing facility or landfill not Owned by it or an Affiliate. 758 In either case, Contractor shall provide service through these alternate facilities at no additional cost. If 759 the Authority does not approve Contractor’s first choice of an alternate processing facility or landfill, 760 Contractor shall have ten (10) Working Days to arrange for different alternate facilities. If Authority 761 rejects such alternate facilities based on reasonable public policy, environmental, or business concerns, 762 and Contractor proceeds to deliver such materials to the alternate facility(ies), then the Authority may 763 terminate this Agreement in accordance with Section 7.2. 764 If Contractor does not receive the materials at the Approved Processing Facilities or Landfill due to 765 Uncontrollable Circumstances, Contractor shall, to the extent it is legally able to do so in accordance 766 with Applicable Law, accept materials at another similarly-capable processing facility or landfill owned 767 by it or an Affiliate at no additional cost. If Contractor is unable to provide service through alternative 768 facilities owned by it or an Affiliate as a result of Uncontrollable Circumstances and such condition 769 persists for a period of five or more Working Days, the Authority may, at its sole discretion, terminate 770 this Agreement in accordance with Section 7.2. 771 4.13 Invoicing 772 For all Franchised Collectors except Richmond Sanitary Service (Richmond Sanitary Service is expressly 773 exempt from this provision) on or before the tenth Working Day of each month, Contractor shall invoice 774 or otherwise charge the Franchise Agencies’ Franchised Collectors in amounts equal to the Rate 775 multiplied by Tons of the Authority’s Solid Waste, Organic Materials, C&D Materials, Dry Materials and 776 Recyclable Materials delivered by Franchised Collectors to the Landfill and Approved Processing 777 Facilities during the previous month. Copies of such invoices shall be provided to the Authority at the 778 same time as they are provided to the Franchised Collector. Invoices shall be in a form satisfactory to 779 the Authority and shall, at a minimum, separately list by material type the associated Tonnage, applied 780 Rate, and number of loads received. The Authority shall have no obligation for payment of such invoices 781 as the Franchised Collectors are authorized to collect from Customers the compensation provided for 782 herein. 783 4.14 Quarterly and Annual Reports 784 Records shall be maintained in forms and by methods that facilitate flexible use of data contained in 785 them to structure reports, as needed. Initially such format shall be Microsoft Excel compatible and in the 786 form provided in Exhibit 4.14. This format may be changed upon the request of the Authority Contract 787 Manager in consultation with Contractor. Reports are intended to compile recorded data into useful 788 forms of information that can be used to, among other things: 789 • Determine and set rates and evaluate the financial efficacy of operations; 790 • Evaluate past and expected progress towards achieving goals and objectives; 791 • Determine needs for adjustment to programs; and, 792 • Evaluate services. 793 Quarterly reports shall be submitted within thirty five (35) calendar days after the end of the report 794 quarter. The Contractor shall also submit an annual report containing a summary of all the details 795 ---PAGE BREAK--- Version: 8/30/13 - 21 - described below for the entire Calendar Year. Annual reports shall be submitted before March 31 796 following the reporting year. All reports shall be submitted to and in a format acceptable to the 797 Authority Contract Manager via email with hardcopy provided upon request. 798 4.14.1 Quarterly Reports 799 Contractor shall include in the Quarterly Report, at a minimum, the number of loads and tons, by 800 material type and by month, handled under this Agreement. Reports shall be organized to separately 801 report material received from each jurisdiction, between Customer (e.g. Residential, Commercial, or 802 Industrial) or Collection side-loader, front-loader, roll-off) types, material types, and facilities. 803 Recycling Tonnage reports shall characterize the material Processed and marketed; using facility-wide 804 averages where impractical to separately characterize material from the Authority service area, and 805 document the residue rates. Supporting documentation shall be provided using unaltered, system- 806 generated formats, upon request by the Authority Contract Manager. 807 Quarterly reports shall present information on a basis, by Franchise Agency and by sector (i.e. 808 residential, multi-family, commercial, roll-off) and, at a minimum, include: 809 1. The number of loads and tons, by line of business (as identified in Sections 4.1.1 through 4.1.7), 810 handled under this Agreement. This information shall be presented on both an inbound (i.e. 811 collection vehicles) and outbound (i.e. transfer vehicles, commodities shipped, etc.) basis. 812 2. Number of new Customers, by service type and service level. 813 3. Transfer Station diversion report by commodity. 814 4. Landfill diversion report by commodity. 815 5. Processing Facility report regarding Composted or Processed product by commodity. 816 6. Special clean-up event tonnage Collected, Disposed and Recycled. 817 7. E-Waste and Bulky Items including number of collection events and units or tonnage by material 818 type. 819 4.14.2 Annual Report 820 The Annual Report shall include: 821 1. Service Level and Allocation Report. Contractor shall provide the number of Customers 822 subscribing to each collection service level authorized in the Franchise Agency Collection 823 Franchises on the last day of each month of the report year. Contractor shall provide the basis 824 for allocating tonnage in vehicles that serve multiple Franchise Agencies. The truck tonnage 825 allocation shall include a list of vehicles, their assigned routes, and a description of how tonnage 826 is allocated to each Franchise Agency. 827 2. Gross billings of the Rate authorized under this Agreement, reported by sector. 828 ---PAGE BREAK--- Version: 8/30/13 - 22 - 3. Status report on applications for renewals of existing permits or any new permits which may be 829 required to continue operations at the Transfer Station, MRF, Processing Facility, or Disposal Site 830 within existing permitted areas. 831 4. Listing of all trucks that have received a revised stored tare weight at any Approved Facility or 832 Landfill during the preceding quarter. The listing shall including the date the revised tare weight 833 was established, truck number, license plate number, prior stored tare weight, revised stored 834 tare weight, and a brief explanation of any significant variance. 835 4.15 Change in Applicable Law Affecting Rates 836 Contractor acknowledges that waste management is fundamental to the protection of the public health, 837 safety, and the well-being of those within the Authority’s service area. Contractor agrees that it shall 838 exercise due diligence in performing the Services described herein. 839 In the event of a Change in Law or a new judicial interpretation of Applicable Law, including, but not 840 limited to, Articles XIII C and D of the California Constitution by which a court of competent jurisdiction 841 sets aside, invalidate, or stays any portion of the Rates approved by Authority in accordance with this 842 Agreement, the parties desire to establish a process by which services may be provided under 843 alternative or revised rate structures, as follows. Contractor agrees to meet and confer with Authority to 844 discuss the impact of such Change in Law on either Party’s ability to perform under this Agreement. 845 Contractor agrees to continue to perform the Services on an interim basis as otherwise set forth herein, 846 and Authority and/or Contractor may take such other and/or urgency actions necessary to facilitate 847 Contractor’s continuation of Services, while the Parties meet and confer to discuss the impact of such 848 change. In no event shall the interim period during which Contractor agrees to continue to perform the 849 Services last longer than ninety (90) days. 850 Nothing herein is intended to imply that California Constitution Articles XIII(C) or apply to the Rates 851 established for Services provided under this Agreement. The foregoing paragraphs are merely intended 852 as a contractual allocation of risks between the Parties. 853 This Section shall survive the expiration or earlier termination of this Agreement and shall not be 854 construed as a waiver of rights by Authority to contribution or indemnity from third parties. 855 This provision is intended to be consistent with and limited by California Public Resources Code Section 856 40059.2. 857 4.16 Closure and Post-Closure of Landfill 858 Contractor shall safely operate, maintain, and manage (including fulfillment of State funding 859 requirements) the Landfill in compliance with Applicable Law not only during the Term but also 860 thereafter until and during the Landfill Closure and Post-Closure period(s). Contractor is solely 861 responsible, operationally and financially, for: The appropriate Closure and Post-Closure activities of 862 the Landfill; and, (ii) The establishment and funding of any reserve funds required by Applicable Law for 863 the purposes of providing funds for the payment of costs of Closure of the Landfill (or any cell within the 864 Landfill) or Post-Closure activities relating to the Landfill. 865 ---PAGE BREAK--- Version: 8/30/13 - 23 - Contractor shall not hold the Authority or Franchise Agencies responsible for paying any deficiencies in 866 required reserves. In addition, Contractor shall not hold the Authority or Franchise Agencies responsible 867 for making any payments if actual Closure and Post-Closure costs relating to the Landfill exceed the 868 amounts reserved by the Contractor for that purpose. This obligation survives expiration or termination 869 of this Agreement. 870 4.17 Right to Enter Facility and Observe Operations 871 The Authority Contract Manager may enter, observe, and inspect any of the Approved Processing 872 Facilities and/or Landfill during operations; may request to conduct studies or surveys of the Approved 873 Processing Facilities and/or Landfill; meet with the Approved Processing Facility and/or Landfill 874 manager(s) or his or her representatives at any reasonable time, provided that the Authority Contract 875 Manager and its representatives comply with Contractor’s reasonable safety and security rules and do 876 not interfere with the work of the Contractor. 877 If the Contractor representative or facility manager is not at the Approved Processing Facility or Landfill 878 when the Authority Contract Manager visits without prior announcement, Contractor shall arrange for 879 the Authority Contract Manager to return for a visit of the complete facility within forty-eight (48) hours 880 of the original visit. 881 Upon Authority Contract Manager’s request, Contractor shall make personnel available to accompany 882 Authority Contract Manager on inspections. Contractor shall ensure that its employees cooperate with 883 the Authority and respond to the Authority’s reasonable inquiries. Contractor shall facilitate similar 884 observation and inspection at Approved Processing Facilities owned by it or an Affiliate upon Authority 885 request and within ten (10) Working Days of receiving such request. 886 4.18 Provision of Emergency Services 887 Subject to Permit restrictions, Contractor shall provide emergency services, as set forth in this Section, 888 at the Authority’s request in the event of major accidents, disruptions, or natural calamities. Contractor 889 shall provide emergency services within twenty-four hours (24) of Authority oral notice followed by 890 Notice or as soon thereafter as is reasonably practical in light of the circumstances. Emergency services 891 that exceed the Contractor’s obligations under this Agreement include extending facility receiving hours 892 and increasing the types and quantities of permitted materials accepted at any of the Approved 893 Processing Facilities and Landfill, if applicable. 894 Contractor shall be paid for its direct costs, plus a net profit not to exceed fifteen percent (15%) of the 895 total payment to Contractor, in providing emergency services. Contractor may also request 896 reimbursement of any indirect costs which Contractor can demonstrate, to the satisfaction of the 897 Authority, are: i) directly required for or beneficial to the provision of emergency services; and/or, ii) 898 otherwise allowable and expected as reimbursement from an emergency management agency 899 including, but not limited to, the Federal Emergency Management Agency. The Authority shall not 900 unreasonably withhold consent to reimbursement of such indirect costs. Contractor shall document all 901 such costs in an invoice to the Authority. The Authority shall consider and conduct all necessary 902 investigations to assure the appropriateness of the costs and shall endeavor to do so in as prompt a 903 ---PAGE BREAK--- Version: 8/30/13 - 24 - fashion as is accommodated by the conditions. Contractor shall cooperate fully with Authority’s review, 904 providing any documents the Authority Contract Manager deems necessary in the review. Once 905 Authority is satisfied that all charges are reasonable and appropriate, Authority shall pay Contractor the 906 approved amount within thirty (30) days. 907 4.19 Service Standards 908 Contractor shall perform Services in accordance with Applicable Laws and regulations, Standard Industry 909 Practice, due diligence and specification, and other requirements of this Agreement. 910 4.20 Modifications to Scope of Service 911 4.20.1 General 912 Authority may request and Contractor shall perform additional services (including performance of 913 additional material Recovery activities or specific methods of material Recovery) for which it is qualified 914 and permitted. Contractor may propose to the Authority modifications to the scope of services for 915 which Contractor believes the Parties shall jointly benefit. The respective Rate for service shall be 916 increased or decreased, in accordance with this Section, to give effect to these adjustments. 917 4.20.2 Proposal for Modification of Services 918 Within ninety (90) Calendar Days of Authority request for a proposal, Contractor shall present its 919 proposal to modify existing Services. At a minimum, the proposal shall contain a complete description 920 of the following: 921 Methodology to be employed (including, but not limited to, changes to equipment, manpower, 922 and staffing); 923 Equipment to be utilized (including, but not limited to, equipment number, types, capacity, and 924 age); 925 Labor requirements (changes in number of employees by classification); 926 Provision for program publicity/education/marketing (if appropriate); 927 Estimate of the impact of the Service modification (including, but not limited to, increased 928 Diversion Tonnage, reduced costs, and increased public service); and, 929 Minimum one year projection of the financial results of the program’s operations in an 930 operating statement format including documentation of the key assumptions underlying the 931 projections and the support for those assumptions, giving full effect to the savings or costs to existing 932 Services. 933 ---PAGE BREAK--- Version: 8/30/13 - 25 - 4.20.3 Authority’s Review 934 If the Authority does not review and comment on, and approve or disapprove of the modification to the 935 scope of Services within ninety (90) Calendar Days of receiving the Contractor’s proposal, the proposal 936 shall be deemed disapproved. The Authority and Contractor may mutually agree to extend the time 937 period for review due to the complexity of the scope of Service modification under consideration, the 938 time needed for the review or approval, or for other reasonable reasons. 939 The Authority may request the assistance of an independent third party to review the proposal. The 940 Contractor shall pay the reasonable costs of that review if the modification to the scope of Services is 941 initiated by the Contractor and such review is reasonably necessary, as determined by the Authority 942 Contract Manager. The Authority shall pay those costs if the modification to the scope of Services is 943 initiated by the Authority. The cost of that review shall be estimated in advance of the work, and 944 provided to the Contractor for comment and agreement to pay. Contractor’s refusal to pay the 945 reasonable cost of review of a Contractor-initiated proposal shall be grounds for Authority rejection of 946 that proposal. 947 Contractor shall provide operating and business Records requested by the Authority that are 948 reasonably required to verify the reasonableness and accuracy of the impacts associated with a 949 modification to the scope of Services. Contractor shall fully cooperate with the Authority’s request and 950 provide Authority and its agent(s) copies of or access to Contractor’s Records. 951 4.20.4 Approval of Modification to Scope of Services 952 Upon Authority approval or determination, Authority shall issue a notice approving the modification to 953 the scope of Service and documenting any change to the Rate, and approved change to Contractor’s 954 obligations hereunder. The Parties shall prepare a written amendment to the Agreement documenting 955 any and all changes resulting from the modification to the scope of Services. No adjustment in Rates, 956 change in Contractor’s obligations, or change in scope of Services shall become effective absent that 957 Authority approval or determination. 958 4.20.5 Authority’s Remedies Pending Negotiations 959 4.21 Triennial Review of 75% Recycling Goal 960 The Authority and Contractor agree that the common goal of the Parties for this Agreement is to 961 facilitate the local achievement of the State’s seventy-five percent (75%) recycling goal by the year 2020. 962 In January of 2016 and every three years thereafter during the Term, Authority and Contractor shall 963 meet to review the current level of recycling (as measured by CalRecycle) being achieved within the 964 Authority’s service area. The Franchise Agencies’ staff and Franchise Collectors management shall also 965 be invited to the meetings. These meetings shall be called “Recycling Goal Meetings.” One week 966 prior to each Recycling Goal Meeting, each Party shall provide the other with its assessment of the 967 progress and performance towards achieving the seventy-five percent (75%) recycling goal by 2020. The 968 Parties shall meet to discuss their respective assessments and to cooperatively develop 969 ---PAGE BREAK--- Version: 8/30/13 - 26 - recommendations for improvements or modernizations of programs, services, or the methods for 1009 providing them. The objective of the Parties during these meetings shall be to identify continuous 1010 improvement opportunities and formulate recommendations for implementing them within the existing 1011 cost structure of the Agreement and Franchise Agency Collection Franchises. 1012 The Authority Contract Manager and Contractor shall jointly develop a report to the Authority Board of 1013 Directors advising the Board of Directors on the progress towards the diversion goal. In the event that 1014 the Authority Contract Manager and Contractor are not in agreement about certain findings or 1015 recommendations, each Party may submit their own, separate report specific to those issues. The 1016 Authority Board of Directors shall review the report(s) at their April meeting in each year that a 1017 Recycling Goal Meeting occurs and shall determine whether to proceed with Option A or Option B 1018 below. 1019 A. If Contractor’s existing Recycling and Processing programs are on schedule towards achieving 1020 the seventy-five percent (75%) recycling rate, or have achieved and have maintained seventy-five 1021 percent (75%) recycling rate, Contractor shall continue to operate its existing Recycling and Processing 1022 programs throughout Authority’s service area. Notwithstanding the foregoing, the parties shall still hold 1023 and attend the triennial Recycling Goal Meetings to discuss Contractor’s programs, including but not 1024 limited to the feasibility of increasing the rate of recycling within the Authority’s service area beyond 1025 seventy-five percent 1026 B. If Contractor’s existing Recycling and Processing programs are not on schedule towards 1027 achieving seventy-five percent (75%) recycling rate, then within ninety (90) days after the Authority 1028 Board of Directors meeting to consider the report, the Authority shall conduct a performance review of 1029 the Contractor to determine whether programs and Services required under this agreement, including 1030 the Enhanced Collection Services described in Exhibit 2.4.6, have been fully implemented in good faith 1031 by the Contractor. Contractor shall fully cooperate with such performance review including providing 1032 information and making management available for interviews with the Authority’s staff or agents. 1033 i. In the event that the Authority Board of Directors concludes that Contractor has failed 1034 to fully implement programs in good faith, at a minimum, the frequency of the Recycling Goal 1035 Meetings shall be annual until the plan has been fully implemented. 1036 ii. In the event that the Authority Board of Directors conclude that Contractor has fully 1037 implemented programs in good faith, the Authority may request and Contractor shall develop 1038 and propose to Authority a plan for new or modified Recycling and Processing programs that are 1039 designed to achieve the seventy-five percent (75%) recycling rate in the most reasonable, cost- 1040 effective, and expedient manner possible. The Authority shall seek concurrence from applicable 1041 Franchise Agencies where the Authority determines the potential need for requesting modified 1042 services that may involve collection service changes. The Parties will review such a plan 1043 consistent with the requirements of Section 4.20 of this Agreement. 1044 The parties agree that the 75% goal is a target and not a guaranteed recycling rate put forth by 1045 Contractor as part of this Agreement. and that tThe intent of the performance review referenced in 1046 Subsection 4.21.B shall be to determine whether Contractor has made good faith efforts to implement 1047 Comment language be with Franch determines Recycling p service cha To avoid pr post collect knowing an proposal th Comment language is boundary b and the pos Comment the bounda collection a situation be including co ---PAGE BREAK--- Version: 8/30/13 - 27 - the programs and services outlined in this Agreement and not to determine whether Contractor has 1048 achieved a recycling rate of 75%. 1049 1050 1051 ---PAGE BREAK--- Version: 8/30/13 - 28 - ARTICLE 5 1052 CONTRACTOR COMPENSATION 1053 5.1 General 1054 The Contractor shall perform and pay all costs associated with all of its obligations, responsibilities, and 1055 duties under this Agreement. In consideration of its performance of these duties, the Contractor may 1056 charge and collect the Post Collection Surcharge for the Services provided under this Agreement from 1057 the Franchise Agencies’ Franchised Collectors. This shall be the Contractor’s only compensation allowed 1058 under this Agreement. Nothing in this Agreement should imply that the Authority or Franchise Agencies 1059 have any direct obligation to make payments to Contractor for services provided under this Agreement. 1060 5.2 Initial Rate 1061 5.2.1 General 1062 The Contractor’s initial compensation shall be a blended per-Ton Rate that is charged to the Franchise 1063 Agencies’ Franchised Collectors on all Tons of material, regardless of type, delivered by these Franchised 1064 Collectors to the Contractor. The Rate that forms the basis of Contractor’s compensation under this 1065 Agreement shall include: 1066 1) The “material specific” portion of the Rate which is to compensate Contractor for the services 1067 provided under Sections 4.1.1 through 4.1.6 of this Agreement; 1068 2) The “HHW” portion of the Rate which is to compensate Contractor for the services provided 1069 under Section 4.1.7 of this Agreement; 1070 3) The “Authority” portion of the Rate which is to compensate Contractor for its payment of the 1071 Authority’s operating expenses; 1072 4) The “Recycling Rebate” portion of the Rate which confers the value of the Recyclable 1073 Materials Processed under this Agreement to the Franchise Agencies’ rate payers; and 1074 5) The “Governmental Fee” portion of the Rate which is to compensate Contractor for fees 1075 required by various regulatory agencies related to the use of the Landfill and Approved Facilities. 1076 5.2.2 Material Specific Portion of the Rate 1077 The initial “material specific” portion of the Rate shall be based on Contractor’s calendar year 2014 1078 annual proposed cost of service of ten million two hundred fifty one thousand one hundred thirty five 1079 dollars ($10,251,135), less the initial cost of governmental fees, as described in Section 5.2.6, of one 1080 million four hundred nineteen thousand five hundred thirty four dollars and six cents ($1,419,534.06). 1081 The material specific portion of the initial Rate net of governmental fees shall equal sixty nine dollars 1082 and eighty five cents ($69.85) per ton which is calculated as follows: 1083 ---PAGE BREAK--- Version: 8/30/13 - 29 - a) Eight million eight hundred thirty one thousand six hundred dollars and ninety four cents 1084 ($8,831,600.94); 1085 b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 1086 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 1087 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 1088 (126,434) tons per year; and, 1089 c) Rounded to the nearest penny. 1090 5.2.3 HHW Portion of the Rate 1091 The initial “HHW” portion of the Rate shall be based on the Parties jointly-estimated calendar year 2014 1092 annual proposed cost of service of seven hundred ninety-one thousand one hundred forty-four dollars 1093 ($791,144). The HHW Portion of the Rate shall be shared with the City of El Cerrito and the portion paid 1094 by the City of El Cerrito shall not be included in the Rate calculated under this Agreement. The portion 1095 of the initial Rate funded under this Agreement is seven hundred twenty seven thousand eight hundred 1096 seventy seven dollars ($727,877). 1097 The HHW portion of the initial Rate shall equal five dollars and seventy five cents ($5.75) per ton which 1098 is calculated as follows: 1099 a) Seven hundred twenty seven thousand eight hundred seventy seven dollars ($727,877); 1100 b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 1101 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 1102 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 1103 (126,434) tons per year; and, 1104 c) Rounded to the nearest penny. 1105 5.2.4 Authority Portion of the Rate 1106 The initial “Authority” portion of the Rate shall be based on the Authority’s estimated calendar year 1107 2014 annual proposed revenue requirement of one million dollars ($1,000,000). The Authority portion 1108 of the Rate shall be shared with the City of El Cerrito and the portion paid by the City of El Cerrito shall 1109 not be included in the Rate calculated under this Agreement. The portion of the initial Rate funded 1110 under this Agreement is nine hundred twenty thousand thirty one dollars ($920,031). 1111 The Authority portion of the initial Rate shall equal seven dollars and twenty eight cents ($7.28) per ton 1112 which is calculated as follows: 1113 a) Nine hundred twenty thousand thirty one dollars ($920,031); 1114 b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 1115 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 1116 ---PAGE BREAK--- Version: 8/30/13 - 30 - purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 1117 (126,434) tons per year; and, 1118 c) Rounded to the nearest penny. 1119 5.2.5 Recycling Rebate Portion of the Rate 1120 The initial “Recycling Rebate” portion of the Rate shall be based on the Contractor’s proposed calendar 1121 year 2014 annual proposed rebate value of seven hundred twenty two thousand three hundred twenty 1122 dollars ($722,320). This estimate is based upon a rebate value of forty dollars ($40) per ton of Recyclable 1123 Materials received under this Agreement, multiplied by the Parties agreed-upon estimated annual 1124 tonnage of eighteen thousand fifty-eight (18,058). The initial recycling rebate shall be used in the 1125 establishment of Rates for Calendar Years 2014 and 2015. The Recycling Rebate shall only be used in 1126 calculating the Rate charged to Richmond Sanitary Service for the Franchise Agencies where they are the 1127 Franchised Collector. 1128 The Recycling Rebate portion of the initial Rate shall equal negative five dollars and seventy one cents 1129 $5.71) per ton which is calculated as follows: 1130 a) Negative seven hundred twenty two thousand three hundred twenty dollars ($722,320); 1131 b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 1132 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 1133 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 1134 (126,434) tons per year; and, 1135 c) Rounded to the nearest penny. 1136 5.2.6 Governmental Fee Portion of the Rate 1137 The initial “Governmental Fee” portion of the Rate shall be based on the governmental fees in place at 1138 the execution of this Agreement (as presented in the below table) and the stipulated basis for 1139 extrapolating those fees to annual costs, as described herein. 1140 1141 ---PAGE BREAK--- Version: 8/30/13 - 31 - 1150 1151 1152 Fee Description Fee Amount Stipulated Basis Annual Fee Amount Material Type Local Enforcement Agency – Golden Bear Transfer Station & West Contra Costa Sanitary Landfill $1.75/Ton 86,035 tons $150,561.25 Solid Waste City of Richmond Transfer Station Facility Franchise Fee (APPROVED TRANSFER FACILITY) $1.50/Ton 86,035 tons $129,052.50 Solid Waste sent for Disposal Host Mitigation Fees (IRRF)3 $3.47/Ton 17,909 tons $60,532.42$62,144.23 All Tons Host Mitigation Fees3 (APPROVED TRANSFER FACILITY) $3.47/Ton 86,035 tons $298,541.45$290,798.30 Solid Waste West Contra Costa Sanitary Landfill Processing Host Mitigation Fee – paid on all Processed Materials $0.93/Ton 21,359 tons $19,863.87$19,436.69 Processed (for example: C&D, organics, etc.) Contra Costa County Solid Waste Fee (AB 939 KCLC) $0.15/Ton 86,035 tons $12,905.25 Solid Waste Disposal AB 1220 Integrated Waste Management Fee KCLC $1.40/Ton 86,035 tons $120,449.00 Solid Waste Disposal Contra Costa Bailey Road Surcharge KCLC $0.68/Ton 86,035 tons $58,503.80 Solid Waste Disposal Bailey Road Charge KCLC $0.32/Ton 86,035 tons $27,531.20 Solid Waste Disposal Contra Costa County Landfill Surcharge (KCLC) 25% of Gate Rate, net of taxes/fees 86,035 Tons $34.50/ton minus per ton fees X 0.25 / 1.25 $549,763.65 Revenue Based Calculation 1153 Note: 1) Chart estimates Governmental Fees by material type and Facility 1154 2) Estimate based on actual Tons from July 1, 2012 through June 30, 2013 1155 3) Host Mitigation Fees and the West Contra Costa Sanitary Landfill Recycling Fee are adjusted 1156 annually and adjusted fee amounts go into effect on January 1 of each year 1157 Comment 2014 CPI ad and applied adjust to th Material plu $10,251,13 Comment SOI tons an ---PAGE BREAK--- Version: 8/30/13 - 32 - 1158 The Governmental Fee portion of the initial Rate shall equal eleven dollars and twenty three cents 1159 ($11.23) per ton which is calculated as follows: 1160 a) One million four hundred nineteen thousand five hundred thirty four dollars and six cents 1161 ($1,419,534.06); 1162 b) Divided by the total annual Tonnage of all material types in the Franchise Agencies for which 1163 Richmond Sanitary Service is the Franchised Collector, which is stipulated by the Parties for the 1164 purposes of the initial Rate setting at one hundred twenty six thousand four hundred thirty four 1165 (126,434) tons per year; and, 1166 c) Rounded to the nearest penny. 1167 5.2.7 Calculation of the Initial Rate 1168 The initial Rate for the Franchise Agencies where Richmond Sanitary Service acts as the Franchised 1169 Collector shall be eighty eight dollars and forty cents ($88.40) per ton, which is calculated by adding the 1170 Material Specific, HHW, Authority, Recycling Rebate, and Governmental Fee portions of the rRate 1171 together. 1172 5.3 Annual Adjustments to the Rate 1173 5.3.1 General 1174 The Rates for the first Rate Year ending December 31, 2014, are deemed established by the Parties 1175 mutual execution of this Agreement with no further action required. Unless and until the initial Rates set 1176 forth in Section 5.2 are adjusted by the Authority, the Contractor shall provide the Services required by 1177 this Agreement, charging no more and no less than the Rates authorized herein. No adjustment to the 1178 Rates shall be valid until the Authority Board of Directors takes official action in the form of a written 1179 resolution to adopt adjusted Rates. The Authority shall be responsible for considering annual 1180 adjustments to the Rate charged under this Agreement in a manner consistent with the requirements of 1181 this Section 5.3. 1182 Contractor shall submit its preliminary request for the adjustment of the Rate no later than September 1 1183 of each Calendar Year for the Rate effective January 1 of the following Calendar Year. The request shall 1184 be submitted in a format acceptable to the Authority Contract Manager. Contractor’s request for the 1185 adjustment of the Rate shall document all calculations and include all supporting schedules, 1186 documentation of changes to Governmental Fees, and any other documentation or evidence 1187 determined by the Authority Contract Manager to be reasonably necessary to ensure that the 1188 calculation of the Rate adjustments has been performed in strict conformance to the requirements of 1189 this Section 5.3. 1190 The Authority’s Board of Directors shall approve the Rate adjustment at its regularly-scheduled 1191 November meeting each year. If the adjustment to Rates cannot be considered and approved at that 1192 ---PAGE BREAK--- Version: 8/30/13 - 33 - meeting due to a delay caused solely by the Authority and/or Franchise Agencies, the Authority shall 1224 allow the Contractor to retroactively bill customers for the amount of the adjustment to the Rate for any 1225 period of said delay that is caused by the Authority and/or Franchise Agencies. If the adjustment to 1226 Rates cannot be considered and approved at that meeting due to a delay caused in whole by 1227 Contractor’s delay in submitting the request in a complete and accurate form, then prior Rates remain in 1228 effect until such adjustment is made and Contractor shall not be entitled to any revenue lost because of 1229 the delay. 1230 5.3.2 Adjustment to Material Specific Portion of the Rate 1231 The material-specific portion of the Rate (initially $69.85 per ton) shall be adjusted annually, based on 1232 eighty-five percent (85%) of the average change in the San Francisco-San Jose-Oakland All 1233 Urban Consumers CPI. The average change shall be calculated by averaging the percentage 1234 change in the index values for the most recent July through June, compared to the values for the same 1235 month one year prior. 1236 For example, the average change, using the fictional values presented in the table below, would 1237 equal one and sixteen hundredths percent (1.16%) and eighty-five percent (85%) of the average 1238 change would equal ninety eight hundredths of a percent 1239 1240 Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun 2011/ 2012 123.9 124.7 125.1 125.3 124.8 125.5 123.2 122.9 124.3 123.8 124.4 124.6 2012/ 2013 124.8 126.1 127.2 127.4 126.8 127.1 124.5 125.2 125.9 124.2 125.1 125.5 % Chg 0.73% 1.12% 1.68% 1.68% 1.60% 1.27% 1.06% 1.87% 1.29% 0.32% 0.56% 0.72% 1241 When applied to the material specific portion of the initial Rate, this example would result in a revised 1242 material-specific portion of the Rate of seventy dollars and fifty three cents ($70.53) per ton. 1243 1244 The maximum adjustment due to an increase in CPI to the material-specific portion of the blended Rate 1245 shall be four percent in each year of the Agreement; however, in the event that eighty-five percent 1246 (85%) of the average change in the CPI exceeds four percent the Contractor shall be 1247 allowed to carryover the amount that exceeds four percent to the following Rate Year, provided 1248 that doing so does not cause the Rate adjustment for that following Rate Year to exceed four percent 1249 The minimum adjustment due to changes in CPI to the material-specific portion of the blended 1250 rate shall be zero percent however, in the event that eighty-five percent (85%) of the average 1251 change in CPI results in a negative value, the Authority shall be allowed to carryover the 1252 negative amount to subsequent Rate Years, provided that doing so does not cause the Rate adjustment 1253 for that subsequent Rate Year to be less than zero percent 1254 Comment involved in collection R Comment however ca ---PAGE BREAK--- Version: 8/30/13 - 34 - 5.3.3 Adjustment to HHW Portion of the Rate 1255 The Contractor and the Authority Contract Manager shall jointly prepare and submit a draft HHW Drop- 1256 off Services budget to the Authority Board of Directors for its review and approval. This draft budget 1257 shall be submitted no later than September 1 in each Calendar Year for the next Calendar Year’s budget. 1258 The Authority Board of Directors may approve that budget as submitted or may request modifications to 1259 the budget, including requesting either an increase in service levels or a reduction or elimination of 1260 Services in order to reduce costs. Once approved, this budget shall serve as the revenue requirement for 1261 the HHW portion of the Rate for the coming year. Contractor shall be entitled to an operating margin of 1262 eleven and fifty five one hundredths percent (11.55%) for calendar year 2014 and fifteen percent (15%) 1263 in all subsequent Rate Years. 1264 The revenue requirement for the HHW portion of the Rate shall be divided by the actual Tonnage of 1265 Solid Waste, Recyclable Materials, C&D Materials, Organic Materials, and Dry Materials received by 1266 Contractor from the Franchise Agencies’ Franchised Collector in the most recently completed twelve 1267 month period to determine the adjusted Rate. 1268 For example: 1269 If, the HHW revenue requirement was six hundred thousand dollars ($600,000); and, 1270 If, the total tonnage received by Contractor from the Franchised Collector in the most recently 1271 completed twelve month period is one hundred fifty thousand (150,000) tons; 1272 Then, the HHW portion of the Rate would be four dollars and zero cents ($4.00) per ton. 1273 5.3.4 Adjustment to Authority Portion of the Rate 1274 No later than September 1 of each Calendar Year, the Authority shall establish a budget for their 1275 operations and shall specifically identify the portion of that budget to be funded through the Rate. Once 1276 approved, this budget shall serve as the revenue requirement for the Authority portion of the Rate. 1277 The revenue requirement for the Authority portion of the Rate shall be divided by the actual Tonnage of 1278 Solid Waste, Recyclable Materials, C&D Materials, Organic Materials, and Dry Materials received by 1279 Contractor from the Franchised Collector in the most recently completed twelve month period to 1280 determine the adjusted Rate. 1281 For example: 1282 If, the Authority revenue requirement was nine hundred thousand dollars ($900,000); and, 1283 If, the total tonnage received by Contractor from the Franchised Collector in the most recently 1284 completed twelve month period is one hundred fifty thousand (150,000) tons; 1285 Then, Authority portion of the Rate would be six dollars and zero cents ($6.00) per ton. 1286 ---PAGE BREAK--- Version: 8/30/13 - 35 - 5.3.5 Adjustment to Recycling Rebate Portion of the Rate 1287 When establishing the revenue requirement for the Recycling Rebate portion of the Rate for each Rate 1288 Year of the Agreement, starting with 2016, the revenue requirement shall include adjusting the per-Ton 1289 and annual Tonnage values considered in the establishment of the initial Recycling Rebate described in 1290 Section 5.2.5 above. 1291 The initial per Ton value of negative forty dollars shall be adjusted to be twenty eight and 1292 seventeen hundredths percent (28.17%) of the average (for the most recent July through June) 1293 low side of the “Official Board Markets”, “Los Angeles” index for “Mixed Paper – Export to China – 1294 FAS”, rounded to the nearest penny. That index value was 142 in November 2012 at the time of 1295 Contractor’s Proposal to the Authority. 1296 For example: 1297 If the index values for the preceding twelve months are: Jul – 148, Aug – 1298 147; Sept – 144, Oct – 143, Nov – 141, Dec – 138, Jan – 138, Feb – 144, 1299 Mar – 145, Apr – 148, May – 146, Jun – 149, then, 1300 Average = $144.25 x 0.2817 (stated percentage of OBM) = 1301 $40.64 Revised Per-Ton Rebate 1302 The initial annual Tonnage value shall be adjusted to reflect the actual total Tonnage of source 1303 separated Residential single-stream Recyclable Materials collected by the Franchised Collector and 1304 delivered to the Approved Recyclable Materials Processing Facility during the preceding twelve (12) 1305 months. 1306 For example: 1307 If the Recyclables Tonnage values for the preceding twelve months are: 1308 Jul – 1,448, Aug – 1,547; Sept – 1,443, Oct – 1,421, Nov – 1,494, Dec – 1309 1,384, Jan – 1,652, Feb – 1,644, Mar – 1,715, Apr – 1,480, May – 1,346, 1310 Jun – 1,549, then, 1311 Revised Annual Tonnage = 18,123 1312 The revised per-Ton rebate value is then multiplied by the revised 1313 annual Tonnage value to arrive at the recycling rebate for the coming 1314 Calendar Year. For example: 1315 18,123 Revised Annual Tonnage 1316 X 40.64 Revised Per-Ton Rebate Value 1317 -$736,518.72 Revised Recycling Rebate Revenue Requirement 1318 ---PAGE BREAK--- Version: 8/30/13 - 36 - The revenue requirement for the Recycling Rebate portion of the Rate shall be divided by the actual 1319 Tonnage of Solid Waste, Recyclable Materials, C&D, Organic Materials, and Dry Materials received by 1320 Contractor from the Franchise Agencies’ Franchised Collector in the most recently completed twelve 1321 month period to determine the adjusted Rate. 1322 For example: 1323 If, the Recycling Rebate revenue requirement was negative seven hundred thirty six thousand 1324 five hundred eighteen dollars and seventy two cents (-$736,518.72); and, 1325 If, the total tonnage received by Contractor from the Franchised Collector in the most recently 1326 completed twelve month period is one hundred fifty thousand (150,000) tons; 1327 Then, the Recycling Rebate portion of the Rate would be negative four dollars and ninety one 1328 cents per ton. 1329 5.3.6 Adjustment to Governmental Fee Portion of the Rate 1330 When establishing the revenue requirement for the Governmental Fee portion of the Rate for each Rate 1331 Year of the Agreement, starting with 2015, the revenue requirement shall include adjusting the basis for 1332 any Governmental Fees which have changed in the prior year and annual Tonnage values considered in 1333 the establishment of the Governmental Fee portion of the Rate described in Section 5.2.6 above. 1334 When preparing its request for the adjustment of Rates, Contractor shall prepare a table, consistent 1335 with the table of Governmental Fees presented in Section 5.2.6 above identifying the amount of each 1336 fee, the revised basis for the fee using the prior twelve months actual operating results, and the revised 1337 projected annual fee amount. The revised basis for any Governmental Fee that is based on a percentage 1338 of revenue may not exceed the percentage adjustment calculated for the Material Specific portion of 1339 the Rate under Section 5.3.2, unless such revised basis is required by the governmental agency 1340 responsible for setting and/or adjusting such fee. The sum of the annual fee amounts shall serve as the 1341 revenue requirement for the Governmental Fee portion of the Rate. 1342 In the event that there is a change in any existing Governmental Fee or creation of any new 1343 Governmental Fee impacting the services provided under this Agreement and such change becomes 1344 known to the Parties after the Authority’s approval of revised Rates, the Authority shall have the option 1345 of revising the Rate outside of the schedule defined herein or may postpone the adjustment of 1346 the Rate and allow Contractor to apply a surcharge to the following year’s Rate in order to make up the 1347 change. The Authority shall have no obligation to make such out of schedule adjustments or allow such 1348 surcharges in the event that the cumulative remaining annual effect of such change is valued at less 1349 than twelve thousand five hundred dollars ($12,500). 1350 In the event that Contractor knew or reasonably should have known of such change prior to the 1351 approval of revised Rates and Contractor fails to notify the Authority of such change prior to the 1352 adjustment of Rates, Contractor shall not be allowed to recover the cost associated with such change. In 1353 such case, Contractor may identify the revised Governmental Fee amount in the subsequent Rate 1354 ---PAGE BREAK--- Version: 8/30/13 - 37 - adjustment requests, but such requests shall not include any surcharge, catch-up payments, or other 1385 recovery of costs incurred in the prior Rate period. 1386 The revenue requirement for the Governmental Fee portion of the Rate shall be divided by the actual 1387 Tonnage of Solid Waste, Recyclable Materials, C&D Materials, Organic Materials, and Dry Materials 1388 received by Contractor from the Franchised Collector in the most recently completed twelve month 1389 period to determine the adjusted Rate. 1390 For example: 1391 If, the Governmental Fee revenue requirement was one million seven hundred thousand dollars 1392 ($1,700,000); and, 1393 If, the total tonnage received by Contractor from the Franchised Collector in the most recently 1394 completed twelve month period is one hundred fifty thousand (150,000) tons; 1395 Then, Governmental portion of the Rate would be eleven dollars and thirty three cents ($11.33). 1396 5.3.7 Calculation of the Adjusted Rate 1397 The adjusted portions of the Rate, as described in Sections 5.3.2 through 5.3.6, shall be added together 1398 to determine the Rate for the following Rate Year. Using the example calculations provided in Sections 1399 5.3.2 through 5.3.6 above, the revised adjusted per ton Rate would be calculated as: 1400 a) Revised Material Specific portion of the Rate =$70.53; plus, 1401 b) Revised HHW portion of the Rate = $4.00; plus, 1402 c) Revised Authority portion of the Rate = $6.00; plus, 1403 d) Revised Recycling Rebate portion of the Rate = -$4.91; plus, 1404 e) Revised Governmental Fee portion of the Rate = $11.33; equals 1405 f) Revised Rate = $86.95 1406 5.4 Establishment of Post-Collection Surcharge 1407 The Rate shall be multiplied by the Tons of material handled by Contractor from each Sector and then 1408 divided by the: gallons of Solid Waste service in that Sector to establish cart-based Post-Collection 1409 Surcharges; cubic yards of Solid Waste service in that Sector to establish bin-based Post-Collection 1410 Surcharges; and, tons of Solid Waste and C&D Material service in that Sector to establish roll-off Post- 1411 Collection Surcharges. The resulting value shall be rounded to the nearest cent per gallon, cubic yard, or 1412 ton. 1413 For example: 1414 Comment denote diff agreed to c feeling to c payers. To denote t and post co Surcharge. Peter and C ---PAGE BREAK--- Version: 8/30/13 - 38 - If, the Rate is $88.40 per ton; and, 1415 If, residential Sector cumulative Tonnage of Solid Waste, Recyclable Materials, and Organic 1416 Materials was 38,000 Tons in the previously completed twelve months; and, 1417 If, residential Sector cumulative Solid Waste service equals 6,430,050 gallons; 1418 Then, the residential Post-Collection Surcharge would be four cents ($0.04) per gallon per 1419 month. 1420 ($88.40 per ton x 38,000 tons) / (6,430,050 gallons per month x 12 months) = $0.04 1421 Contractor, through the Franchise Collector, may apply the Post-Collection Surcharges to Customer bills 1422 on the basis of their Solid Waste service level as measured in gallons, cubic yards, or tons. 1423 For example, using the $0.04 per-gallon example Post-Collection Surcharge calculated above, a 1424 residential customer receiving 32-gallons per week of Solid Waste collection service would receive a 1425 Post-Collection Surcharge of five dollars and fifty four cents ($5.54) per month, calculated as: 1426 $0.04 per gallon x 32 gallons x 4.33 weeks per month = $5.54 1427 5.5 Other Adjustments to Compensation 1428 The Contractor may request the Authority’s consideration of an adjustment to Contractor’s 1429 compensation in the event of the following circumstances: 1430 • Enactment of new or changes to existing federal, State and local fees and surcharges mandated to 1431 be collected or paid by Contractor; 1432 • A Change in Law for which Contractor compliance is mandatory and that results in documented 1433 increases in the specific cost of providing Services pursuant to this Agreement; and, 1434 • Authority-requested changes in the scope of Services provided by the Contractor. 1435 The Authority shall consider such requests and shall not unreasonably deny an adjustment to Rates 1436 under the prescribed circumstances. In the case of the enactment of new or increased government or 1437 Franchise Agency fees and charges, the Authority shall approve the request as a pass-through out of 1438 schedule or during the next regularly scheduled adjustment. 1439 In the event of a special circumstances request for an adjustment to Rates, the Contractor shall 1440 document its estimate of the incremental change in costs associated with the special circumstance. The 1441 Authority may request additional information from the Contractor if the documentation provided is 1442 determined to be insufficient. The Authority may consider information provided by the Contractor along 1443 with information from other sources to estimate the cost associated with such a special circumstance. In 1444 the event the Contractor requests an interim Compensation adjustment in accordance with this Section 1445 and to the extent Contractor’s Application is based on costs associated with Affiliated or Related Party 1446 Entities, Contractor shall provide all information requested by the Authority as part of its review of 1447 Contractor’s application, including, but not limited to, all information from Related Parties requested by 1448 ---PAGE BREAK--- Version: 8/30/13 - 39 - the Authority regarding any transaction between Contractor and any Related Party Entity or Affiliate 1470 relating to Contractor’s performance under this Agreement. 1471 1472 The following items shall not be considered in the adjustment of Post-Collection Rates: 1473 • Changes in the price of fuel; 1474 • Decreases in Recycling revenues (except as specifically contemplated in Section 5.3.5) due to 1475 changes in market conditions or any other factor from the sale of Recyclable Materials; 1476 • Increases in the costs of Solid Waste, Recyclable Materials, Organic Materials, or C&D Material 1477 Processing not incurred as a result of Changes in Law; 1478 • Increases in Transportation time and/or costs related to provision of Services provided under the 1479 Agreement; 1480 • Changes in the number of Customers due to changes in population or housing/business 1481 development or annexations; 1482 • Changes in Customer subscription levels as Customers subscribe to Recycling and Organics 1483 Collection Services they may be able to reduce Solid Waste Collection, resulting in a potential 1484 revenue loss to the Contractor); 1485 • Changes in the volume or composition of materials; 1486 • Changes in the Approved Processing Facilities used to perform Services, unless those changes to 1487 facilities are the direct result of an Authority directed change in scope; or,. 1488 • Cost for providing Enhanced Collection Services described in Exhibit 2.4.6. 1489 1490 Comment ---PAGE BREAK--- Version: 8/30/13 - 40 - ARTICLE 6 1491 INDEMNITY, INSURANCE, AND PERFORMANCE BOND 1492 6.1 Defense and Indemnification 1493 Contractor shall hold harmless, defend and indemnify Authority and its officers, officials, employees and 1494 volunteers from and against any and all liability, loss, damage, expense, costs (including without 1495 limitation costs and fees of litigation) of every nature arising out of or in connection with Contractor’s 1496 performance of work hereunder or its failure to comply with any of its obligations contained in this 1497 Agreement, except such loss or damage which was caused by the active negligence or willful misconduct 1498 of the Authority (including the Persons described in the definition of Authority in Exhibit However, if 1499 a final judgment or resolution of any Action allocates Liability by determining that any portion of Liability 1500 is attributable to a wrongful or active negligent act, error or omission of the Authority, the Authority 1501 shall pay those allocated portions of Liabilities and of defense costs. 1502 6.1.1 Agreement Defense 1503 Contractor shall defend, at its sole cost and expense, with counsel approved by the Authority, the 1504 Authority (including the Persons described in the definition of Authority in Exhibit 1) in any Actions that 1505 assert or allege Liabilities paid, incurred or suffered by, imposed upon or asserted against, the Authority 1506 (including the Persons described in the definition of Authority in Exhibit 1) that result or are claimed to 1507 have resulted directly or indirectly by Contractor’s negligent performance or non-performance of this 1508 Agreement, including the following: 1509 Contractor negligence or misconduct: the wrongful, willful or negligent act, error or omission, 1510 or the misconduct of the Contractor (including the Persons described in the definition of Contractor in 1511 Exhibit 1512 Failure to comply with Applicable Law: Contractor’s failure or alleged failure to comply with 1513 Applicable Law or any alleged Violation thereof, including any Actions in connection with its Permits; 1514 Breach of representation: Contractor’s breach of any representation, warranty or covenant 1515 made in this Agreement; or, 1516 Challenges to Agreement: legal challenge to the authority of the Authority to enter into this 1517 Agreement or to contract out Services, regardless of the legal theory advanced or relied upon by any 1518 interested third party, including any appeals necessary to validate that authority or the Agreement. 1519 Authority reserves the right to retain, at its sole cost and expense, co-counsel and Contractor shall direct 1520 Contractor’s counsel to assist and take direction from such co-counsel with respect to Authority’s 1521 defense. 1522 ---PAGE BREAK--- Version: 8/30/13 - 41 - 6.1.2 Agreement Indemnification 1523 Contractor shall indemnify, release, and hold harmless, at its sole cost and expense, the Authority 1524 (including the Persons described in the definition of Authority in Exhibit 1) from and against all Liabilities 1525 paid, incurred or suffered by, imposed upon or asserted against, the Authority (including the Persons 1526 described in the definition of Authority in Exhibit 1) that result or are claimed to have resulted directly 1527 or indirectly by Contractor’s performance or non-performance of this Agreement, including the items 1528 listed in preceding Section 6.1.1, whether or not those Liabilities are litigated, settled or reduced to 1529 judgment and whether or not those Liabilities are caused in part by any wrongful or negligent act, error 1530 or omission of any Person indemnified under this Agreement. However, if a final judgment or resolution 1531 of any Action allocates Liability by determining that any portion of Liability is attributable to a wrongful 1532 or active negligent act, error or omission of the Authority (including the Persons described in the 1533 definition of Authority in Exhibit the Authority shall pay those allocated portions of Liabilities and of 1534 defense costs 1535 6.1.3 Unpermitted Waste Defense and Indemnification 1536 Contractor shall defend, indemnify, and hold harmless at its sole cost and expense with counsel 1537 approved by the Authority, the Authority (including the Persons described in the definition of Authority 1538 in Exhibit 1) in any Actions that assert or allege Liabilities paid, incurred or suffered by, imposed upon or 1539 asserted against, the Authority that result or are claimed to have resulted directly or indirectly from the 1540 presence, Disposal, escape, migration, leakage, spillage, discharge, release or emission of Unpermitted 1541 Waste or petroleum to, in, on, at, or under the Landfill or Approved Processing Facilities, whether: 1542 in one or more instance, 1543 threatened or transpired, 1544 Contractor is negligent or otherwise culpable, or 1545 those Liabilities are litigated, settled, or reduced to a final judgment. 1546 For purposes of this Indemnity, Liabilities includes, in addition to those included in Exhibit 1, Liabilities 1547 arising from or attributable to any operations, repair, clean-up or detoxification, or preparation and 1548 implementation of any removal, remedial, response, Closure, Post-Closure or other plan, regardless of 1549 whether undertaken due to government directive or action, such as remediation of surface or ground 1550 water contamination and replacement or restoration of natural resources. 1551 The foregoing indemnity is intended to operate as an agreement pursuant to 42 U.S.C. Section 9607(e) 1552 and California Health and Safety Code Section 25364, to insure, protect, hold harmless and indemnify 1553 the Authority from liability in accordance with this Section. 1554 6.1.4 Environmental Indemnity 1555 Contractor shall defend, indemnify, and hold the Authority harmless against and from any and all claims, 1556 suits, losses, penalties, damages, and liability for damages of every name, kind and description, including 1557 ---PAGE BREAK--- Version: 8/30/13 - 42 - attorneys’ fees and costs incurred, attributable to the negligence or willful misconduct of Contractor in 1558 handling Unpermitted Waste. 1559 6.1.5 HHW Services Indemnity and Insurance 1560 Contractor shall require its HHW services Subcontractor to fully indemnify, defend, and hold harmless 1561 both the Authority and Contractor from and against any and all liability, loss, damage, expense, costs 1562 (including without limitation costs and fees of litigation) of every nature arising out of or in connection 1563 with HHW services Subcontractor’s performance of activities, operations, and final disposal or recycling 1564 associated with the Household Hazardous Waste Facility, except such loss or damage which was caused 1565 by the active negligence or willful misconduct of the Authority or Contractor. Furthermore, the 1566 subcontractor shall maintain certificates of insurance for Professional and Pollution Legal Liability 1567 naming both the Authority and Contractor as an additional insured, to the extent available, in the 1568 minimum amounts of three million dollars ($3,000,000) per occurrence and five million dollars 1569 ($5,000,000) in the aggregate. In the event that the HHW services Subcontractor is unable to meet the 1570 required minimum insurance amounts, then Contractor shall take all reasonable actions to provide an 1571 equivalent indemnity of the Authority in the interim, while the Authority and Contractor meet and 1572 confer to develop an alternative that adequately protects the Authority. 1573 6.2 Insurance Policies 1574 6.2.1 Types and Amounts; Deductibles and Self-Insured Retentions 1575 As of the Service Commencement Date, Contractor shall secure and maintain, and enter into 1576 agreements to cause its Subcontractors, if any, to secure and maintain or provide that Subcontractors 1577 are insureds under Contractor's policies, in full force and effect the types and amounts of insurance 1578 coverage, together with related specified deductibles and endorsements, listed in Exhibit 6.2 or required 1579 by Applicable Law, whichever is greater, in a form acceptable to Authority. 1580 The Contractor must declare to Authority any self-insured retentions. Authority at its sole discretion 1581 may approve them; or, (ii) require Contractor to reduce or eliminate them as respects the Authority, 1582 its officials and employees; or to procure a bond or letter of credit guaranteeing payment of losses and 1583 related investigations, claim administration and defense expense. 1584 If any third Person makes a claim against Contractor or any Subcontractors exceeding the amount of any 1585 deductibles, self-insured reserves, letters of credit, or bonds guaranteeing payment thereof, Contractor 1586 shall Notify the insurer, bond surety or letter of credit provider and Authority thereof. 1587 6.2.2 Required Provisions 1588 Primary. Policies shall always be primary with respect to the Contractor's Services and the 1589 Authority, the Authority's Affiliated employees, the Board of Directors, officers, officials, agents, 1590 assigns and volunteers (Authority insureds). 1591 ---PAGE BREAK--- Version: 8/30/13 - 43 - (ii) Additional insureds. Authority insureds must be included as additional insureds by endorsement 1592 under the Comprehensive General, Automobile Liability, Environmental Impairment Liability Policies 1593 and any other pollution policies secured by Contractor. A copy of the endorsement or evidence of 1594 blanket or contractual additional insured status must be submitted with the certificate(s) of insurance. 1595 (iii) Excess, not contributory. Insurance coverage written specifically for the Authority must be 1596 considered excess and not contributory and any insurance or self-insurance maintained by Authority 1597 insureds is in excess of Contractor's insurance and shall not contribute with it. 1598 (iv) Separate application. All insurance must apply separately to each insured against whom a claim is 1599 made or suit is brought, except with respect to the limits of the insurer's liability. 1600 No special limitations. Coverage shall contain no special limitations on the scope of protection 1601 afforded to Authority insureds, except in cases of fraud perpetrated by the Authority. 1602 (vi) Reporting provisions. Any failure to comply with reporting provisions of policies shall not affect 1603 coverage provided to Authority insureds. 1604 (vii) Waiver of subrogation. Insurer, including workers compensation and general liability policy 1605 insurers, by endorsement must waive all rights of subrogation against Authority insureds for losses 1606 arising from performance of Services by Contractor, except for the sole negligence of the Authority. 1607 B. Insurers. Contractor shall procure insurance from insurers approved by Authority Risk Manager, 1608 an admitted company in California and authorized to do business there, having not less than size 1609 category VII and a rating of A or better ("A-VII") by A.M. Best Company, Inc. 1610 C. Endorsements; Notices to Authority of Cancellation. Policies must bear endorsements in 1611 substantially the form provided in Exhibit 6.2, providing that coverage shall not be suspended, voided, 1612 canceled by either Party, reduced in coverage or limits, not renewed, or otherwise changed or modified 1613 except after prior written notice by e-mail, to the Authority thirty (30) Calendar Days in advance, or if 1614 the reason for cancellation is non-payment of premiums, ten (10) Calendar Days in advance. 1615 Endorsements shall not contain mere "best effort" modifiers or relieve the insurer from its responsibility 1616 to give the Authority notice. 1617 D. Evidence of Coverage. As of the Service Commencement Date, Contractor shall provide 1618 certificates of insurance and original endorsements required under this Agreement, signed by an 1619 authorized representative of the insurance company and including the signatory's company affiliation 1620 and title. Upon Authority’s request, Contractor shall provide, or cause to be provided, to the Authority 1621 documentation acceptable to the Authority verifying that the individual signing those documents are 1622 authorized by the insurer to bind coverage on the insurer’s behalf. At that time and thereafter 1623 simultaneously with renewal of the policies, Contractor shall file with the Authority a certificate of 1624 insurance and endorsements, in form and substance satisfactory to the Authority (including type and 1625 amount of coverage, effective dates, and expiration dates) signed or counter-signed by an authorized 1626 officer of the broker, certifying that the coverage has not lapsed and shall remain in effect at all times 1627 during the term of the policy. 1628 ---PAGE BREAK--- Version: 8/30/13 - 44 - E. Contractor Compliance. Contractor shall comply with all requirements of policies and the 1629 insurers. Carrying insurance shall not relieve Contractor from any obligations under this Agreement. 1630 Nothing in this Agreement may be construed as limiting in any way the extent to which the Contractor 1631 may be held responsible for payments of damages to Persons or property resulting from Contractor's or 1632 any Subcontractors’ performance of Services. 1633 F. Worker’s Compensation. Contractor shall provide workers’ compensation coverage as required 1634 by State law, and prior to the Service Commencement Date pursuant to this Agreement, Contractor shall 1635 file the following statement with the Authority. 1636 “I am aware of the provisions of Paragraph 3700 of the Labor Code that require every employer to be 1637 insured against liability for workers' compensation or to undertake self-insurance in accordance with the 1638 provisions of that code, and I shall comply with such provisions before commencing any Services 1639 required by this Agreement. 1640 The Person executing this Certificate on behalf of Contractor affirmatively represents that she/he has 1641 the requisite legal authority to do so on behalf of Contractor, and both the Person executing this 1642 Agreement on behalf of Contractor and Contractor understand that the Authority is relying on this 1643 representation in entering into this Agreement.” 1644 6.3 Performance Surety 1645 Within seven Calendar Days of the Authority’s notification to Contractor that the Authority has 1646 executed this Agreement, Contractor shall file with the Authority a letter of credit or a performance 1647 bond, payable to the Authority, securing the Contractor's performance of its obligations under this 1648 Agreement and such bond shall be renewed annually if necessary so that the performance bond is 1649 maintained at all times during the Term. The surety shall be in the amount of two million dollars 1650 ($2,000,000) and shall be used to secure the performance of the Contractor’s Post-Collection Services 1651 obligations under the Agreement. The bond shall be executed as surety by a corporation authorized to 1652 issue surety bonds in the State of California that has a rating of A or better in the most recent edition of 1653 Best’s Key Rating Guide, and that has a record of service and financial condition satisfactory to the 1654 Authority. 1655 1656 ---PAGE BREAK--- Version: 8/30/13 - 45 - ARTICLE 7 1657 DEFAULT BY CONTRACTOR AND TERMINATION 1658 7.1 Contractor Default 1659 Each of the following shall constitute an event of default by Contractor (“Contractor Default”), under 1660 this Agreement: 1661 7.1.1 Service Defaults 1662 Failure to Perform. Contractor’s failure to perform any duty or obligation in whole or in part for 1663 more than one consecutive Working Day or more than five total Working Days in any Calendar 1664 Year. A failure to perform may also include Contractor’s failure to fully implement the Recycling, 1665 Composting, other Processing, and education and outreach programs required under this Agreement 1666 which may be determined as part of the performance review described in Section 4.21. 1667 Uncured Breach. Contractor fails or refuses to perform any of its obligations under this 1668 Agreement; the Authority Contract Manager notifies the Contractor in writing that a specific failure or 1669 refusal has occurred which shall, unless corrected, in its opinion, give the Authority a right to 1670 terminate this Agreement; and the Contractor does not correct the breach within twenty (20) 1671 Calendar Days of receiving the Authority Contract Manager's Notice thereof. However, if the breach is 1672 not capable of cure within twenty (20) Calendar Days, Contractor shall provide the Authority 1673 Contract Manager a Notice explaining why Contractor believes it needs additional time to effectuate a 1674 cure, together with a schedule therefore, and shall diligently proceed to cure the breach within that 1675 schedule, whereupon Authority, at its sole discretion, may accept Contractor's schedule of cure, or 1676 make a written demand that Contractor cure the default within an alternative reasonable time 1677 period set by Authority. 1678 Repeated Breach. Contractor fails or refuses to perform any of its obligations under this 1679 Agreement repeatedly or habitually, as documented in writing, whether or not specific instance of 1680 failure or refusal has been previously cured. 1681 Failure to Comply With Applicable Law. Contractor fails to comply with Applicable Law that is 1682 material to this Agreement. This does not constitute a default if: a) after notice of violation or non- 1683 compliance the Contractor is actively disputing its compliance with Applicable Law before any court or 1684 administrative agency; or, b) after exhaustion of all appeals, a final judgment in favor of Contractor is 1685 reached. 1686 Criminal Activity. The occurrence of any Criminal Activity related to this Agreement by any 1687 employee, supervisor, manager, officer, or director of Contractor, except that Contractor may cure the 1688 breach by terminating any and all individuals involved in the Criminal Activity within five Working 1689 Days of a notice from the Authority Contract Manager. 1690 ---PAGE BREAK--- Version: 8/30/13 - 46 - 7.1.2 Performance Assurance Defaults 1691 Failure to Provide Insurance. Contractor fails to provide insurance in accordance with Section 1692 6.2, or Guaranty Agreement in accordance with Section 8.20; 1693 Failure to Provide Assurances of Performance. Contractor fails to timely provide assurances of 1694 performance in accordance with Section 8.16; 1695 Failure to Pay Authority. Contractor fails to timely pay Authority any amounts due and owing 1696 to Authority, including procurement reimbursement in accordance with Section 2.4.4, reimbursement 1697 of costs for alternative services in accordance with Section 7.3 and liquidated damages in accordance 1698 with Section 8.19; 1699 Transfer, Assignment. Contractor Assigns this Agreement without Authority approval required 1700 by Section 8.5; 1701 Seizure, Attachment. Any asset used to provide Services is seized, attached, or levied upon 1702 (other than a pre-judgment attachment) so as to substantially impair Contractor's ability to timely and 1703 fully perform Services, and which cannot be released, bonded, or otherwise lifted within forty-eight 1704 hours (48), excepting weekends and Holidays; 1705 Insolvency, Bankruptcy, Liquidation. Contractor files a voluntary claim for debt relief under any 1706 applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or 1707 shall consent to the appointment of or taking of possession by a receiver, liquidator, Assignee (other 1708 than as a part of a transfer of assets no longer used to provide Services or backup Services), trustee 1709 (other than as security of an obligation under a deed of trust), custodian, sequestration, administrator 1710 (or similar official) of Contractor for any part of Contractor's operating assets or any substantial part of 1711 Contractor's property, or shall make any general Assignment for the benefit of Contractor's creditors, 1712 or shall fail generally to pay Contractor's debts as they become due or shall take any action in 1713 furtherance of any of the foregoing. The foregoing notwithstanding, nothing herein shall or is intended 1714 to affect the jurisdiction and authority of any trustee or receiver in connection with bankruptcy 1715 proceedings pursuant to the federal Bankruptcy Act or any similar or successor statute. 1716 A court, having jurisdiction, enters a decree or order for relief in respect of the Agreement, in any 1717 involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or 1718 hereafter in effect, or Contractor consents to or fails to oppose any proceeding, or that court enters a 1719 decree or order appointing a receiver, liquidator, Assignee, custodian, trustee, sequestrator, 1720 administrator (or similar official) of the Contractor or for any part of the Contractor's operating 1721 equipment or assets, or orders the winding up or liquidation of the affairs of the Contractor. 1722 7.1.3 Miscellaneous 1723 False Representations; Breach of Representations or Warranties. Contractor makes a 1724 representation, certification, or warranty in this Agreement or pursuant to this Agreement which 1725 Contractor knows, or in the course of diligently conducting business and providing Services should 1726 ---PAGE BREAK--- Version: 8/30/13 - 47 - have known, is untrue as of the date thereof. Contractor makes a representation or fails to make a 1727 disclosure, whether within this Agreement or otherwise, to the Authority in connection with, or as a 1728 material inducement to, entering into this Agreement or any future amendment to this Agreement, 1729 which representation or failed disclosure is false or misleading in any material respect when made. 1730 Default under Guaranty Agreement. Any default occurs under Section (24) of the Guaranty 1731 Agreement, which default for failure to pay the Guaranty listed in item (24)(a) thereof is not timely 1732 cured as provided therein, and which default for breach listed in item (24)(c) thereof continues for the 1733 period provided therein. 1734 7.2 Right to Suspend or Terminate Agreement 1735 7.2.1 Termination Events 1736 Authority may terminate this Agreement in the following events: 1737 Contractor Default: the repeated occurrence of an uncured material Contractor Default; 1738 Failure to Perform Core Obligations: If after exhausting the remedies available in Sections 4.18 1739 and/or 8.12, for whatever reason, Contractor is unable to perform its core obligations under this 1740 Agreement for a period of thirty (30) Calendar Days beyond the timeline described in Section 8.12.; 1741 Contractor’s use of non-approved Alternative Facility: the Contractor provides services 1742 through an alternative facility contrary to the direction of the Authority as required in Section 4.12. 1743 Assignment of Guaranty Agreement Without Consent: the Guarantor Assigns the Guaranty 1744 Agreement without consent required by Section of the Guaranty Agreement despite the Authority 1745 Board of Directors action denying Authority consent, and on or before fifteen (15) Calendar Days 1746 thereafter, the Guarantor does not provide Authority with a substitute Guarantor or alternative 1747 financial credit support satisfactory to Authority. 1748 7.2.2 Notice 1749 Notice of termination may be effective no sooner than: 1750 Immediately or upon other period stated by Authority with respect to Contractor Defaults 1751 described in Section 7.1.2 (including, but not limited to, Failure to Provide Insurance) and, to the 1752 extent permitted by Applicable Law, Section 7.1.2 (Insolvency, Bankruptcy, Liquidation); 1753 Two Working Days after giving Contractor a Notice with respect to a Contractor Default 1754 described in Section 7.1.1 (Failure to Perform); and, 1755 Fifteen (15) Working Days after giving Contractor a Notice with respect to all other Contractor 1756 Defaults or termination events. 1757 ---PAGE BREAK--- Version: 8/30/13 - 48 - 7.2.3 Contractor's Obligations Upon Expiration or Termination 1758 Pay Outstanding Amounts. Contractor shall pay Authority any amounts, including liquidated or 1759 compensatory damages, then accrued and payable, net of any amounts due from Authority in 1760 accordance with Section 4.13. 1761 Indemnities. Contractor shall meet its obligations under any Indemnifications including any 1762 such obligations and Indemnifications that survive the termination of this Agreement. 1763 7.3 Right to Perform 1764 In the events described in items (Contractor Default) and (Assignment of Guaranty Agreement 1765 Without Consent) of Section 7.2.2, the Authority, at its sole discretion, may perform and complete, by 1766 contract or otherwise, Services or a portion thereof (other than operating the Approved Processing 1767 Facilities and Landfill which are the property of Contractor) and incur all expenses necessary for full and 1768 timely provision of Services. 1769 7.4 All Other Available Remedies 1770 If Authority suspends or terminates this Agreement, it may exercise remedies of damages and any other 1771 available remedies at law and in equity (including specific performance).Contractor acknowledges that 1772 Authority's remedy of damages for a breach of this Agreement by Contractor in accordance with this 1773 Section may be inadequate for reasons including: 1774 The urgency of timely, continuous and high-quality waste management Service under this 1775 Agreement, including, but not limited to, Disposal of wastes which constitute a threat to public health; 1776 (ii) The long time and significant investment of money and personnel (both Authority staff, elected 1777 Authority officials and private consultants, including procurement consultants, Diversion consultants, 1778 and procurement counsel) required to structure a competitive procurement; draft a request for 1779 proposal; advertise the procurement and solicit proposals; distribute the Request for Proposal, hold 1780 pre-proposal meetings and respond to proposers questions about the procurement; revise documents 1781 based on solicited proposer comment; evaluate proposals; and finalize and award this Agreement; 1782 and, 1783 (iii) The Authority's reliance on Contractor's technical waste management expertise. 1784 Consequently, Authority is entitled to all available equitable remedies, including injunctive relief. 1785 Compensatory damages include amounts equal to any Authority’s Reimbursement Costs or other money 1786 Contractor has previously paid to the Authority but that are subsequently Recovered from the Authority 1787 by a trustee in bankruptcy as preferential payments or otherwise and Authority’s Reimbursement Costs 1788 of re-procuring an agreement for services to replace Services if this Agreement is terminated due to 1789 Contractor Default. 1790 ---PAGE BREAK--- Version: 8/30/13 - 49 - 7.5 Authority's Remedies Cumulative 1791 The Authority's rights to seek dispute resolution in accordance with Section 8.17, suspend or terminate 1792 this Agreement in accordance with Section 7.2, to perform under Section 7.3, or to seek other available 1793 remedies under Section 7.4, are not mutually exclusive. Exercise of one remedy is not an election of 1794 remedies but is cumulative with any other remedies under this Agreement. 1795 7.6 Waiver 1796 The Authority’s waiver of any breach or Contractor Default shall not be deemed to be a waiver of any 1797 other breach or Contractor Default including ones with respect to the same obligations under this 1798 Agreement; provided however, that nothing herein abrogates applicable statutes of limitations for any 1799 claims which were or could have been brought. The Authority's decision not to demand damages shall 1800 not be deemed a waiver of any Contractor breach under this Agreement. The Authority's subsequent 1801 acceptance of any damages or other money paid by Contractor shall not be deemed to be a waiver by 1802 the Authority of any pre-existing or concurrent breach or Contractor Default; provided however, that 1803 nothing herein abrogates applicable statutes of limitations for any claims which were or could have 1804 been brought . 1805 Contractor acknowledges that it is solely responsible for providing Services and except as provided 1806 below in this paragraph, by this Agreement irrevocably and unconditionally waives defenses to the 1807 payment and performance of its obligations under this Agreement based upon failure of consideration; 1808 contract of adhesion; impossibility or impracticability of performance; commercial frustration of 1809 purpose; or the existence, non-existence, occurrence or non-occurrence of any foreseen or unforeseen 1810 fact, event, or contingency that may be a basic assumption of Contractor with regard to any provision of 1811 this Agreement; provided, however that Contractor does not waive defenses to impossibility or 1812 impracticability of performance; commercial frustration of purpose; or the existence, non-existence, 1813 occurrence or non-occurrence of any unforeseeable fact, event, or contingency that may arise during 1814 the Term of this Agreement. Contractor does not waive any defenses of Uncontrollable Circumstances at 1815 any time. 1816 1817 ---PAGE BREAK--- Version: 8/30/13 - 50 - ARTICLE 8 1818 OTHER AGREEMENTS OF THE PARTIES 1819 8.1 Relationship of Parties 1820 The Parties intend that Contractor shall perform the Services required by this Agreement as an 1821 independent Contractor engaged by the Authority and not as an officer or employee of the Authority, 1822 nor as a partner of or joint venturer with the Authority. No employee or agent of Contractor shall be or 1823 shall be deemed to be an employee or agent of the Authority. Contractor shall have the exclusive 1824 control over the manner and means of conducting Services, and all Persons performing those Services, 1825 except for prescriptive requirements in this Agreement established by the Authority or Authority’s right 1826 to change the scope of Services in accordance with Section 4.20. Contractor is solely responsible for the 1827 acts and omissions of its officers, employees, subcontractors, and agents, none of whom is deemed an 1828 officer, employee, subcontractor, or agent of the Authority. Neither Contractor nor its officers, 1829 employees, subcontractors, or agents shall obtain any rights to retirement benefits, workers' 1830 compensation benefits, or any other benefits that accrue to the Authority employees. Contractor 1831 expressly waives any claim it may have or acquire to those benefits and shall defend and indemnify the 1832 Authority if any of its officers, employees, subcontractors, or agents make claims for such benefits. 1833 8.2 Compliance with Law 1834 Contractor shall perform, and shall cause any Contractors or subcontractors to perform, all Services in 1835 accordance and compliance with Applicable Law, whether or not referenced specifically in the text of 1836 this Agreement and regardless of whether specified Service obligations may be stated less stringently 1837 than Applicable Law. If any provision of this Agreement is more stringent than Applicable Law, 1838 Contractor must comply with that provision. 1839 Reference in this Agreement to particular provisions or requirements of Applicable Law shall not be 1840 construed to limit Contractor's obligation to comply with all provisions of Applicable Law. They are 1841 deemed to include reference to implementing rules and regulations. They are intended to facilitate 1842 Contractor’s satisfaction of its performance obligations and Authority’s administration and specific 1843 enforcement of this Agreement, and may not be construed to imply lack of obligation to comply with 1844 other provisions or requirements of Applicable Law not referred to or cited in this Agreement. If any 1845 Applicable Law specifically referenced or cited in this Agreement is modified, amended or repealed, that 1846 reference or citation shall be deemed to refer to that amendment or modification, or to any re-codified 1847 or substituted Applicable Law. 1848 8.3 Governing Law 1849 This Agreement shall be governed by, and construed and enforced in, accordance with the Applicable 1850 Laws of the State, without giving effect to the State’s principles of conflicts of laws. 1851 ---PAGE BREAK--- Version: 8/30/13 - 51 - 8.4 Further Assurances 1852 Each Party shall execute and deliver any instruments and to perform any acts as may be necessary or 1853 reasonably requested by the other in order to give full effect to this Agreement. 1854 8.5 Assignment 1855 8.5.1 Assignment by Authority 1856 The Authority may Assign this Agreement individually or jointly to any Member Agency (excluding the 1857 City of El Cerrito), the County of Contra Costa, a successor joint powers authority, or other public entity 1858 succeeding to a majority of the Authority’s service area obligations. In any Assignment, the Authority 1859 Board of Directors shall take such actions as may be necessary to ensure that the Assignee has the legal 1860 authority to accept the Assignment and undertake the Authority’s obligations. 1861 A. Assignment by Member Agency Withdrawal 1862 In the event a Member Agency, other than the City of El Cerrito, seeks to withdraw from the Authority 1863 before the end of the Agreement’s Term, the Member Agency’s withdrawal is conditioned upon its 1864 consent to Assignment of this Agreement. The act of withdrawal shall also operate as the Authority’s 1865 consent to Assignment of its respective rights and obligations under this Agreement to the withdrawing 1866 Member Agency. Any additional terms and conditions of withdrawal as well as the details of assuming 1867 the specific obligations of this Agreement shall be governed by the provisions of the Authority’s Joint 1868 Powers Agreement, as amended, and the decisions of the Authority Board of Directors. 1869 B. Assignment by Dissolution 1870 In the event the Authority seeks to dissolve before the end of the Agreement’s Term, such dissolution is 1871 conditioned upon the agency(ies) or successor joint power authority’s individual or collective 1872 acceptance of Assignment of this Agreement as well as the respective obligations of the Authority. The 1873 Assignee’(s) individual or collective consent to Assignment shall effectuate such dissolution of the 1874 Authority. The Authority Board of Directors shall take such actions as may be necessary to ensure its 1875 obligations hereunder are properly assumed by the Assignee Member Agencies. 1876 8.5.2 Assignment by Contractor 1877 A. Permitted Assignments 1878 Contractor shall have the right to Assign this Agreement to any other company which is owned and 1879 controlled by Republic Services, Inc., provided that: such company is qualified to do business in 1880 California, and assumes in writing all of Contractor’s obligations under this Agreement prior to, or 1881 concurrently with, such Assignment; and, (ii) the corporate guaranty described in Section 8.20 remains 1882 in full force and effect and that such Assignment shall have no adverse impact on the Rates charged or 1883 quality services provided under this Agreement. Contractor shall not otherwise Assign its rights nor 1884 delegate or otherwise transfer its obligations under this Agreement to any other Person without the 1885 prior written consent of the Authority, provided consistent with the requirements of this Section 8.5.2. 1886 ---PAGE BREAK--- Version: 8/30/13 - 52 - Any such assignment made without the written consent of Authority shall be void and the attempted 1887 assignment shall constitute a breach of this Agreement. 1888 B. Assignment Defined 1889 For the purpose of this section when used in reference to Contractor, “Assignment” shall include, but 1890 not be limited to: a sale, exchange or other transfer of substantially all of Contractor’s assets 1891 dedicated to Service under this Agreement to a third party; (ii) a sale, change or other transfer of 1892 outstanding common stock of Contractor to a third party provided said sale, exchange or transfer may 1893 result in a change of control of Contractor; (iii) any dissolution, organization, consolidation, merger, re- 1894 capitalization, stock issuance or reissuance, voting trust, pooling agreement, escrow arrangement, 1895 liquidation or other transaction to which results in a change of Ownership or control of Contractor; (iv) 1896 any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for the 1897 benefit of creditors, writ of attachment for an execution being levied against this agreement, 1898 appointment of a receiver taking possession of Contractor’s property, or transfer occurring in the event 1899 of a probate proceeding; and, any combination of the foregoing (whether or not in related or 1900 contemporaneous transactions) which has the effect of any such transfer or change of Ownership, or 1901 change of control of Contractor. 1902 Contractor acknowledges that this Agreement involves rendering a vital service to the Authority’s 1903 residents and businesses, and that the Authority has selected Contractor to perform the Services 1904 specified Herein based on: effective and responsible fashion, at all times in keeping with applicable 1905 environmental laws, regulations, and best management practices, and (ii) Contractor’s obligations to the 1906 Authority under this Agreement. The Authority has relied on each of these factors, among others, in 1907 choosing Contractor to perform the Services to be rendered by Contractor under this Agreement. 1908 C. Contractor Request for Assignment 1909 If Contractor requests the Authority’s consideration of and consent to an Assignment, the Authority may 1910 reasonably deny or approve such requests. No request by Contractor for consent to any Assignment 1911 need be considered by Authority unless and until Contractor has met the following requirements: 1912 i. Contractor shall pay Authority its reasonable expenses for attorney’s fees and 1913 investigation costs necessary to investigate the suitability of any proposed Assignee, and to review and 1914 finalize any documentation required as a condition for approving any such Assignment. An initial, 1915 retainer deposit payment to reimburse such costs shall be made in the amount of one hundred 1916 thousand dollars ($100,000) to the Authority by Contractor or the proposed assignee along with 1917 Contractor’s formal request for the Authority’s consideration of an Assignment. Authority shall draw 1918 against the retainer for its actual reasonable costs of the Assignment review. In the event such costs 1919 exceed the deposit amount, Contractor shall make the additional payment, beyond the initial deposit 1920 amount, upon approval of the assignment. In the event that the actual costs of the review are less than 1921 the retainer deposit amount, such unused portion of the retainer shall be returned upon the conclusion 1922 of the review of the Assignment. 1923 ---PAGE BREAK--- Version: 8/30/13 - 53 - ii. Contractor shall furnish Authority with audited financial statements of the proposed 1924 Assignee’s operations for the Immediately preceding three operating years. 1925 iii. Contractor shall furnish Authority with satisfactory proof: that the proposed Assignee 1926 has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the 1927 sale of operations conducted by Contractor under this Agreement; (ii) that in the last five years, the 1928 proposed Assignee has not suffered any significant citations or other censure from any federal, State, or 1929 local agency having jurisdiction over its Solid Waste management operations due to any significant 1930 failure to comply with State, federal, or local Environmental Laws and that the Assignee has provided 1931 Authority with a complete list of such citations and censures; (iii) that the proposed Assignee has at all 1932 times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the 1933 proposed Assignee conducts its Solid Waste management practices in accordance with sound Solid 1934 Waste management practices in full compliance with all federal, State, and local laws regulating the 1935 collection and Disposal of Solid Waste including Hazardous Materials; and, of any other information 1936 required by Authority to ensure the proposed Assignee can fulfill the terms of this Agreement in a 1937 timely, safe, and effective manner. 1938 Under no circumstances shall Authority be obligated to consider any proposed Assignment if Contractor 1939 is in default at any time during the period of consideration. 1940 8.6 Binding on Successors 1941 The provisions of this Agreement shall inure to the benefit of and be binding on the successors and 1942 permitted Assigns of the Parties. 1943 8.7 Parties in Interest 1944 Nothing in this Agreement, whether expressed or implied, is intended to confer any rights on any 1945 Persons other than the Parties to it and their representatives, successors and permitted Assigns. 1946 8.8 Services Performed At Contractor’s Sole Expense 1947 Contractor shall perform Services solely for the compensation expressly provided for Herein. 1948 8.9 Notices and Communication 1949 Parties must present and express all reports, demands, requests, directions, selections, option exercises, 1950 orders, requests, proposals, reviews, comments, acknowledgments, approvals, consents, waivers, 1951 certifications and other communications made to each other under this Agreement in writing. 1952 Parties must provide Notices at the address provided in this Section below, in any of the following 1953 manners: 1954 Personal delivery to a representative of the Parties, with signed receipt, 1955 ---PAGE BREAK--- Version: 8/30/13 - 54 - Deposit in the United States mail, first class postage prepaid (certified mail, return receipt 1956 requested), or 1957 Deposit with a commercial delivery service providing delivery verification. 1958 If to Authority: West Contra Costa Integrated Waste Management Authority 1959 Executive Director 1960 1 Alvarado Square 1961 San Pablo, CA 94806 1962 1963 With Copy to: West Contra Costa IWMA Counsel 1964 Meyers Nave 1965 555 12th Street, Suite 1500 1966 Oakland, CA 94607 1967 1968 If to Contractor: Area President 1969 Republic Services, Inc. 1970 3260 Blume Drive, 2nd Floor 1971 Richmond, CA 94806 1972 1973 With a copy to: Timothy Benter 1974 Vice President & Deputy General Counsel 1975 Republic Services, Inc. 1976 18500 North Allied Way 1977 Phoenix, AZ 85054 1978 1979 With an additional copy to: 1980 Scott W. Gordon 1981 Law Offices of Scott W. Gordon, APC 1982 1990 North Calif. Blvd., Suite 620 1983 Walnut Creek, CA 94596 1984 1985 Parties may change their address upon written Notice to the other Party. 1986 8.10 Authority Contract Manager 1987 The Authority has designated staff, the Authority Contract Manager, to be responsible for the 1988 monitoring and administration of this Agreement. Contractor shall meet and confer with the Authority 1989 Contract Manager to resolve differences of interpretation and implement and execute the requirements 1990 of this Agreement in an efficient, effective, manner that is consistent with the stated objectives of this 1991 Agreement. 1992 From time to time the Authority Contract Manager may designate other agents of the Authority or 1993 Franchise Agencies to work with Contractor on specific matters. In such cases, those individuals should 1994 be considered designates of the Authority Contract Manager for those matters to which they have been 1995 engaged. Such designates shall be afforded all of the rights and access granted thereto. In the event of a 1996 ---PAGE BREAK--- Version: 8/30/13 - 55 - dispute between the Authority Contract Manager’s designate and Contractor, the Authority Contract 1997 Manager’s determination shall be conclusive. 1998 In the event of dispute between the Authority Contract Manager and the Contractor regarding the 1999 interpretation of or the performance of Services under this Agreement, the Authority Contract 2000 Manager’s determination shall be conclusive except where such determination results in a material 2001 impact to the Contractor’s revenue and/or cost of operations. In the event of a dispute between the 2002 Authority Contract Manager and the Contractor results in such material impact to the Contractor, 2003 Contractor may appeal the determination of the Authority Contract Manager to the Authority Board of 2004 Directors, whose determination shall be conclusive. For the purposes of this section, “material impact” 2005 is an amount equal to or greater than thirty thousand dollars ($30,000). 2006 8.11 Duty of Contractor Not To Discriminate 2007 In the performance of all work and Services under this Agreement, Contractor shall not discriminate 2008 against any Person on the basis of that Person's race, color, religion, national origin, ancestry, age, 2009 physical handicap, medical condition, religion, marital status, sex or sexual orientation. Contractor shall 2010 comply with all Applicable Law regarding nondiscrimination, including those prohibiting discrimination 2011 in employment. 2012 8.12 Force Majeure 2013 Neither Party is deemed in breach or default of its duties, obligations (other than a payment obligation 2014 at the time due and owing), responsibilities or commitments under this Agreement to the extent that 2015 the breach or default is due to an Uncontrollable Circumstance, provided the Party exerted Reasonable 2016 Business Efforts to prevent the occurrence and mitigate the effects of the Uncontrollable Circumstance. 2017 The Party experiencing an Uncontrollable Circumstance and relying thereon shall give Immediate Notice 2018 thereof to the other Party, including describing performance under this Agreement for which it seeks to 2019 be excused; the expected duration of the Uncontrollable Circumstance; the extent Services may be 2020 curtailed; any requests or suggestions to mitigate the adverse effects of the Uncontrollable 2021 Circumstance; or any consequent adjustment of Rates in accordance with Section 5. 2022 Notwithstanding that Contractor's failure to timely and fully provide Services due to Uncontrollable 2023 Circumstances does not constitute a Contractor Default, following the continuance of the failure for 2024 ninety six (96) hours, Authority may at its sole discretion temporarily secure alternative services limited 2025 to the duration of the Force Majeure event. Following the continuance of that failure for thirty (30) 2026 Calendar Days, the Authority and Contractor shall meet and confer in good faith to determine 2027 alternative means to provide services. 2028 8.13 Maintenance of Records 2029 Contractor shall maintain Records at each of the Approved Processing Facilities and Landfill or elsewhere 2030 at the Contractor’s offices located within the County. 2031 ---PAGE BREAK--- Version: 8/30/13 - 56 - In order to determine the reasonableness of proposed changes in Service requested by Authority or 2032 Contractor, Contractor must maintain accurate, detailed financial and operational information in a 2033 consistent format and to make that information reasonably available to the Authority in a timely 2034 fashion. This Section is intended to effectuate these requirements. Contractor shall maintain accurate 2035 and complete accounting Records containing the underlying financial and operating data relating to and 2036 showing the basis for computation of all costs associated with providing Services. The accounting 2037 Records shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP), which 2038 shall be consistently applied. The Parties acknowledge that the Contactor’s accounting procedures do 2039 not produce accounting Records that separate the financial and operational data related to specific 2040 services provided to the Authority, but rather the accounting Records are consolidated financial and 2041 operational data for all Services provided by Contractor or at the Approved Processing Facilities. 2042 Contractor shall retain all Records required to be maintained by this Agreement at least throughout the 2043 Term. 2044 Contractor shall retrieve Records specifically directed to be retained in accordance with this Agreement 2045 and make them available to the Authority within fifteen (15) Calendar Days of Authority Contract 2046 Manager’s direction. 2047 Contractor shall retrieve Records that are material, in the sole opinion of the Authority Contract 2048 Manager, to determining the cost of compliance with changes in governmental fees or regulations; 2049 verifying payment of governmental fees or taxes; determining cost impact related to modifications to 2050 scope of Services or new waste management programs or economic incentives; or determining an 2051 adjustment to the Disposal Rate as provided for in Section 5, and make them available to the Authority 2052 Contract Manager within fifteen (15) Calendar Days of the Authority Contract Manager’s direction. If 2053 Contractor is not required to maintain those Records under this Agreement, then the Authority Contract 2054 Manager and Contractor shall meet and confer in good faith to reach agreement on reasonable 2055 assumptions that are necessary to make determinations at issue. 2056 8.14 Right to Inspect Records 2057 Upon no less than one Working Day’s notice and without interference from Contractor’s operations, 2058 the Authority, its auditors and other agents selected by the Authority, shall have the right, at its sole 2059 cost, during regular business hours as described in Section 4.6, to conduct on-site inspections of Records 2060 and to make and retain copies of any Records that are reasonably necessary to: determine the cost 2061 of compliance with changes in governmental fees or regulations (in accordance with Section 2062 verify payment of governmental fees or taxes (in accordance with Section determine cost of 2063 modifications to scope of Services (in accordance with Section 4.20); or determine cost of new 2064 programs or economic incentives (in accordance with Section 4.20). Contractor shall cooperate with the 2065 Authority Contract Manager, its auditors and other agents selected by the Authority, and shall make 2066 those Records available to the Authority Contract Manager, and Contractor shall provide the Authority 2067 Contract Manager copies of those Records (which the Authority may retain) at the Authority Contract 2068 Manager’s request; provided however that notwithstanding the foregoing, Contractor shall not be 2069 required to provide to Authority any Records containing or consisting of: 2070 ---PAGE BREAK--- Version: 8/30/13 - 57 - i) Trade secret confidential business information or documents (e.g. customer lists) with 2071 respect to any non-Authority users of the Approved Facilities or Landfill 2072 ii) Cost of service information which is not otherwise provided for in this Agreement 2073 iii) Proprietary processes, patents, or other intellectual property 2074 If the Authority Contract Manager so reasonably requests, Contractor shall make specified personnel 2075 available to assist the Authority Contract Manager in accessing Records. 2076 8.15 Compilation of Information for State Law Purposes 2077 Contractor shall compile information on amounts of Solid Waste delivered to the Landfill and Organic 2078 Materials, Recyclable Materials, Dry Materials, and C&D delivered to Approved Processing Facilities and 2079 the Landfill and other information, which the Authority may reasonably request, in order to meet its 2080 obligations under the Act. 2081 8.16 Right to Demand Assurances of Performance 2082 If Contractor: 2083 Is the subject of any labor unrest including work stoppage or slowdown, sick-out, picketing or 2084 other concerted job action that affects Contractor’s performance under this Agreement; 2085 (ii) Appears in the judgment of the Authority to be unable to regularly pay its bills as they become 2086 due; or 2087 (iii) Is the subject of a civil or criminal proceeding brought by a federal, State, regional, or local 2088 agency for Violation of an Applicable Law with respect to Services; 2089 Such that the Authority reasonably believes such event has placed Contractor's ability to perform 2090 under this Agreement in substantial jeopardy, or 2091 (iv) If Authority disagrees with Contractor’s estimate of Landfill capacity required to meet 2092 Contractor’s warranty in accordance with subsection J of Section 9.2 or of remaining capacity, 2093 considering Contractor’s Disposal obligations to both Authority and other Persons, as contained in the 2094 Quarterly Report or otherwise, then following dispute resolution in accordance with Section 8.17 that 2095 concludes either of Contractor’s estimates is erroneous, at its option and in addition to all other 2096 remedies it may have, the Authority may demand from Contractor written assurances of timely and 2097 proper performance of this Agreement. Assurances include reduction or elimination of deductibles or 2098 self-insured retention with respect to insurance or procuring a bond or letter of credit guarantying or 2099 in size sufficient to cover payment of losses and related investigations, claim administration and 2100 defense expenses. If Contractor fails or refuses to provide reasonable assurances by the date required 2101 by the Authority no less than fifteen (15) Calendar Days after Notice, that failure or refusal shall 2102 constitute a Contractor Default in accordance with Section 7.1.2. 2103 ---PAGE BREAK--- Version: 8/30/13 - 58 - 8.17 Dispute Resolution 2104 8.17.1 Informal Resolution 2105 Should a dispute arise with respect to the performance and obligations of the Parties hereunder, at any 2106 time during the term of this Agreement, the provisions of Section 8.17 shall apply. Either Party shall give 2107 the other written notice of such dispute. Such notice shall specify a date and location for the Parties to 2108 meet and confer in good faith to resolve any dispute that may arise in a cooperative and mutually 2109 satisfactory manner. The Parties shall attempt to resolve their disputes informally to the maximum 2110 extent possible. 2111 8.17.2 Mediation 2112 In the event the Parties cannot resolve such dispute within thirty (30) Days of such notice, either Party 2113 may propose the appointment of a mediator for advice and non-binding mediation, and the other Party 2114 shall attend such mediation. If the mediator is unable, within thirty (30) Days thereafter, to reach a 2115 determination as to the matter in dispute in a manner acceptable to the Parties hereto, then either 2116 Party may refer the matter to a Court of competent jurisdiction. 2117 8.17.3 Arbitration Valuation Items 2118 For the purposes of this Agreement, disputes over “Arbitration Valuation Items” means monetary 2119 disputes the value of which are less than five hundred thousand dollars ($500,000) alleged to be due or 2120 owed by either Party. If mediation is unsuccessful, disputes concerning Arbitration Valuation Items shall 2121 be referred to binding arbitration. 2122 8.17.4 Binding Arbitration 2123 Binding arbitration proceedings shall be in accordance with California Code of Civil Procedure Section 2124 1280 et. seq., pursuant to the AAA Commercial Arbitration Rules or the then-current JAMS Streamlined 2125 Arbitration Rules, and the terms of this Section. The provisions of the California Discovery Act shall 2126 apply. The Parties shall determine by mutual agreement whether the AAA or JAMS proceedings are to 2127 be used. Provisions of the California Discovery Act shall apply to the arbitration proceedings. In the 2128 event of any inconsistency, the terms of this Section shall control. The arbitration shall be administered 2129 by JAMS and conducted in the County of Contra Costa. If the proceeding is pursuant to AAA Commercial 2130 Rules, the arbitrator selection process shall apply. If the JAMS rules are employed, and the Parties are 2131 unable to select an arbitrator by mutual agreement, JAMS shall select a qualified arbitrator from its 2132 panel. If JAMS is unwilling or unable to serve as the provider of arbitration or enforce any 2133 provision of this arbitration clause, the Parties may mutually designate another arbitration organization 2134 with similar procedures to serve as the provider of arbitration. If the Parties cannot agree on the 2135 arbitration organization, the Presiding Judge of the Contra Costa County Superior Court shall designate 2136 such an organization upon the petition of either Party. 2137 ---PAGE BREAK--- Version: 8/30/13 - 59 - The arbitrator shall be independent of, and unaffiliated with, each Party and shall not 2138 ever have been an employee of either Party, under contract with either Party in the past five years or 2139 have acted as an arbitrator for such Party within the past five years. 2140 Within twenty (20) days after initiation of the arbitration, if not previously done so 2141 under the terms of this Agreement, the Parties shall simultaneously submit to each other and the 2142 arbitrator their respective best or final offer for the item subject to the valuation dispute, with such 2143 supporting information as is reasonably necessary to support such suggested value. If the two 2144 valuations so submitted differ by less than or equal to ten percent (10%) of the higher of the two the 2145 average of the two shall become the agreed-upon and binding amount for purposes of this 2146 Agreement and the arbitration shall not be continued. If the two valuations differ by more than ten 2147 percent (10%) of the higher of the two then the arbitrator shall make a determination of the 2148 relevant value and submit such determination to both Parties. This third valuation will then be averaged 2149 with the closer of the two previous valuations and the result shall be the relevant value. In no event 2150 shall the arbitrator award, on a quantum meruit or other basis, an amount that is greater than any 2151 amount set forth in this Agreement. The final arbitrated value shall be binding on the Parties. 2152 The arbitrator shall have the authority and power to award costs, but not including 2153 attorneys’ fees, to the prevailing Party. The American Rule shall apply with respect to attorneys fees, 2154 with each Party to bear its own attorneys fees. 2155 By agreeing to binding arbitration for Arbitration Valuation Items, the Parties irrevocably 2156 and voluntarily waive any right they may have to a trial by jury to the extent permitted by law. 2157 Acknowledgement of waiver of rights to trial by jury if proceeding with binding arbitration pursuant to 2158 Section 8.17.4 of this Agreement: 2159 2160 2161 2162 2163 Authority [Contractor] 2164 8.17.5 Pendency of Dispute 2165 During the pendency of any dispute under Section 8.17, all applicable time periods directly related to 2166 the dispute shall be tolled until its resolution; provided, however, that no tolling shall apply to any 2167 matters other than those directly related to the dispute and such tolling shall not entitle a Party to 2168 breach, default, or fail to perform its obligations under this Agreement. In addition, the pendency of any 2169 dispute shall not stay or affect the Authority’s remedies under this Agreement. 2170 ---PAGE BREAK--- Version: 8/30/13 - 60 - 8.18 Criminal Activity of Contractor 2171 8.18.1. Notice of Convictions or Pleas 2172 The Contractor shall Immediately Notify the Authority upon the occurrence of any Convictions or Pleas 2173 with respect to its management, employees, or representatives and use Reasonable Business Efforts to 2174 Immediately Notify the Authority with respect to Contractor or any of its representatives. 2175 8.18.2 Contractor Cure 2176 Upon the occurrence of any Convictions or Pleas, the Contractor shall do or cause to be done both of the 2177 following: 2178 As soon as permitted under Applicable Law, terminate from employment or remove from office 2179 the offending employee who is an individual, or, with respect to a employee that is the Contractor or 2180 an Affiliate, the individual or individuals responsible for the Criminal Activity; and 2181 (ii) Immediately eliminate the participation by that employee who is an individual or, with respect 2182 to an employee that is the Contractor or Affiliate of the individual or individuals responsible for the 2183 Criminal Activity, or in any position of influence. 2184 Should Contractor be unable to terminate the offending employee, said individual(s) shall be replaced in 2185 their capacity as relative to this Agreement. 2186 8.18.3 Authority Remedies 2187 Subject to Section 7.1.1, the Authority, at its sole discretion, may terminate the Agreement upon thirty 2188 (30) Calendar Days Notice to the Contractor, or may impose those other sanctions (which may include 2189 financial sanctions, temporary suspensions or any other condition deemed appropriate short of 2190 termination) as it shall deem proper, if the following events are continuing at the end of those thirty (30) 2191 Calendar Days: 2192 the Contractor or any Affiliate fails to comply with its obligations under Section 7.1.1; or, 2193 (ii) Criminal Activity with respect to this Agreement. 2194 (iii) Criminal Activity involving managers and officers directly responsible for the performance of 2195 services under this Agreement. 2196 Contractor must be given the opportunity to present to Authority Contract Manager evidence in 2197 mitigation during the preceding Notice period and Authority must consider that evidence. 2198 ---PAGE BREAK--- Version: 8/30/13 - 61 - 8.18.4 Prohibited Transfers 2199 The Contractor shall not hire or transfer from any Affiliate any employee, officer or director of an 2200 Affiliate who is the subject of any Criminal Activity as an employee under this Agreement and shall not 2201 allow its Affiliates to do so. 2202 8.19 Liquidated Damages 2203 8.19.1 General 2204 The Parties acknowledge that Authority incurred considerable time and expense procuring this 2205 Agreement in order to secure an improved level of service quality and increased Authority satisfaction. 2206 Therefore, consistent and reliable Services are of utmost importance to the Authority, Franchise 2207 Agencies, and Customers. Authority has considered and relied on Contractor's representations as to its 2208 quality of service commitment in entering into this Agreement, and Contractor's breach of its Service 2209 obligations referenced in this Section above represents a loss to the Authority. The Parties further 2210 recognize that quantified standards of performance are necessary and appropriate to ensure quality, 2211 consistent and reliable Service, and if Contractor fails to meet Service obligations, Authority shall suffer 2212 damages (including inconvenience, anxiety, frustration, potential political pressure, criticism and 2213 complaint by Generators, lost time for the Authority and the Board of Directors, deprivation of the 2214 benefits of the Agreement and loss of bargain) in subjective ways and in varying degrees of intensity 2215 that are incapable of measurement in precise monetary terms, and that it is and shall be impracticable 2216 and extremely difficult to ascertain and determine the value thereof. In addition, in event of breach or 2217 Contractor Default, urgency of protecting public health and safety may necessitate that Authority enter 2218 into emergency or short term arrangements for Services without competitive procurement at prices 2219 substantially greater than Hereunder, and the monetary loss resulting there from is impossible to 2220 precisely quantify. Lastly, termination of this Agreement for Contractor Default and other remedies 2221 provided hereunder are, at best, a means of future correction and not remedies that make the Authority 2222 whole for past breaches and Contractor Defaults. Therefore, the Parties agree that the liquidated 2223 damages listed in Exhibit 8.19 represent a reasonable estimate of the amount of damages, considering 2224 all of the circumstances existing on the date of this Agreement, including the relationship of the sums to 2225 the range of harm to Authority that reasonably could be anticipated and anticipation that proof of 2226 actual damages would be costly or inconvenient. In signing this Agreement, each Party specifically 2227 confirms the accuracy of the statements made above and the fact that each Party had ample 2228 opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision 2229 at the time that this Agreement was made. 2230 8.19.2 Service Performance Standards; Liquidated Damages for Failure to Meet 2231 Standards 2232 Contractor shall pay (as liquidated damages and not as a penalty) the amounts set forth in Exhibit 8.19. 2233 The Authority Contract Manager may determine the occurrence of events giving rise to liquidated 2234 damages through the investigation or observation or investigation of complaints by Customers or any 2235 other party. These performance standards shall consider both effort number of meetings with 2236 Customers to offer new programs) and results Tons of material Recycled). In addition, these 2237 liquidated damages shall be in addition to any other remedy the Authority and/or Franchise Agencies 2238 ---PAGE BREAK--- Version: 8/30/13 - 62 - may have, which may include, but are not necessarily limited to: a determination of breach of contract, 2239 termination of the agreement, or litigation. 2240 Prior to assessing liquidated damages, Authority Contract Manager shall give Contractor Notice of its 2241 intention to do so. The Notice shall include a brief description of the incident(s) and non-performance. 2242 For events where there is a cure opportunity noted in Exhibit 8.19, Contractor shall have the 2243 opportunity to cure such incident(s) and/or non-performance, consistent with the schedules defined 2244 therein, and, if Contractor does so, no liquidated damages shall be assessed. The Authority Contract 2245 Manager may review (and make copies at its own expense) all information in the possession of 2246 Contractor relating to incident(s) and non-performance. The Contractor may, within ten (10) Calendar 2247 Days after receiving the Notice, request a meeting with Authority Contract Manager. Upon Contractor’s 2248 request, the Authority Contract Manager shall present evidence of non-performance. Such evidence 2249 shall be provided in writing and through testimony of its employees and others relevant to the 2250 incident(s) and non-performance. Authority Contract Manager shall provide Contractor with a written 2251 explanation of his or her determination on each incident(s) and non-performance prior to authorizing 2252 the assessment of liquidated damages. Subject to the limits of “material impact” described in Section 2253 8.10, with respect to the cumulative amount of any liquidated damages assessed during the preceding 2254 twelve month period the decision of Authority Contract Manager shall be final and Contractor shall not 2255 be subject to, or required to exhaust, any further administrative remedies. 2256 8.19.3 Amount 2257 Authority may assess liquidated damages for each Calendar Day or event, as appropriate, that 2258 Contractor is determined to be liable in accordance with this Agreement in the amounts specified in 2259 Exhibit 8.19, subject to a rule of reason regarding when Contractor should have known or been notified 2260 by the Authority Contract Manager, as appropriate. 2261 8.19.4 Payment of Liquidated Damages 2262 Contractor shall pay any liquidated damages assessed by Authority Contract Manager within ten (10) 2263 Calendar Days after they are assessed. If they are not paid within that period, Authority may proceed 2264 against the Performance Surety. 2265 8.19.5 Administrative Nature of Liquidated Damages 2266 The assessment of liquidated damages as described in this Section 8.19 shall be an administrative 2267 function within the sole discretion of the Authority Contract Manager and shall not be subject to appeal. 2268 In the event that the liquidated damages assessed by the Authority Contract Manager exceed the 2269 monetary limits of the Authority Contract Manager’s administrative discretion, as described in Section 2270 8.10, Contractor may appeal the Authority Contract Manager’s decision to the Authority’s Board of 2271 Directors and their determination shall be conclusive. 2272 8.20 Guaranty of Contractor's Performance 2273 The Guarantor has agreed to guaranty Contractor's performance of this Agreement including 2274 Contractor’s Indemnification obligations Hereunder pursuant to a Guaranty Agreement in substantially 2275 ---PAGE BREAK--- Version: 8/30/13 - 63 - the form attached as Exhibit 8.20. The Guaranty Agreement is being provided concurrently with 2276 Contractor's execution of this Agreement. 2277 8.21 Exercise of Discretionary Actions 2278 Parties shall exercise any approval, disapproval, consent, option, discretion, election, opinion, judgment, 2279 or choice under this Agreement, make a requirement under this Agreement or interpret this Agreement 2280 (“Discretionary Action”) reasonably and in writing. Any mediator or court must find the Party’s exercise 2281 to be reasonable. Recognizing the essential public health and safety protections this Agreement serves, 2282 where this Agreement specifically provides that the exercise of any Discretionary Action is in each 2283 respective Party's independent, sole, exclusive, or absolute discretion, control, or judgment, the other 2284 Party shall not question or challenge the other Party’s exercise thereof. Parties shall, nevertheless, 2285 exercise their rights and remedies in good faith in accordance with Applicable Law. 2286 Unless otherwise provided in this Agreement, Authority’s Discretionary Actions shall be deemed 2287 disapproved or denied, as the case may be, if Authority has not otherwise taken that Discretionary 2288 Action within three weeks of Contractor’s request. 2289 8.22 Jurisdiction, Venue 2290 To the extent permitted by Applicable Law and subject to choice of venue laws, venue is appropriate in 2291 courts sitting in Contra Costa County, California. For cases adjudicated in Federal Court, the appropriate 2292 venue is the United States District Court for the Northern District of California. 2293 The site of any other hearing or action, whether mediation, arbitration, or non-judicial, of whatever 2294 nature or kind regarding this Agreement, shall be conducted in the County of Contra Costa, California, or 2295 as otherwise mutually agreed upon by the Parties. 2296 8.23 Costs and Expenses 2297 Each Party, regardless of the decision of the court, shall pay their own expenses incurred in the process 2298 of adjudication. 2299 2300 8.24 Golden Bear Franchise Agreement (pending negotiation) 2301 2302 2303 2304 ---PAGE BREAK--- Version: 8/30/13 - 64 - ARTICLE 9 2305 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR 2306 9.1 Accuracy of Representations 2307 {Note: The redline/strikeout text below is unresolved at the time of this posting though the parties 2308 continue to negotiate. Republic and Richmond wish to include a reference to the Richmond/Golden Bear 2309 agreement. The Authority and other member agencies wish to remain silent on that agreement.} 2310 The Contractor has made, and the Authority is relying on the accuracy of, certain representations in its 2311 response to the Authority’s requirements regarding its: corporate authorization to enter the Agreement; 2312 ability to do so without causing a breach of any agreement or Violation of any Applicable Law or judicial 2313 decision subject to the qualification below; current or pending litigation; regulatory compliance with 2314 regard to the Landfill and Approved Processing Facilities; and, ability to provide the proposed Services in 2315 accordance with the permitted capacity of the Landfill and Approved Processing Facilities. 2316 With respect to ability to do so without causing a breach of any agreement or Violation of any 2317 Applicable Law or judicial decision, the entry into this Agreement is not a breach of the Golden Bear 2318 Transfer Services, Inc. exclusive franchise agreement with Member Agency City of Richmond, and vice 2319 versa, so long as the Authority continues to direct all Solid Waste to the Golden Bear Transfer Station as 2320 an Approved Processing Facility, and basing its representation on that ground, Contractor so represents. 2321 Authority agrees that it shall direct all Solid Waste to the Golden Bear Transfer Facility in Richmond, 2322 California as the Approved Transfer Facility. 2323 The Contractor understands that the Authority and Franchise Agencies are relying upon the accuracy of 2324 the Contractor’s representations with regard to the legal and regulatory matters described above as well 2325 as with regard to the Contractor’s operational plans and costs for implementing the Services described 2326 Herein. Contractor Subject to the provisions above regarding the exclusive franchise agreement 2327 between Golden Bear Transfer Services, Inc. and Member Agency City of Richmond and Authority’s 2328 continued direction of all Solid Waste to the Golden Bear Transfer Facility, Contractor would be in 2329 default of this Agreement, pursuant to Section 7.1.3, in the event that the Authority or Contractor were 2330 to determine that any material representation made as an inducement to or explanation of the costs 2331 incurred by Contractor under this Agreement was inaccurate. 2332 9.2 Representations and Warranties Regarding Negotiation of Agreement 2333 This Agreement contains all material and required terms to be effective and there shall be no conditions 2334 precedent, conditions subsequent, or other conditions or qualifications required or imposed by the 2335 Authority or any Franchise Agency, including without limitation, any other or different amendments or 2336 modifications to Franchise Agency Collection Franchise Agreements for purposes of that Franchise 2337 Agency’s approval and execution of the Agreement. 2338 A. Status. Contractor is a corporation duly organized, validly existing and in good standing under the 2339 laws of California and is qualified to do business in the State. 2340 ---PAGE BREAK--- Version: 8/30/13 - 65 - B. Authority and Authorization. The Contractor has full legal right, power and authority to execute and 2341 deliver this Agreement and perform its obligations under this Agreement. This Agreement has been 2342 duly executed and delivered by the Contractor and constitutes a legal, valid and binding obligation of 2343 the Contractor enforceable against the Contractor in accordance with its terms. 2344 C. Statements and Information. That portion of the Contractor’s Proposal complied, drafted, made or 2345 otherwise delivered by the Contractor, Subcontractors and Affiliates is correct and complete in all 2346 material respects at the time originally submitted by Contractor to the Authority. 2347 D. No Conflicts. Neither the execution or delivery by the Contractor of this Agreement, the 2348 performance by the Contractor of its Service obligations, nor the fulfillment by the Contractor of the 2349 terms and conditions of this Agreement: conflicts with, violates or results in a breach of any 2350 Applicable Law; or conflicts with, violates or results in a breach of any term or condition of any 2351 judgment, order or decree of any court, administrative agency or other governmental authority. or any 2352 agreement or instrument to which the Contractor or any of its Affiliates is a Party or by which the 2353 Contractor or any of its Affiliates’ properties or assets are bound, or constitutes a default thereunder. 2354 E. No Approvals Required. No approval, authorization, license, permit, order or consent of, or 2355 declaration, registration or filing with any governmental or administrative authority, commission, board, 2356 agency or instrumentality is required for the valid execution and delivery of this Agreement by the 2357 Contractor, except those as have been duly obtained from its Board of Directors. 2358 F. No Litigation. As of the Service Commencement Date, there is no action, suit, proceeding or 2359 investigation, at law or in equity, before or by any court or governmental authority, commission, board, 2360 agency or instrumentality pending or, to the best of the Contractor’s knowledge, threatened, against the 2361 Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, 2362 would materially adversely affect the performance by the Contractor of its obligations under this 2363 Agreement or in connection with the transactions contemplated by this Agreement, or which, in any 2364 way, would adversely affect the validity or enforce ability of this Agreement or any other agreement or 2365 instrument entered into by the Contractor in connection with the transactions contemplated by this 2366 Agreement. 2367 G. Due Diligence. Contractor has made an independent investigation, examination and research 2368 satisfactory to it of the conditions and circumstances surrounding the Agreement and best and proper 2369 method of providing Services (including Service types) and labor, equipment and materials for the 2370 volume of Services to be provided. Contractor agrees that it shall make no claim against the Authority 2371 based on any estimates, statements or interpretations made by any officer, employee, agent or 2372 consultant of the Authority in connection with the procurement of this Agreement which proves to be in 2373 any respect erroneous. 2374 H. Compliance with Applicable Law. Contractor further represents and warrants that it has fully 2375 complied with all Applicable Law, including without limitation law relating to conflicts of interest, in the 2376 course of procuring this Agreement. 2377 ---PAGE BREAK--- Version: 8/30/13 - 66 - I. Ability to Perform. Contractor warrants that it possesses the business, professional and technical 2378 capabilities to provide Services; has secured and maintains in full force and effect Permits; and 2379 possesses the equipment, facility and employee resources required to fully and timely perform Services. 2380 J. Capacity. Contractor warrants that as of the Service Commencement Date it has capacity at the 2381 Landfill and the Approved Processing Facilities to perform the services required under this Agreement 2382 throughout the Term and that it shall maintain that capacity through the Term. 2383 2384 ---PAGE BREAK--- Version: 8/30/13 - 67 - ARTICLE 10 2385 MISCELLANEOUS PROVISIONS 2386 10.1 Exhibits 2387 If any provisions contained in the text of Articles 1 through 10 are inconsistent or conflict with any 2388 Exhibits to this Agreement, then the provisions of the text shall govern. 2389 10.2 Section Headings 2390 Any captions or headings following the Exhibit, Section, subsection, paragraph and Article numbers and 2391 preceding the operative text of this Agreement is for convenience of reference only and do not control 2392 or affect the scope, intent, meaning, construction, interpretation, or effect of this Agreement. 2393 10.3 Interpretation and Construction 2394 10.3.1 Drafting 2395 This Agreement must be interpreted and construed reasonably and neither for nor against either Party, 2396 regardless of the degree to which either Party participated in its drafting. Contractor acknowledges that 2397 it determined to participate in the procurement of this Agreement upon its own choice and initiative 2398 and during the course of that procurement Authority solicited Contractor’s comments, exceptions and 2399 proposals with respect to provisions in the Agreement. The Parties have negotiated this Agreement at 2400 arms length and with advice of their respective attorneys, and no provision Herein is construed against 2401 the Authority solely because it prepared this Agreement in its executed form. 2402 10.3.2 Gender and Plurality 2403 Words of the masculine gender include correlative words of the feminine and neuter genders, and vice 2404 versa. Words importing the singular number mean and include the plural number, and vice versa, 2405 unless the context demands otherwise. 2406 10.3.3 Font 2407 Any underlined, italicized, bold-faced, upper captioned or other font style are for ease of reading and 2408 contract administration only and do not imply relative importance or unimportance of any provision of 2409 this Agreement. 2410 10.3.4 References to Parts 2411 References to Sections and Articles refer to Sections and Articles of this Agreement, unless specified 2412 otherwise. References to Exhibits refer to Exhibits attached to this Agreement. Reference to 2413 “subsections” refers to the subsection contained in the same Section in which the reference occurs, 2414 unless otherwise provided. 2415 ---PAGE BREAK--- Version: 8/30/13 - 68 - 10.3.5 Examples 2416 Examples are for purpose of illustration only. If any example is ambiguous or is inconsistent or conflicts 2417 with the text that it illustrates, the text governs. 2418 10.3.6 Specifics No Limitation on Generalities 2419 The mention of any specific duty or liability imposed upon the Contractor may not be construed as a 2420 limitation or restriction of any general liability or duty imposed upon the Contractor by this Agreement 2421 or Applicable Law. 2422 10.4 Amendment 2423 The Parties may change, modify, supplement, or amend this Agreement only upon written agreement 2424 duly authorized and executed by both Parties. However, wherever reports, forms, or other documents 2425 are attached to this Agreement in substantially the form provided in the Exhibits, the Authority 2426 Representative and Contractor Representative may edit and revise them upon their agreement or 2427 otherwise provided in the related sections of this Agreement, evidenced in writing unless this 2428 Agreement or Applicable Law specifically requires approval of the Authority Board of Directors pursuant 2429 to resolution or otherwise. 2430 10.5 Severability 2431 If any clause, sentence, provision, subsection, Section, or Article of this Agreement or Exhibit to this 2432 Agreement (an Agreement Provision) is ruled unconstitutional, illegal, invalid, non-binding, or 2433 unenforceable by any court of competent jurisdiction, then the Parties shall: 2434 meet and negotiate a substitute for those Agreement Provisions and any related 2435 amendments, deletions, or additions to other provisions of this Agreement, which together effect the 2436 Parties’ original intent to the greatest extent allowable under Applicable Law; and, 2437 If necessary or desirable to accomplish preceding item apply to the court that made that 2438 ruling for a judicial construction of the substituted Agreement Provision and any amendments, 2439 deletions, or additions to this Agreement. Contractor shall pay Authority half of the Direct Costs of 2440 that application within twenty (20) Calendar Days of Authority’s request if Contractor or a third Person 2441 other than the Authority instituted proceedings resulting in the ruling. 2442 The unconstitutionality, illegality, invalidity, non-binding nature, or unenforceability of any Agreement 2443 Provision shall not affect any of the remaining provisions of this Agreement. This Agreement shall be 2444 construed and enforced as if that Agreement Provision did not exist. 2445 10.6 Costs of Enforcing Agreement 2446 Contractor shall pay to the Authority the Authority’s Costs, including attorneys’ fees, reasonably 2447 incurred by or on behalf of the Authority enforcing payment or performance of Contractor’s obligations 2448 under this Agreement if non-payment or non-performance results in a Contractor Default. 2449 ---PAGE BREAK--- Version: 8/30/13 - 1 - 10.7 Authority 2481 Authority warrants that the officers listed below have been duly authorized by the Authority to execute 2482 this Agreement on behalf of the Authority. Contractor warrants that the individuals listed below have 2483 been duly authorized by the Contractor to execute this Agreement on behalf of the Contractor. 2484 The Authority and Member Agencies represent and warrant that the Authority and Member Agency 2485 negotiating team consisting of representatives from the Cities of Richmond, Pinole, Hercules and San 2486 Pablo, and the Authority Executive Director and the County's representative each and collectively have 2487 the full right and authority from the Authority Board, the County Board of Supervisors, or the Member 2488 Agencies’ city councils, as the case may be, to negotiate fully and in good faith a mutually acceptable 2489 Agreement. IF COUNTY DOESN’T LIKE CHANGE THERE HAS TO BE SOME REPRESENTATION THAT THEY 2490 ARE PART OF THIS NEGOTIATION - 2491 10.8 Counterparts 2492 This Agreement may be executed in any number of counterparts, some of which may not bear the 2493 signatures of all Parties to this Agreement. Each counterpart, when so executed and delivered, is 2494 deemed to be an original and all counterparts, taken together, shall constitute one and the same 2495 instrument; provided, however, that in pleading or proving this Agreement, it shall not be necessary to 2496 produce more than one copy (or sets of copies) bearing the signature of the Contractor or Authority. 2497 IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed as of the latter of the 2498 date written below. 2499 West Contra Costa Contractor 2500 Integrated Waste Management Authority 2501 2502 By: By: 2503 Executive Director Area President 2504 Approved as to Form: Approved as to Form: 2505 2506 Attorney Contractor Legal Counsel 2507 2508 Attest: 2509 2510 Authority Clerk 2511 Comment County Boa staff the fu behalf of th Cities, howe acceptable” to specify w facts from t Parties to t Authority & Comment by the Coun Comment ---PAGE BREAK--- Version: 8/30/13 1-1 EXHIBIT 1 2512 DEFINITIONS 2513 For purposes of this Agreement, unless a different meaning is clearly required, the following words and 2514 phrases shall have the following meanings respectively ascribed to them by this Exhibit and shall be 2515 capitalized throughout this Agreement: 2516 “Act” means the California Integrated Waste Management Act of 1989 set forth in PRC Section 40000, 2517 et seq. 2518 “Actions” means all actions including claims, demands, causes of action, suits, mediation, arbitration, 2519 hearings, investigations, inquiries and proceedings, whether legal, judicial, quasi-judicial, governmental 2520 or administrative in nature and whether threatened, brought, instituted or settled. 2521 “Affiliate” means all businesses (including corporations, limited and general partnerships, and sole 2522 proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect 2523 Ownership interests or common management shall be deemed to be “Affiliated with” Contractor and 2524 included within the term “Affiliates” as used Herein. An Affiliate shall include a business in which 2525 Contractor Owns a direct or indirect Ownership interest, a business which has a direct or indirect 2526 Ownership interest in Contractor and/or a business which is also Owned, controlled, or managed by any 2527 business or individual which has a direct or indirect Ownership interest in Contractor. For purposes of 2528 determining whether an indirect Ownership interest exists, the constructive Ownership provisions of 2529 Section 318(a) of the Internal Revenue code of 1986, as in effect on the date of this Agreement, shall 2530 apply; provided, however, the “ten percent shall be substituted for “fifty percent in 2531 Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be 2532 disregarded. For purposes of determining Ownership under this paragraph and constructive or indirect 2533 Ownership under Section 318(a), Ownership interest of less than ten percent (10%) shall be disregarded 2534 and percentage interests shall be determined on the basis of the percentage of voting interest or value 2535 which the Ownership interest represents, whichever is greater. 2536 “Authority Contract Manager” means the Authority’s Executive Director or his/her designee who is 2537 responsible for the administrative management of this Agreement. 2538 “Agreement” means this Agreement between the Authority and Contractor, including all exhibits, 2539 schedules and attachments, which are incorporated in this Agreement by reference, as this Agreement 2540 may be amended and supplemented. 2541 “Alternative Daily Cover (ADC)” means cover material used to cover compacted Solid Wastes in a 2542 landfill, other than Organic Materials and other than at least six inches of earthen material, placed on 2543 the surface of the active face of the refuse fill area at the end of each operating day to control vectors, 2544 fires, odors, blowing litter, and scavenging, as defined in Section 20164 of the California Code of 2545 Regulations as may be amended from time to time. 2546 ---PAGE BREAK--- Version: 8/30/13 1-2 “Applicable Law” means all laws, statutes, rules, regulations, guidelines, Permit conditions, Permits, 2547 Actions, determinations, orders, approvals or requirements of the United States, State, regional or local 2548 government authorities, agencies, boards, commissions, courts or other bodies having applicable 2549 jurisdiction, that from time to time apply to or govern Services or the performance of the Parties' 2550 respective obligations under this Agreement, including any of the foregoing which concern health, 2551 safety, fire, environmental protection, labor relations, mitigation conditions and monitoring plans in 2552 accordance with environmental impact statements, conditional use permits; building codes, zoning, 2553 non-discrimination; and the Transfer or Disposition of Solid Waste, Organic Materials, and Recyclable 2554 Materials, and including but not limited to: 2555 the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (42 U.S.C. 2556 Section 9601 et seq.); 2557 the Resource Conservation and Recovery Act, (42 U.S.C. Section 6901 et seq.); 2558 the Clean Air Act, (42 U.S.C. Section 7401et seq.); and the California Clean Air Act (Health and 2559 Safety Code Sections 39000 et seq.); 2560 the Emergency Planning and Community Right to Know Act, (42 U.S.C. Section 11001 et seq.) 2561 the Occupational Safety and Health Act, (29 U.S.C. Section 651 et seq.), including the Solid 2562 Waste Disposal Facility Criteria promulgated by the U.S. EPA on October 9, 1991 (40 C.F.R., Parts 2563 257 and 258); and the California Occupational Safety and Health Act (California Labor Code, 2564 Division 5, Parts 1-10, Section 6300 et seq.); 2565 the California Hazardous Waste Control Act, (California Health & Safety Code, Section 25100 et 2566 seq.); 2567 California Hazardous Materials Release Response Plan and Inventory Act (California Health & 2568 Safety Code Section 25500 et seq.); 2569 the Carpenter-Presley-Tanner Hazardous Substance Account Act, (California Health & Safety 2570 Code Section 25300 et seq.); 2571 California Underground Storage Tank Act, (California Health & Safety Code, Section 25280 et 2572 seq.); 2573 (10) the Clean Water Act (33 U.S.C. Section 1251 et seq.) and the Porter-Cologne Water Quality 2574 Control Act, (California Water Code Section 13000 et seq.); 2575 (11) the Safe Drinking Water and Toxic Enforcement Act “Proposition 65” , (California Health and 2576 Safety Code Section 25249.5 et seq.); 2577 2578 ---PAGE BREAK--- Version: 8/30/13 1-3 (12) California Public Resources Code Sections 45300-04, 45700, California Health & Safety Code 2579 Sections 40511, 41805.5, and 42311.5, and California Water Code Section 13273); 2580 (13) Title 14 California Code of Regulations; 2581 (14) Title 22 California Code of Regulations; 2582 (15) Title 23 California Code of Regulations, Chapter 15, Sections 2510-2610; and 2583 (16) Title 27 California Code of Regulation. 2584 Any other government required rules, laws, statutes, regulations, guidelines, or policies which are 2585 imposed upon Contractor and not discretionary, governing the provision of the Services outlined within 2586 this Agreement. 2587 “Approved Construction and Demolition Processing Facility” means the West Contra Costa Sanitary 2588 Landfill Organic Materials Processing Facility located at 1 Parr Blvd. in Richmond, California, which was 2589 selected by the Contractor and approved by the Authority as the site for the performance of services 2590 under Section 4.1.6 of this Agreement. Change in facility designation for the performance of such 2591 services shall require written authorization of the Authority Contract Manager. 2592 “Approved Dry Materials Processing Facility” means the Newby Island Resource Recovery Park located 2593 at 1601 Dixon Landing Road in Milpitas California, which was selected by the Contractor and approved 2594 by the Authority as the site for the performance of services under Section 4.1.4 of this Agreement. 2595 Change in facility designation for the performance of such services shall require written authorization of 2596 the Authority Contract Manager. 2597 “Approved Household Hazardous Waste (HHW) Facility” means the West County HHW Collection 2598 Facility at 101 Pittsburg Avenue in North Richmond, California which is used by the Contractor as the site 2599 for accepting and managing household hazardous waste from residents and conditionally exempt small 2600 quantity generators within the Authority’s service area as well as the surrounding unincorporated 2601 communities of Crockett, Kensington, Port Cost and Tormey pursuant to the terms of an agreement 2602 between the Authority, Contractor and the County. 2603 “Approved Organic Materials Processing Facility” means the West Contra Costa Sanitary Landfill 2604 Organic Materials Processing Facility located at 1 Parr Blvd, Richmond, California, which was selected by 2605 the Contractor and approved by the Authority as the site for the performance of services under Section 2606 4.1.5 of this Agreement. Change in facility designation for the performance of such services shall require 2607 written authorization of the Authority Contract Manager. 2608 “Approved Processing Facility(ies)” means the Approved Organic Materials Processing Facility, 2609 Approved Construction and Demolition Processing Facility, Approved Transfer Station, and/or the 2610 Approved Recyclable Materials Processing Facility. 2611 “Approved Recyclable Materials Processing Facility” means West County Resource Recovery Facility 2612 located at 101 Pittsburg Ave, Richmond, California or the Newby Island Resource Recovery Park located 2613 ---PAGE BREAK--- Version: 8/30/13 1-4 at 1601 Dixon Landing Road in Milpitas, CA which were selected by the Contractor and approved by the 2614 Authority as the locations for the performance of services under Section 4.1.3 of this Agreement. 2615 Change in facility designation for the performance of such services shall require written authorization of 2616 the Authority Contract Manager. 2617 “Approved Transfer Station” means the Golden Bear Transfer Station owned by the Contractor and 2618 located 1 Parr Blvd, in Richmond California, which was selected by the Contractor and approved by the 2619 Authority as the site for the performance of services under Section 4.1.1 of this Agreement. 2620 “Assign or Assignment” means: 2621 selling, exchanging or otherwise transferring effective control of management of the Contractor 2622 (through sale, exchange or other transfer of outstanding stock or otherwise); 2623 (ii) issuing new stock or selling, exchanging or otherwise transferring 20% or more of the then 2624 outstanding common stock of the Contractor; 2625 (iii) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re- 2626 issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction 2627 which results in a change of Ownership or control of Contractor; 2628 (iv) any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for 2629 the benefit of creditors, writ of attachment of an execution, being levied against Contractor, 2630 appointment of a receiver taking possession of any of Contractor’s tangible or intangible 2631 property; 2632 any combination of the foregoing (whether or not in related or contemporaneous transactions) 2633 which has the effect of any that transfer or change of Ownership or control of Contractor. 2634 “Authority” means the West Contra Costa Integrated Waste Management Authority, its Board of 2635 Directors, staff, and/or agents. 2636 “Calendar Year” means a successive period of twelve (12) months commencing on January 1 and ending 2637 on December 31. 2638 “CCR” means California Code of Regulations. 2639 “Change in Law” means the occurrence of any event or change in Applicable Law as follows: 2640 the adoption, promulgation, repeal, modification, amendment or other change in Applicable Law 2641 or change in judicial or administrative interpretation thereof occurring after the Service 2642 Commencement Date, other than laws with respect to taxes based on or measured by net income, 2643 or any unincorporated business, payroll, franchise taxes levied by any tax board (other than 2644 franchise fees levied by the Authority) or employment taxes; or 2645 ---PAGE BREAK--- Version: 8/30/13 1-5 any order or judgment of any federal, State or local court, administrative agency or governmental 2646 body issued after the Service Commencement Date and the order or judgment is not also the 2647 result of the willful misconduct or negligent action or inaction of the Party relying thereon or of 2648 any third party for whom the Party relying thereon is directly responsible; or 2649 the imposition by a governmental authority or agency of any new or different material conditions 2650 in connection with the issuance, renewal, update or modification of any Permit after the date of 2651 this Agreement; or 2652 the failure of a governmental authority or agency to issue or renew, or delay in the issuance or 2653 renewal of, or the suspension, interruption or termination of, any Permit after the date of this 2654 Agreement; provided the failure to issue or the suspension or termination of any Permit is not the 2655 result of negligent action or inaction of the Party relying thereon or any third party for whom the 2656 Party relying thereon is directly responsible. 2657 “Closure” means closure of the Landfill or portions of the Landfill in accordance with Applicable Law, 2658 including all planning, design, regulatory approvals, plan implementation, construction and monitoring. 2659 “Collection Franchise Agreement(s)” refers to the franchise agreements between the Franchise 2660 Agencies and their Franchised Collector, either individually or collectively. 2661 “Commercial” shall mean of, from or pertaining to non-Residential premises where business activity is 2662 conducted, including, but not limited to, retail sales, services, wholesale operations, manufacturing, and 2663 industrial operations, but excluding businesses conducted upon Residential property which are 2664 permitted under applicable zoning regulations and are not the primary use of the property. 2665 “Compost” means a controlled biological decomposition of organic materials that are Source Separated 2666 from the municipal Solid Waste stream, or which are separated at a centralized facility. 2667 “Compostable Food Ware” means a subset of Organic Material, Compostable Food Ware is a product 2668 capable of Composting as of the Effective Date and labeled in accordance with California law, or is 2669 consistent with the timeline and specifications of ASTM D6400 and D6868, without regard to material 2670 type. The Parties’ intention is to maximize composting of such materials; as new commodities become 2671 available, and as long as materials are compostable in a commercially feasible and reasonable manner, 2672 they will be considered to be Organic Material. 2673 “Compost Product” means the product resulting from Composting, the controlled biological 2674 decomposition of organic materials, that are source separated from the municipal solid waste stream, or 2675 which are separated at a centralized facility. 2676 “Contractor” means West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., 2677 Golden Bear Transfer Services, Inc., Richmond Sanitary Service, Inc. and Keller Canyon Landfill Company, 2678 Inc. organized and operating under the laws of the State of California. For purposes of Indemnities, 2679 Contractor shall include Contractor’s employees, officers, agents, subcontractors and consultants 2680 performing or responsible for performing Services; provided that only signatory Contractors, 2681 ---PAGE BREAK--- Version: 8/30/13 1-6 corporations, are obligated to provide Indemnities and its employees, officers, agents, subcontractors, 2682 and consultants shall not be liable therefore as individuals. 2683 “Contractor Default” has the meaning provided in Section 7.1. 2684 “Construction and Demolition (C&D) Materials” includes but is not limited to concrete, cinder blocks, 2685 brick, mortar, wood, glass and other material removed and discarded during the alteration, renovation, 2686 remodeling, repair, construction or demolition of pavements, houses, commercial buildings or 2687 structures which can be separated from Solid Waste for the purpose of reuse, Processing or re- 2688 manufacture. 2689 “Conviction” means a Plea, criminal Conviction, permanent mandatory or prohibitory injunction, or a 2690 final judgment or order from a court or regulatory agency of competent jurisdiction with respect to 2691 Criminal Activity. 2692 “Criminal Activity” means, but is not limited to: 2693 any criminal offense in connection with obtaining, attempting to obtain, procuring or performing a 2694 public or private agreement related to Solid Waste, Organic Materials, or Recyclable Materials 2695 Services of any kind (including collection, hauling, Transfer, Processing, Composting, or Disposal), 2696 including this Agreement; or 2697 bribery or attempting to bribe a public officer or employee of a local, State, or federal agency; or 2698 fraud, embezzlement, extortion, racketeering, false claims, false statements, forgery, falsification 2699 or destruction of Records, obstruction of justice, knowingly receiving stolen property, theft, or 2700 misprision (failure to disclose) of a felony; or 2701 unlawful Disposal of Hazardous or Designated Waste; or 2702 Violation of antitrust laws, including laws relating to price-fixing, bid-rigging and sales and market 2703 allocation, and of unfair and anti-competitive trade practice laws, including with respect to 2704 inflation of waste collection, hauling or Disposal fees. 2705 “Day” means calendar day. 2706 “Designated Waste” means non-Hazardous Material which may pose special Disposal problems because 2707 of its potential to contaminate the environment and which may be Disposed of only in Class II Disposal 2708 sites, or Class III Disposal sites pursuant to a variance issued by the California Department of Health 2709 Services or pursuant to applicable Permits. Designated Waste consists of those substances classified as 2710 Designated Waste by the State, in CCR Title 23, Section 2522. 2711 “Direct Costs” means the sum of: 2712 payroll costs directly related to the Contractor’s performance, or supervision of any obligation 2713 pursuant to the provisions of this Agreement, or Authority’s administration and enforcement of 2714 ---PAGE BREAK--- Version: 8/30/13 1-7 this Agreement, comprised of compensation and fringe benefits, including vacation, sick leave, 2715 holidays, retirement, workers compensation insurance, federal and State unemployment taxes 2716 and all medical and health insurance benefits, plus 2717 the costs of materials, Services, direct rental costs and supplies, plus 2718 the reasonable costs of any payments to subcontractors necessary to and in connection with the 2719 performance under or administration and enforcement of this Agreement; plus 2720 any other cost or expense which is directly or normally associated with the task performed. 2721 Such Direct Costs are to be substantiated by a certificate signed by the principal financial officer of 2722 the Contractor or the authorized representative of the Authority or his or her designee, as the case may 2723 be, setting forth the amount of the cost and the reason why the cost is properly chargeable to the 2724 Authority or the Contractor, as the case may be, and representing that the cost is an arm's length and 2725 competitive price, if there are competitive prices, for Service or materials supplied; and (ii) if the 2726 Authority or the Contractor requests, as the case may be, additional back-up documentation as may be 2727 available to reasonably substantiate any Direct Cost, including invoices from suppliers and 2728 subcontractors. Direct Costs excludes Non-Allowable Costs. 2729 “Disposal or Dispose (or other variation thereof)” means the final Disposition of Solid Waste in 2730 accordance with this Agreement at the Landfill. 2731 “Diversion or Divert” means to Divert from landfill Disposal or transformation through source reduction, 2732 reuse, Recycling, Composting, or other means within the meaning of the Public Resources Code Section 2733 41780. 2734 “Diversion Goal Meeting” means a triennial meeting, described in Section 4.21 of this Agreement, 2735 between the Authority and Contractor, where the parties assess the progress towards achieving a 2736 seventy five percent (75%) Diversion goal by 2020. Nothing in this definition is to be interpreted as a 2737 75 % diversion guarantee. 2738 “Dry Material” means discarded material which is placed for Collection by the Generator as Solid Waste, 2739 but is Collected separately from other Generator’s Solid Waste by a Franchised Collector for the purpose 2740 of Diversion. This material is generally characterized as having a large amount of Recoverable paper, 2741 cardboard, and plastic and having fifteen percent (15%) or less by weight of Organic Materials. 2742 “Food Scraps" means materials that shall decompose and/or putrefy including: all kitchen and table 2743 food waste; (ii) animal or vegetable waste that is generated during or results from the storage, 2744 preparation, cooking or handling of food stuffs; (iii) discarded paper that is contaminated with Food 2745 Scraps; (iv) fruit waste, grain waste, dairy waste, meat, and fish waste; and, non-Recyclable paper or 2746 contaminated paper. Food Scraps are a subset of Organic Materials. 2747 “Franchise Agency(ies) or Franchising Agencies” means the County of Contra Costa and the cities of 2748 Hercules, Pinole, Richmond and San Pablo, collectively. 2749 ---PAGE BREAK--- Version: 8/30/13 1-8 2784 “Franchised Collector” means the company given the exclusive or limited right, by a Franchise Agency, 2785 to Collect Solid Waste, Organic Materials, and/or Recyclable Materials within the physical jurisdiction of 2786 that agency. 2787 “Generator” means any Person whose act or process produces Solid Waste or Unpermitted Waste or 2788 other material that becomes part of the overall waste stream. 2789 “Goods or Services” means all Goods or Services used in providing Services, including labor, leases, 2790 subleases, equipment, supplies and capital related to furnishing Services; insurance, bonds or other 2791 credit support if the insurer is an Affiliate or a captive of Contractor or any Affiliate; and legal, risk 2792 management, general and administrative services. 2793 “Goods or Services” means subcontracted Goods or Services used in providing Services, specifically 2794 labor, equipment, and supplies related to furnishing Services. . 2795 “Government Fees” are fees or taxes imposed uniformly upon Solid Waste Landfill without regard to 2796 the specific site characteristics or operational history of those facilities. Government Fees are not 2797 amounts imposed upon the Landfill in connection with the repair, remediation, improvement, addition, 2798 or expansion of the Landfill. 2799 “Government Fees” are federal, state or local fees or general or special taxes, including a business 2800 license tax, imposed on solid waste management and handling facilities, including any and all Approved 2801 Facilities pursuant to this Agreement. 2802 “Governmental Fee(s)” are federal, state and local fees and general special taxes imposed on receipt of 2803 Solid Waste or on Solid Waste handling or disposal activities related to the use of the Landfill and 2804 Approved Facilities and authorized under this Agreement. 2805 “Gross Receipts” shall mean total cash receipts collected from Customers by the Contractor for the 2806 provision of Services pursuant to this Agreement, without any deductions. Gross Receipts do not include 2807 revenues from the sale of Recyclable Materials. 2808 “Guarantor” means Republic Services, Inc.. 2809 “Guaranty Agreement” is the agreement in substantially the form attached as Exhibit 8.21 executed by 2810 the Guarantor. 2811 “Hazardous Materials or Hazardous Waste” are materials that by reason of their quality, concentration, 2812 composition or physical, chemical or infectious characteristics may cause or significantly contribute to 2813 an increase in mortality or an increase in serious illness or pose a substantial threat or potential hazard 2814 to human health or the environment when improperly treated, stored, Transported or Disposed of or 2815 otherwise mismanaged; or any waste which is defined and/or regulated as a Hazardous Waste, toxic 2816 waste, hazardous chemical substance or mixture, or asbestos under Applicable Law, and: 2817 Comment below Comment because Go provided la range of ite Comment below Comment mentioned is “Governm suggested b Comment definition a we are OK w Comment Potrero Hill Component ---PAGE BREAK--- Version: 8/30/13 1-9 "Hazardous Waste" pursuant to Section 40141 of the California Public Resources Code; regulated 2818 under Chapter 7.6 (commencing with Section 25800) of Division 20 of the California Health and 2819 Safety Code; all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely 2820 Hazardous Waste by Sections 25110.02, 25115, and 25117 of the California Health and Safety 2821 Code (the California Hazardous Waste Control Act), California Health and Safety Code Section 2822 25100 et seq., including 23 CCR Sections 2521 and 2522; 2823 materials regulated under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et 2824 seq., as amended (including amendments thereto made by the Solid Waste Disposal Act 2825 Amendments of 1980), 2826 materials regulated under the Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq., as 2827 amended, and related federal, State and local laws and regulations, including the California Toxic 2828 Substances Account Act, California Health and Safety Code Section 25300 et seq.; 2829 materials regulated under the Comprehensive Environmental Response, Compensation and 2830 Liability Act, 42 U.S.C. 9601, et seq.; 2831 materials regulated under any future additional or substitute federal, State or local laws and 2832 regulations pertaining to the identification, Transportation, treatment, storage or Disposal of toxic 2833 substances or Hazardous Waste; and 2834 Any substance the presence of which at the Landfill is prohibited by Applicable Law. 2835 If two or more governmental agencies having concurrent or overlapping jurisdiction over Hazardous 2836 Waste adopt conflicting definitions of "Hazardous Waste", for purposes of collection, Transportation, 2837 Processing and/or Disposal, the broader, more restrictive definition is employed for purposes of this 2838 Agreement. 2839 “Holidays” are defined as New Year’s Day, Martin Luther King Holiday, President’s Holiday, Easter 2840 Sunday, Memorial Day, Fourth of July, Labor Day, Columbus Day, Thanksgiving Day, and Christmas Day. 2841 “Household Hazardous Waste” means any Hazardous Waste generated incidental to owning or 2842 maintaining a place of residence, excluding any Hazardous Waste generated in the course of operation 2843 of a business concern at a residence, in accordance with Section 25218.1 of the California Health and 2844 Safety Code. 2845 “Immediate or Immediately” means within twelve (12) hours. 2846 “Indemnities or Indemnification” means all defense and Indemnities under this Agreement. 2847 “Landfill” means Keller Canyon Landfill which is owned and operated by Contractor and located in 2848 Contra Costa County at 901 Bailey Road, Pittsburg, CA. 2849 “Liabilities” means all Liabilities, including: 2850 ---PAGE BREAK--- Version: 8/30/13 1-10 Actions; 2851 Awards, judgments and damages, both: actual damages, whether special and consequential, in 2852 contract or in tort, such as natural resource damages, damage for injury to or death of any Person; 2853 and damage to property; and (ii) punitive damages; 2854 Contribution or indemnity claimed by Persons other than the Parties; 2855 Injuries, losses, debts, liens, Liabilities; 2856 Costs, such as response remediation and removal costs; 2857 Interest; 2858 Fines, charges, penalties, forfeitures; and 2859 Expenses such as attorney’s and expert witness fees, expenditures for investigation and 2860 remediation, and costs incurred in connection with defending against any of the foregoing or in 2861 enforcing Indemnities. 2862 “Medical Waste” means those waste materials that have disease transmission potential and are 2863 classified as Hazardous Wastes by the State Department of Health Services, including pathological and 2864 surgical wastes, medical clinic wastes, wastes from biological laboratories, syringes, needles, blades, 2865 tubing, bottles, drugs, patient care items that as linen or personal or food service items from 2866 contaminated areas, chemicals, personal hygiene wastes, and carcasses used for medical purposes or 2867 with known infectious diseases, where “Infectious Waste” means biomedical waste generated at 2868 hospitals, public or private medical clinics, dental offices, research laboratories, pharmaceutical 2869 industries, blood banks, mortuaries, veterinary facilities and other similar establishments that are 2870 identified in the California Health and Safety Code Section 25117.5; 2871 “Member Agencies” means the cities of El Cerrito, Hercules, Pinole, Richmond and San Pablo, 2872 collectively. The City of El Cerrito is a Member Agency as defined in the Authority’s Joint Powers 2873 Agreement, however is not covered by or included in this Agreement. 2874 Pending Negotiations 2875 “Niche Service(s)” Pending Negotiations 2876 “Non-Allowable Costs” include the following: 2877 fines, penalties, assessments and other amounts paid for Violations or noncompliance with 2878 Applicable Law or in settlement of claims or allegations of noncompliance with Applicable Law; 2879 any costs of indemnifications, including Indemnification, Liabilities, or any mediation, arbitration 2880 or judicial proceeding, whether formal or informal; 2881 ---PAGE BREAK--- Version: 8/30/13 1-11 any contributions or donations to any Person (including charitable, non-profit, service or other 2882 community groups, and elected officials), including cash, property and services in kind; 2883 lobbying costs, whether cash, property or services in kind, such as: 2884 -costs incurred in any direct or indirect attempt to influence the outcome of any federal, State 2885 or local election, referendum, initiative or similar process by citizen electorate or vote upon 2886 resolutions, ordinances or other action items by elected officials (including members of the 2887 Authority Board of Directors, city council, or a county board of supervisors), through cash 2888 contributions, endorsements, publicity or other action; 2889 -establishing, administering, contributing to, or paying the expense of a candidate, political 2890 party, campaign, political action committee, or other Person or organization established for the 2891 purpose of influencing the outcomes of elections or vote, including votes on resolutions, 2892 ordinances or other actions by elected bodies such as the Authority Board of Directors, city 2893 council, or a county board of supervisors; 2894 -attempts to influence the introduction of federal, State or local legislation or (ii) the 2895 enactment or modification of any pending federal, State or local legislation through 2896 communication with any member or employee of Congress, a State legislature or local 2897 governing body, or by preparing, distributing or using publicity; 2898 -legislative liaison activities when those activities are carried on in support of, or in knowing 2899 preparation for, an effort to engage in unallowable activities; and 2900 costs of preparing documentation, including cost, financial and accounting books and Records, 2901 upon request of Authority or any accountant, auditor, financial analyst or consultant retained by 2902 Authority, incurred to substantiate Direct Costs, or allocation thereof. 2903 “Notice” means a Notice given in accordance with Section 8.9. 2904 “Organic Materials” means those Yard Trimmings and Food Scraps which are specifically accepted at 2905 the Approved Organic Materials Processing Facility. No Discarded Material shall be considered to be 2906 Organic Materials, however, unless it is separated from Solid Waste and Recyclable Material. 2907 “Overs” means portion(s) of Organic Material that is/are not suitable for composting. Also called 2908 compost-overs, these are large, woody parts of the compost pile that have not completely broken down 2909 during the composting process. Overs also include plastics and other non-compostable items in the 2910 Organic Material. Overs comprise approximately 7.5 percent of the Organic Material composted. 2911 “Ownership” has the meaning provided under the constructive Ownership provisions of Section 318(a) 2912 of the Internal Revenue Code of 1986 except that ten percent (10%) is substituted for fifty percent 2913 (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; Section 318(a)(5)(C) is disregarded; 2914 Ownership interest of less than ten percent (10%) is disregarded; and, percentage interests is 2915 ---PAGE BREAK--- Version: 8/30/13 1-12 determined on the basis of the percentage of voting interest or value which the Ownership interest 2950 represents, whichever is greater. 2951 “Party or Parties” refers to the Authority and Contractor, individually or together. 2952 “Permits” means applicable federal, State, Authority, other local or regional governmental unit Permits, 2953 orders, licenses, approvals, authorizations, consents and entitlements that are required under 2954 Applicable Law to be obtained or maintained by Contractor in order to perform the Services, as renewed 2955 or amended from time to time. 2956 “Person(s)” includes an individual, firm, association, organization, partnership, corporation, trust, joint 2957 venture, the United States, the State, local governments and municipalities and special purpose districts 2958 and other entities. 2959 “Pleas” means the Contractor or any of its representatives has pled “guilty” or entered a Plea of “nolo 2960 contendere” or “no contest” to Criminal Activity relating to this Agreement. 2961 “Post-Closure” means Post-Closure of the Landfill or portions of the Landfill in accordance with 2962 Applicable Law, including all maintenance and monitoring. 2963 “Post-Collection Surcharge(s)” means the maximum amount Contractor, through the Franchise 2964 Collector’s billing system, may charge Customers based on their collection service level as measured in 2965 gallons, cubic yards, or tons, for Services under this Agreement. Post-Collection Surcharge(s) are either 2966 cart-based or bin-based and are calculated using the Authority approved per-ton Rates in the manner 2967 described in Section 5.4. Contractor may, in its sole discretion, charge any amount up to and including 2968 the maximum Post-Collection Rate Surcharge(s) approved by the Authority. 2969 “Process(ing)” means to prepare, treat, or convert through some special method. 2970 “PRC” means the California Public Resources Code. 2971 “Quarterly Report” is described in Section 4.14. 2972 “Rate(s)” means the maximum amount, expressed as a dollar unit per ton, approved by the Authority 2973 for the use in calculating the allowable Post-Colleciton Surcharge(s) that Franchise Haulers can that the 2974 Contractor may bill a Customer for providing Customer Services under this Agreement, and Contractor 2975 may, in its sole discretion, charge any amount up to and including the maximum Rate approved by the 2976 Authority. A Rate has been established for each individual scope of Service and the initial Rates are 2977 presented in Section 5. 2978 “Rate(s)” means the maximum amount, expressed as a dollar unit, approved by the Authority that the 2979 Contractor may bill a Customer for providing Customer Services under this Agreement, and Contractor 2980 may, in its sole discretion, charge any amount up to and including the maximum Rate approved by the 2981 Authority.. A Rate has been established for each individual scope of Service and the initial Rates are 2982 presented in Section 5. 2983 Comment Article 5 an To denote t Section 5 an customers. and JPA wil “surcharge” Comment per ton and and charge for Post-Co Comment below ---PAGE BREAK--- Version: 8/30/13 1-13 2984 2985 “RCRA” means the Resource Conservation and Recovery Act (42 U.S.C. Section 6900 et. seq.). 2986 “Reasonable Business Efforts” means those efforts a reasonably prudent business Person would expend 2987 under the same or similar circumstances in the exercise of that Person’s business judgment, intending in 2988 good faith to take steps calculated to satisfy the obligation that that Person has undertaken to satisfy. 2989 “Records” means all ledgers, books of account, invoices, vouchers, canceled checks, logs, 2990 correspondence and other Records or documents evidencing or relating to Rates, Tonnages, satisfaction 2991 of Contractor’s obligations under this Agreement and performance of the terms of this Agreement, 2992 damages payable under this Agreement and Contractor Defaults, including those Records described in 2993 Sections 4.3, 4.4, 4.14, 4.17, 4.18, 8.14, 8.15 and 10.1. 2994 “Recovered Material” means Recyclable Materials, Organic Materials, C&D materials, and Dry Materials 2995 that are Recovered. 2996 “Recovery or Recover or Recovered (or other variations thereof)” means the picking, pulling, sorting, 2997 separating, classifying and Recovery of Recyclable Materials from Solid Waste whether by manual or 2998 mechanical means, after acceptance of the materials and before marketing of Recovered Materials, 2999 including Recycling, material reuse and Recovery, mulching, Composting, land application or 3000 transformation. 3001 “Recycle(ing)” means the process of sorting, cleansing, treating and reconstituting materials that would 3002 otherwise be Disposed of at a landfill for the purpose of returning such materials to the economy in the 3003 form of raw materials for new, reused or reconstituted products. 3004 “Recyclable Materials” means materials that are reused, remanufactured, or Processed. This definition 3005 is inclusive of bothTraditional Recyclable Materials and Specialty Recyclable Materials. 3006 “Residential” shall mean of, from, or pertaining to a single-family premises or multi-family premises 3007 including single-family homes, apartments, condominiums, townhouse complexes, mobile home parks, 3008 cooperative apartments, and yacht harbors and marinas where residents live aboard boats. 3009 “Residue” means Solid Waste remaining as non-marketable commodities following Processing of 3010 Recyclable Materials. 3011 “Services” mean all obligations of Contractor under and in accordance with this Agreement to 3012 Authority. 3013 “Service Commencement Date” means the date specified in Section 2.2 when Post-Collection, Services 3014 required by this Agreement shall be provided. 3015 ---PAGE BREAK--- Version: 8/30/13 1-14 “Solid Waste” means and includes all putrescible and nonputrescible solid, semisolid, and liquid wastes, 3016 including garbage, trash, refuse, rubbish, ashes, industrial wastes, demolition and construction wastes, 3017 discarded home and industrial appliances, manure, vegetable or animal solid and semisolid wastes, and 3018 other discarded solid and semisolid wastes, as defined in California Public Resources Code §40191 as 3019 that section may be amended from time to time. For the purposes of this Agreement, “Solid Waste” 3020 does not include abandoned vehicles and parts thereof, Hazardous Waste, or low-level radioactive 3021 waste, medical waste, Recyclable Materials, Dry Material, C&D Materials, or Organic Materials. 3022 “Specialty Recyclable Materials” means Recyclable Materials that are not specified as Traditional 3023 Recyclable Materials that can be Collected by the Franchised Collector for purposes of Recycling by any 3024 Person, including the Authority or the Franchised Collector. For example, Specialty Recyclable Materials 3025 include, but are not limited to, large pieces of scrap metal, mattresses, C&D material, pallets, tires, 3026 plastic film, carpet, used motor oil, and used motor oil filters. 3027 “Standard Industry Practice” means the then-current development and operations practices and 3028 standards of the northern California Solid Waste management industry with respect to Recovery, 3029 Diversion, Transfer, Transport and Disposal Services, and the then-current development, operations, 3030 Closure, and Post-Closure practices and Solid Waste Association of North America (or any successor 3031 organization) Manager of Landfill Operations standards in meeting Contractor’s obligations under this 3032 Agreement for Recovery, Diversion, and Disposal Services. 3033 “State” means the State of California. 3034 “Subcontractors” includes any Person that provides Goods or Services to Contractor, whether pursuant 3035 to formal, written agreement or merely in fact; subcontract means any arrangement, formal or informal, 3036 written or otherwise, between Contractor and a Subcontractor for providing Goods or Services. In no 3037 case shall the Contractor’s use of a Subcontractor confer upon that subcontractor any third party 3038 beneficiary rights under this Agreement. 3039 “Term” is defined in Section 2.2. 3040 “Ton(nage)” means a short Ton of two thousand (2,000) standard pounds where each pound contains 3041 sixteen (16) ounces. 3042 “Traditional Recyclable Materials” means Recyclable Materials which are included in the Processing 3043 and marketing plan of the Approved Recyclable Materials Processing Facility. The initial list of 3044 Traditional Recyclable Materials includes: All mixed paper, cardboard, #1 - #7 plastic beverage and food 3045 containers, mixed rigid plastic packaging and other food containers, glass containers (no Pyrex, 3046 windows, or mirrors), aluminum cans, tin cans, small pieces of scrap metal, plastic film and wrapping 3047 bags (properly bagged together), all mixed plastics, paper cartons, and milk and juice cartons. 3048 “Transfer(ing) (or other variations thereof)” means transferring Solid Waste at the Golden Bear Transfer 3049 Station, if any, from Residential Collection vehicles, Commercial Collection vehicles and self-haulers into 3050 Transfer Vehicles. 3051 ---PAGE BREAK--- Version: 8/30/13 1-15 “Transfer Vehicle” means a tractor and trailer designed to haul Solid Waste from any Transfer Station to 3052 the Landfill. 3053 “Transport(ation)” means the Transportation of Solid Waste, Organic Materials, and/or Recyclable 3054 Materials from any Transfer Station to the Landfill in accordance with Section 4.1.8. 3055 “Uncontrollable Circumstance(s)” means any act, event or condition, whether affecting Services or 3056 (ii) either Party, that is beyond the reasonable control of the Party relying thereon and not the result of 3057 willful or negligent action or inaction of that Party (other than the contesting in good faith or the failure 3058 in good faith to contest that action or inaction), which materially and adversely affects the ability of 3059 either Party to perform any obligation under this Agreement, comprised of: 3060 An act of nature, landslide, lightning, earthquake, fire, tsunami, flood, or other natural disaster 3061 (excluding reasonably anticipated weather conditions within the jurisdictional Service Area of the 3062 Authority), explosion, sabotage, terrorism, , war, blockade or insurrection, riot, civil disturbance, 3063 or other similar catastrophic events; 3064 The failure of any appropriate federal, State or local public agency or private utility having 3065 operational jurisdiction in the area in which the Landfill or Approved Processing Facility is located 3066 to provide and maintain utilities, services, water, sewer or power transmission lines thereto; 3067 A Change in Law other than a Change in Law excluded in item (ii) below; and 3068 Strikes, work stoppages or other labor disputes or disturbances of Persons other than Contractor 3069 or any Affiliates performing Services; 3070 Uncontrollable Circumstances excludes, without limitation: 3071 Either Party's own breach of its obligations under this Agreement; 3072 (ii) Adverse changes in the financial condition of either Party or any Change in Law with respect to 3073 any taxes based on or measured by net income, or any unincorporated business, payroll, franchise 3074 or employment taxes; 3075 (iii) Strikes, work stoppages or other labor disputes or disturbances lasting longer than ninety-six (96) 3076 hours affecting Contractor or any Affiliates performing Services, or Contractor’s or Affiliates’ 3077 inability to hire adequate numbers of personnel who are competent and skilled in the work to 3078 which they are assigned; 3079 (iv) The failure of the Contractor to secure Permits necessary for Services; and, 3080 As to the Contractor, the failure of any facilities and/or equipment to perform in accordance with 3081 any warranties, unless caused by Uncontrollable Circumstances. 3082 “Unpermitted Waste” means wastes or other materials that the Landfill may not receive under their 3083 Permits, including: 3084 ---PAGE BREAK--- Version: 8/30/13 1-16 All materials that the Landfill is not permitted to accept; 3085 Asbestos, including friable materials that can be crumbled with pressure and are therefore likely 3086 to emit fibers, being a naturally occurring family of carcinogenic fibrous mineral substances, which 3087 may be Hazardous Materials if it contains more than one percent asbestos; 3088 Ash residue from the incineration of solid wastes, including Solid Waste, infectious waste 3089 described in Item below, wood waste, sludge not meeting at a minimum Class B standards as 3090 defined by Title 40 of the Code of Federal Regulations, Part 503 (The Standards for the Use or 3091 Disposal of Sewage Sludge) and agricultural wastes; 3092 Hazardous Materials; 3093 Medical Waste; 3094 Liquid wastes that are not spadeable, usually containing less than fifty percent (50%) solids, 3095 including cannery and food Processing wastes, landfill leachate and gas condensate, boiler 3096 blowdown water, grease trap pumpings, oil and geothermal field wastes, septic tank pumpings, 3097 rendering plant byproducts, sewage sludge not meeting certain quality criteria unclassified 3098 sludge less than and those liquid wastes that may be Hazardous Wastes; 3099 Radioactive wastes under Chapter 7.6 (commencing with Section 25800) of Division 20 of the 3100 State Health and Safety Code, and any waste that contains a radioactive material, the storage or 3101 Disposal of which is subject to any other state or federal regulation; 3102 Sewage sludge comprised of human (not industrial) residue, excluding grit or screenings, removed 3103 from a wastewater treatment facility or septic tank, whether in a dry or semi-dry form not 3104 meeting certain quality criteria unclassified sludge less than and/or 3105 Designated Waste, but only if not permitted at the Landfill under Applicable Law, including 3106 Permits. 3107 This definition shall be amended to reflect any applicable changes in permits or Applicable 3108 Law. 3109 “Violation” means any Notice, assessment or determination of non-compliance with Applicable Law 3110 from any Regulatory Agency to Contractor, after the exhaustion of all appeals and judicial processes, if 3111 applicable, whether or not a fine or penalty is included, assess, levied or attached, where Regulatory 3112 Agency means any federal, State or local governmental agency that regulates Transfer, Transportation 3113 and Disposal of Solid Waste, including California Department of Transportation, California Department 3114 of Motor Vehicles, EDD, U.S. Immigration and Naturalization Services, California Air Resources Board, 3115 regional water quality management districts, California Department of Toxic Substances, CalRecycle, the 3116 Local Enforcement Agency, federal and State Environmental Protection Agencies and other federal or 3117 State health and safety department, applicable to Services. 3118 ---PAGE BREAK--- Version: 8/30/13 1-17 “Working Days or Work Day (or other variations thereof)” means each day of the week excepting 3119 Saturdays, Sundays, and Holidays. 3120 “Yard Trimmings” means materials that shall decompose and/or putrefy, including, but not limited to, 3121 green trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead 3122 trees, small pieces of unpainted and untreated wood, and other types of organic waste. Yard Trimmings 3123 are a subset of Organic Materials. 3124 ---PAGE BREAK--- Version: 8/30/13 EXHIBIT 2.4.6 3125 ENHANCED COLLECTION SERVICES 3126 3127 ---PAGE BREAK--- Version: 8/30/13 EXHIBIT 4.1.4 3128 DRY MATERIAL PROCESSING 3129 3130 ---PAGE BREAK--- Version: 8/30/13 EXHIBIT 4.1.9 3131 PUBLIC EDUCATION AND OUTREACH 3132 3133 3134 ---PAGE BREAK--- Version: 8/30/13 EXHIBIT 4.14 3135 REPORTING 3136 3137 3138 3139 ---PAGE BREAK--- Version: 8/30/13 EXHIBIT 6.2 3140 INSURANCE 3141 1. General Liability Insurance Services Office form number GL 0002 covering Comprehensive 3142 General Liability and Insurance Services Office form number GL 0404 covering Broad Form 3143 Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage 3144 ("occurrence" form CG 0001). $10,000,000 combined single limit per occurrence for bodily injury, 3145 personal injury and property damage. 3146 The Commercial General Liability Business policy must contain endorsements in substantially the 3147 following form: 3148 "Thirty (30) Calendar Days prior written notice shall be given to the Authority in the event of policy 3149 cancellation. Such Notice shall be sent via e-mail to: 3150 West Contra Costa Integrated Waste Management Authority 3151 Executive Director 3152 1 Alvarado Square 3153 San Pablo, CA 94806 3154 3155 (ii) "The Authority, its officers, employees, and agents are additional insureds on this policy." The 3156 Authority requires form CG2010 0704. 3157 (iii) "This policy shall be considered primary insurance as respects any other valid and collectible 3158 insurance maintained by the Authority, including any self-insured retention or program of self- 3159 insurance, and any other such insurance shall be considered excess insurance only." 3160 (iv) "Inclusion of the Authority as an additional insured shall not affect the Authority's rights as 3161 respects any claim, demand, suit or judgment brought or recovered against the Contractor. This policy 3162 shall protect Contractor and the Authority in the same manner as though a separate policy had been 3163 issued to each, but this shall not operate to increase the Contractor's liability as set forth in the policy 3164 beyond the amount shown or to which the Contractor would have been liable if only one Party had 3165 been named as an insured." 3166 2. Automobile Liability Insurance Services Office form number CA 0001 covering Automobile 3167 Liability, code 1 "any auto" and endorsement CA [PHONE REDACTED] (occurrence form). $10,000,000 3168 combined single limit per accident for bodily injury and property damage. The Automobile Liability 3169 policy must contain the same endorsements as required for Comprehensive General Liability and MCS 3170 90 endorsement. 3171 3172 3. Workers’ Compensation and Employers Liability Insurance. Workers’ compensation limits as 3173 required by State Labor Code Section 3700. 3174 The Workers' Compensation policy must contain a broad form waiver of subrogation: endorsement. 3175 ---PAGE BREAK--- Version: 8/30/13 The insurer must waive all rights of subrogation against the Authority, its officers, employees and 3176 volunteers for losses arising from work performed by the Contractor for the Authority, except for the 3177 willful misconduct or sole negligence of the Authority. 3178 4. Pollution Legal Liability in the amount of ten million dollars ($10,000,000) covering liability 3179 arising from the release of pollution at the Landfill. The Pollution Legal Liability policy must contain the 3180 same endorsements as required for Comprehensive General Liability. 3181 3182 ---PAGE BREAK--- Version: 8/30/13 EXHIBIT 8.19 3183 LIQUIDATED DAMAGES 3184 The performance standards and liquidated damages below are intended to identify the damages 3185 associated with the Contractor’s willful or negligent acts or omissions under the Agreement which 3186 reduce the value of the services provided under this Agreement to the Authority and ratepayers. In the 3187 event that a failure to achieve a performance standard is the result of a foreseeable, but uncontrollable 3188 circumstance, Contractor shall notify the Authority, in writing, of its prospective failure and the means 3189 and date by which Contractor intends to remedy the failure. In the event that a failure to achieve a 3190 performance standard is the result of an unforeseeable and uncontrollable circumstance, Contractor 3191 shall notify the Authority in writing within one business day of the failure and shall notify the Authority 3192 of Contractors plans to prevent future failures for similar reasons. The determination of the 3193 unforeseeable and/or uncontrollable nature of the circumstances shall be made in the reasonable 3194 discretion of the Authority’s Contract Manager. This determination may consider the information 3195 provided by the Contractor and any other information which may be relevant. In the event such 3196 circumstances are determined to be unforeseeable and/or uncontrollable, the Authority’s Contract 3197 Manager shall waive the assessment of damages. 3198 3199 Performance Standard Liquidated Damages 1. Failure to implement and conduct operational services. For each day that contractor is delayed in implementing or conducting any operational service(s) required under Sections 4.1.1 through 4.1.7 of this Agreement beyond the specified implementation date $1,000/service/day 2. Use of Authorized Facilities. For each ton of Solid Waste, Dry Materials, Recyclable Materials, Organic Materials, or C&D Debris delivered to a facility not approved for use under the provisions of this Agreement. This performance standard and associated liquidated damage would not apply in the event that Contractor provides notice in writing within 48 hours to the Authority of the need to use an alternative facility due to an unforeseen and uncontrollable circumstance. $125/ton 3. Disposal of Organic or Recyclable Materials. For each ton of otherwise marketable Organic Materials or Recyclable Materials Disposed, either pre- or post-processing, without the prior written approval of the Authority. This provision explicitly excludes Dry Materials processing, Compost Overs, and Residue from C&D and Curbside Processing. $125/ton 4. Timely submission of required reports and rate adjustment requests. For each day that a report or rate adjustment request required by this agreement is overdue past the specified due date. No submittal shall be deemed responsive to this requirement unless it is complete and accurate. In the event that a report is submitted and complete, but contains information the Authority reasonably believes is inaccurate, Contractor shall have ten (10) Working Days to correct or substantiate the information prior to this liquidated damage being imposed. $200/day for each day until accurate and complete submittal received 5. Timely response to requested information. For each day that contractor fails to respond to an Authority request for information or data that is authorized by the Agreement and which exceeds the allowable timeframes defined by the Agreement. The Authority shall request the information in writing and provide the Contractor a minimum of 15 business days to respond. No submittal shall be deemed responsive to this requirement unless it is complete and accurate. In the event that a report is submitted and complete, but contains information the Authority reasonably believes is inaccurate, Contractor shall have ten (10) Working Days to correct or substantiate the $200/day for each day until accurate and complete submittal received ---PAGE BREAK--- Version: 8/30/13 information prior to this liquidated damage being imposed. 6. Failure to record accurate weights. For each failure to accurately weigh, record, and store the required details related to each and every load of material received at each of the approved facilities. Loads shall be considered inaccurately weighed if Contractor has not received required scale certification or if Contractor fails to update stored tare weights as needed (e.g. when major repairs are done to vehicles). Exceptions include power failures and equipment failures beyond Contractor’s control. In such an event, the Contractor shall comply with the requirements of Section 4.9 of the Agreement in order to record accurate weights. $250/load 7. Inaccurate disposal reporting. For each ton of waste that is incorrectly attributed to the Authority or any Franchise Agency resulting from an error in Contractor’s submission to the County Disposal Reporting Coordinator, after notice and opportunity for correction of State DRS reports, for the purposes of the State Disposal Reporting System. $125/ton 8. Delay in producing and/or delivering public education. For each day, up to 30, that Contractor is delayed in the production and/or delivery of public education materials required to be provided to the customers of Richmond Sanitary Service within the Authority service area under Section 4.1.9 of the Agreement, provided that the delay was an event under the control of the Contractor. In the event that a piece of public education is required quarterly, or annually, the item will be past due on the first day of the following calendar month, quarter, or year respectively. In the event Contractor is delayed more than thirty (30) days, Contractor shall have failed to perform under the Agreement and the Authority may utilize the funds available under the performance surety to produce and deliver the required education materials. $100/day for each day until delivered, up to 30 days per item AND $2,500/event if delayed more than 30 days 9. Failure to provide technical assistance and outreach. Any failure to provide ongoing technical assistance (e.g. site visits requested by customer, the Authority, a Franchise Agency, or required in Section 4.1.8 or the annual education and outreach plan) and community outreach services (e.g. attending public events and venues to promote recycling and diversion programs) as required by the Agreement. Failure to provide technical assistance to Customers shall be counted as one event per Customer. $750/event 10. Accuracy of customer service information. Any documented (e.g. voice recording, copy of written materials or email, etc.) instance of any Contractor employee or agent providing inaccurate information to the public regarding the services provided under the Agreement. Information shall be determined inaccurate if it is in direct contradiction to the services and terms of the Agreement and/or any public education materials (e.g. website, brochures, posters, etc.) which have been approved by the Authority or applicable Franchise Agency. Information shall also be determined inaccurate if it fails to provide complete information on the subject which would educate the Customer about Diversion opportunities (e.g. omitting food waste from a list of accepted materials in the green cart, failing to inform Commercial customers that recycling or organics services are provided at no additional charge, etc.). $250/event 11. Insufficient number of active source separated organics accounts. For each Customer below the target number of active Source Separated Organics Customers at or after each milestone date (i.e. 200 accounts by December 31, 2014; 300 accounts by December 31, 2015; 400 accounts by December 31, 2016). An account shall only be deemed active if they have subscribed to service, have received a container, and are actively separating organic materials from other solid waste. This measurement may be performed using actual account information from the preceding calendar month. An account shall be considered active for the purposes of this performance standard, regardless of their actual separation of organic materials, if Contractor can $200/customer/ month ---PAGE BREAK--- Version: 8/30/13 demonstrate to the satisfaction of the Authority that Contractor’s Recycling Coordinators have made a good faith effort to work repeatedly with that account to identify and overcome barriers to their use of the program. 12. Failure to achieve dry processing diversion. For each ton that actual calendar year dry processing is below 10,000 tons processed in 2014 and 18,250 tons processed in each subsequent calendar year. This measurement may be performed annually using actual results from the preceding calendar year. In the event that actual processing tonnage is at least 90% of the standard for any given calendar year, Contractor may notify the Authority in writing of its intent cure the failure by processing a commensurate volume of additional dry material in the following calendar quarter. If the Contractor fails to provide such notice or process sufficient additional volumes in the following quarter, the performance standard shall not have been met. $150/ton 13. Failure to maintain diversion of C&D recycling. For each month that Contractor fails to maintain 70% or more of mixed C&D processed by Contractor is diverted. Damages shall be assessed based on the actual percentage of diversion achieved relative to the target, where two percentage points is used to measure the scale of the damage. For example, if Contractor achieves a diversion rate of 68.2% for a given month, the Authority may assess liquidated damages of up to $1,000 for that month because 68.2% is within two percentage points of the 70.0% target diversion rate. As another example, if Contractor achieves a diversion rate of 67.9% the Authority may assess liquidated damages of up to $2,000 for that month because 67.9% is more than two and less than four percentage points from the 70.0% target diversion rate. The measurement criteria to be based on overall C&D processing system diversion. The facility, in whole or in part, shall be certified from a certifying public agency (e.g. StopWaste.org, City/County of San Francisco, etc.) or industry group acceptable to the Authority. In the absence of a certifying public agency, the Authority and Contractor will meet and confer on certification criteria. In the event of a Change in Law associated with the diversion credit provided for using construction and demolition debris fines as ADC or other beneficial use, the Parties shall agree on a reduced diversion standard based on the elimination of that credit. $1,000 per two percentage points per month 3200 3201 ---PAGE BREAK--- Version: 8/30/13 EXHIBIT 8.20 3202 GUARANTY AGREEMENT 3203 This Guaranty, made as of the date written below by (Guarantor), to and for the 3204 benefit of the West Contra Costa Integrated Waste Management Authority (Authority), a municipal 3205 corporation of the State of California (State). 3206 WITNESSETH 3207 WHEREAS, the Contractor and the Authority have negotiated the Agreement between the Authority for 3208 Solid Waste, Recyclable Materials, and Organic Materials Transport, Processing, and Disposal Services 3209 dated as of the later of the date of execution thereof by the Authority or the Contractor, as may be 3210 supplemented and amended from time to time in accordance with the terms thereof (Agreement), 3211 which Agreement is incorporated in this Agreement by reference and by this Agreement made part of 3212 this Agreement; 3213 WHEREAS, it is in the interest of Guarantor that the Contractor enter into the Agreement with the 3214 Authority; 3215 WHEREAS, the Authority is willing to enter into the Agreement only upon the condition that the 3216 Guarantor execute this Guaranty; 3217 WHEREAS, in the event Contractor fails to timely and fully perform its obligations, including the 3218 payment of moneys, pursuant to the Agreement, Guarantor is willing to Guaranty, Contractor’s timely 3219 and full performance thereof; and 3220 WHEREAS, it is a condition precedent to the Authority’s obligations under the Agreement that the 3221 Guarantor provide this Guaranty. 3222 NOW, THEREFORE, as an inducement to the Authority to enter into the Agreement, the Guarantor 3223 agrees as follows: 3224 Capitalized terms used in this Agreement and not otherwise defined in this Agreement, shall have the 3225 meaning assigned to them in the Agreement. 3226 Guaranty of Contractor’s Performance Under Agreement. Guarantor by this Guaranty directly, 3227 unconditionally, irrevocably, and absolutely guaranties the timely and full performance of Contractor’s 3228 obligations under the Agreement in accordance with the terms and conditions contained therein or to 3229 cause that timely and full performance. Within thirty (30) Calendar Days written request therefore by 3230 the Authority, Guarantor shall honor the Guaranty. Notwithstanding the unconditional nature of the 3231 Guarantor’s payment obligations set forth in this Agreement, the Guarantor may assert the defenses 3232 provided in the paragraph entitled Defenses under Section 8 of this Guaranty, against claims made 3233 under this Guaranty. 3234 ---PAGE BREAK--- Version: 8/30/13 Governing law; consent to jurisdiction; service of Process. This Guaranty is governed by the laws of 3235 the State of California. The Guarantor by this Guaranty agrees to the service of Process in the State for 3236 any claim or controversy arising out of this Guaranty or relating to any breach. The Guarantor by this 3237 Guaranty agrees that the Superior Court of Contra Costa County, and to the extent permitted by law, the 3238 United States District Court for the Northern District of California, shall have the exclusive jurisdiction of 3239 all suits, Actions, and other proceedings involving itself and to which the Authority may be party for the 3240 adjudication of any claim or controversy arising out of this Guaranty or relating to any breach of this 3241 Guaranty, waives any objections that it might otherwise have to the venue of any Court for the trial of 3242 any suit, action, or proceeding, and consents to the service of process in any suit, action, or proceeding 3243 by prepaid registered mail, return receipt requested. 3244 Enforceability; no Assignment. This Guaranty is binding upon and enforceable against Guarantor, its 3245 successors, Assignees, and lawful representatives. It is for the benefit of the Authority, its successors 3246 and Assignees. The Guarantor may not Assign or delegate the performance of this Guaranty without the 3247 prior written consent of the Authority in its sole discretion. Any Assignment made without the consent 3248 of Authority is voidable by the Authority in its sole discretion. Together with its request for Authority 3249 consent, Guarantor shall pay Authority fifty thousand dollars ($50,000) to pay Authority its reasonable 3250 expenses for private attorneys' fees and investigation costs ("Assignment expenses") necessary to 3251 investigate the suitability of any proposed Assignee, and to review and finalize any documentation 3252 required as a condition for approving any Assignment. Authority shall reimburse Guarantor the excess, if 3253 any, over those Assignment expenses it incurs. Contrariwise, Guarantor shall pay Authority the excess 3254 Assignment expenses, if any, over fifty thousand dollars ($50,000) Authority incurs within thirty (30) 3255 Calendar Days of Authority’s request thereof. Guarantor shall further pay to Authority the Authority‘s 3256 Reimbursement Costs for fees of attorneys who are not Authority employees and investigation costs 3257 necessary to enjoin the Assignment or to otherwise enforce this provision within thirty (30) Calendar 3258 Days of Authority’s request thereof ("injunction costs"). 3259 For purposes of this Guaranty “Assign” and “Assignment” means: 3260 selling, exchanging or otherwise transferring effective control of management of the Guarantor 3261 (through sale, exchange or other transfer of outstanding stock or otherwise); 3262 (ii) issuing new stock or selling, exchanging or otherwise transferring twenty percent (20%) or more of 3263 the then outstanding common stock of the Guarantor which results in a change of control of 3264 Guarantor; 3265 (iii) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re- 3266 issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction 3267 which results in a change of Ownership or control of Guarantor; 3268 (iv) any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for 3269 the benefit of creditors, writ of attachment of an execution, being levied against Guarantor, 3270 appointment of a receiver taking possession of any of Guarantor’s tangible or intangible property; 3271 and 3272 ---PAGE BREAK--- Version: 8/30/13 any combination of the foregoing (whether or not in related or contemporaneous transactions) 3273 which has the effect of any transfer or change of Ownership or control of Guarantor. 3274 For purposes of determining Ownership, the constructive Ownership provisions of Section 318(a) of the 3275 Internal Revenue Code of 1986, as in effect on the date here, shall apply, provided that ten percent 3276 (10%) is substituted for fifty percent (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; 3277 and Section 318(a)(5)(C) is disregarded. For purposes of determining Ownership under this 3278 paragraph and constructive or indirect Ownership under Section 318(a), Ownership interest of less than 3279 twenty percent (20%) is disregarded and percentage interests is determined on the basis of the 3280 percentage of voting interest or value which the Ownership interest represents, whichever is greater. 3281 Guaranty absolute and unconditional. The undertakings of Guarantor set forth in this Agreement 3282 are absolute and unconditional, and the Authority is entitled to enforce any or all of those undertakings 3283 against Guarantor without being first required to enforce any remedies or to seek to compel the 3284 Contractor to perform its obligations under the agreement or to seek, or obtain recourse against any 3285 other Party or Parties, including but not limited to the Contractor or any Assignee of the Contractor, who 3286 are, or may be, liable therefore, in whole or in part, irrespective of any cause or state of facts whatever. 3287 Without limiting the generality of the foregoing, the Guarantor expressly agrees that its obligations 3288 under this Guaranty shall not be affected, limited, modified or impaired by any state of facts or the 3289 happening from time to time of an event, other than the payment of monetary obligations by the 3290 Contractor to Authority under the Agreement in accordance with the terms of the Agreement, including, 3291 without limitation, any of the following, each of which is by this Guaranty expressly waived as a defense 3292 to its liability under this Guaranty, except to the extent those defenses would be available to the 3293 Contractor and release, discharge or otherwise offset Contractor’s obligations under the Agreement: 3294 the invalidity, irregularity, illegality or unenforceability, of any defect in or objections to the 3295 Agreement; 3296 any modification or amendment or compromise of or waiver of compliance with or consent to 3297 variation from any of the provisions of the Agreement by the Contractor; 3298 any release of any collateral or lien thereof, including, without limitation, any performance bond; 3299 any defense based upon the election of any remedies against the Guarantor of the Contractor, or 3300 both, including without limitation, any consequential loss by the Guarantor of its right to recover 3301 any deficiency, by way of subrogation or otherwise, from the Contractor or any other Person or 3302 entity; 3303 the recovery of any judgment against the Contractor to enforce any of that collateral or 3304 performance bond; 3305 the Authority or its Assignees taking or omitting to take any of the actions which it or any of that 3306 Assignee is required to take under the Agreement; any failure, omission or delay on the part of the 3307 Authority or its Assignees to enforce, assert or exercise any right, power or remedy conferred on it 3308 ---PAGE BREAK--- Version: 8/30/13 or its Assignees by the Agreement, except to the extent that failure, omission or delay gives rise to 3309 an applicable statute of limitations defense by the Contractor with respect to a specific obligation; 3310 the default or failure of the Guarantor to fully perform any of its obligations set forth in this 3311 Guaranty; 3312 the bankruptcy, insolvency, or similar proceeding involving or pertaining to the Contractor or the 3313 Authority, or any order or decree of a court, trustee or receiver in any proceeding; 3314 in addition to those circumstances described in item any other circumstance which might 3315 otherwise constitute a legal or equitable discharge of a Guarantor or limit the recourse of the 3316 Authority to the Guarantor; 3317 the existence or absence of any action to enforce the Agreement; 3318 subject to the provisions of the Agreement relating to Uncontrollable Circumstances, any present 3319 or future law or order of any government or of any agency thereof, purporting to reduce, amend 3320 or otherwise affect the Agreement or to vary any terms of payment or performance under the 3321 Agreement; 3322 provided that, notwithstanding the foregoing, Guarantor shall not be required to pay any monetary 3323 obligation of Contractor to Authority from which Contractor would be discharged, released or otherwise 3324 excused under the provisions of the Agreement. 3325 Waivers. Guarantor by this Guaranty waives: 3326 Notice of acceptance of this Guaranty and of the creation, renewal, extension and accrual of the 3327 limited financial obligations Guarantied under this Guaranty; 3328 Notice that any Person has relied on this Guaranty; 3329 diligence, demand of payment and Notice of default or nonpayment under this Guaranty or the 3330 Agreement, and any and all other Notices required under the Agreement; 3331 filing of claims with a court in the event of reorganization, insolvency, or bankruptcy of the 3332 Contractor; 3333 any right to require a proceeding first against the Contractor or with respect to any collateral or 3334 lien, including, without limitation, any performance bond, or any other requirement that the 3335 Authority exercise any remedy or take any other action against the Contractor or any other 3336 Person, or in respect of any collateral or lien, before proceeding under this Guaranty; 3337 any demand for performance or observance of, or (ii) any enforcement of any provision of, or 3338 (iii) any pursuit or exhaustion of remedies with respect to, any security (including, with limitation, 3339 any performance bond) for the obligations of the Contractor under the Agreement; any pursuit of 3340 exhaustion of remedies against the Contractor or any other obligor or Guarantor of the 3341 ---PAGE BREAK--- Version: 8/30/13 obligations; and any requirement of promptness or diligence on the part of any Person in 3342 connection therewith; and 3343 to the extent that it lawfully may do so, any and all demands or Notices of every kind and 3344 description with respect to the foregoing or which may be required to be given by any statute or 3345 rule of law, and any defense of any kind which it may now or hereafter have with respect to this 3346 Guaranty or the obligations of the Contractor under the Agreement, except any Notice to the 3347 Contractor required pursuant to the Agreement or Applicable Law which Notice preconditions the 3348 Contractor’s obligation or the defenses listed in Section below. 3349 To the extent that it may lawfully do so, the Guarantor by this Guaranty further agrees to waive, and 3350 does by this Guaranty absolutely and irrevocably waive and relinquish, the benefit and advantage of, 3351 and does by this Guaranty covenant not to assert, any appraisement, valuation, stay, extension, 3352 redemption or similar laws, now or at any time hereafter in force, which might delay, prevent or 3353 otherwise impede the due performance or proper enforcement of this Guaranty, the Agreement, or the 3354 obligations of the Contractor under the Agreement, and by this Guaranty expressly agrees that the right 3355 of the Authority under this Guaranty may be enforced notwithstanding any partial performance by the 3356 Contractor or the Guarantor, or the foreclosure upon any security (including, with limitation, any 3357 performance bond) given by the Contractor for its performance of any of its obligations under the 3358 Agreement. 3359 Agreements between Authority and Contractor; Waivers by Authority. The Guarantor agrees that, 3360 without the necessity for any additional endorsement or Guaranty by or any reservation of rights against 3361 Guarantor and without any further assent by Guarantor, by mutual agreement between the Authority 3362 and Contractor, the Authority and Contractor may, from time to time 3363 renew, modify, or compromise the liability of the Contractor for or upon any of the obligations by 3364 this Guaranty Guarantied; or 3365 consent to any amendment or change of any terms of the Agreement; or 3366 accept, release, or surrender any security (including, without limitation, any performance bond), 3367 or 3368 grant any extensions or renewals of the obligations of the Contractor under the Agreement, and 3369 any other indulgence with respect thereto, and to effect any release, compromise or settlement 3370 with respect thereto, 3371 all without releasing or discharging the liability of Guarantor under this Guaranty. 3372 The Guarantor further agrees that the Authority or any of its Assignees shall have and may exercise full 3373 power in its uncontrolled discretion, without in any way affecting the liability of the Guarantor under 3374 this Guaranty, to waive compliance with and any default of the Contractor under, the Agreement. 3375 ---PAGE BREAK--- Version: 8/30/13 Continuing Guaranty. This Guaranty is a continuing Guaranty and shall continue to be effective or 3376 be reinstated, as applicable, if at any time any payment of any of the obligations under this Guaranty is 3377 rescinded or is otherwise required to be returned upon reorganization, insolvency or bankruptcy of the 3378 Contractor or Guarantor or otherwise, all as though payment had not been made. 3379 Defenses. Notwithstanding any provision in this Guaranty to the contrary, the Guarantor may 3380 exercise or assert any and all legal or equitable rights, defenses, counter claims or affirmative defenses 3381 under the Agreement or Applicable Law which the Contractor could assert against any Party seeking to 3382 enforce the Agreement against the Contractor, and nothing in this Guaranty shall constitute a waiver 3383 thereof by the Guarantor. 3384 Payment of costs of enforcing Guaranty. Guarantor agrees to pay all costs, expenses and fees, 3385 including all reasonable attorney’s fees, which may be incurred by the Authority in enforcing this 3386 Guaranty following the default on the part of the Guarantor under this Guaranty whether the same is 3387 enforced by suit or otherwise. 3388 (10) Enforcement. The terms of this Guaranty may be enforced as to any one or more breaches 3389 either separately or cumulatively. 3390 (11) Remedies cumulative. No remedy in this Agreement conferred upon or reserved to the Authority 3391 under this Guaranty is intended to be exclusive of any other available remedy or remedies, but each and 3392 every remedy is cumulative and is in addition to every other remedy given under the Guaranty and the 3393 Agreement or in this Agreement after existing at law or in equity or by statute. 3394 (12) Severability. The invalidity or unenforceability of any one or more phrases, sentences or 3395 clauses in this Guaranty contained shall not affect the validity or enforce ability of the remaining 3396 portions of this Guaranty, or any part thereof. 3397 (13) Amendments. No amendment, change, modification or termination of this Guaranty is made 3398 except upon the written consent of Guarantor and the Authority. 3399 (14) Term. The obligations of the Guarantor under this Guaranty shall remain in full force and effect 3400 until all monetary obligations of the Contractor under the Agreement shall have been fully performed 3401 or provided for in accordance with the Agreement, or (ii) the discharge, release or other excuse of those 3402 obligations in accordance with the terms of the Agreement. 3403 (15) No set-offs 3404 By Guarantor. The obligation of Guarantor under this Guaranty shall not be affected by any set-off, 3405 counterclaim, recoupment, defense or other right that Guarantor may have against the Authority on 3406 account of any claim of the Guarantor against the Authority; provided that Guarantor reserves the right 3407 to bring independent claims not arising from the Agreement against the Authority so long as any claims 3408 shall not be used to set-off or deduct from any claims which the Authority may have against the 3409 Guarantor arising from this Guaranty. 3410 ---PAGE BREAK--- Version: 8/30/13 By Contractor. The obligation of Guarantor under this Guaranty is subject to any set-off, counterclaim, 3411 recoupment, defense or other right that the Contractor may assert pursuant to the Agreement, if any, 3412 but the obligation of Guarantor under this Guaranty shall not be subject to any set-off, counterclaim, 3413 recoupment, defense or other right that the Contractor may assert independently of and outside the 3414 Agreement. 3415 (16) Warranties and representations. The Guarantor warrants and represents that as of date of 3416 execution of this Guaranty: 3417 The Guarantor has the power, authority and legal right to enter into this Guaranty and to perform 3418 its obligations and undertakings under this Guaranty, and the execution, delivery and performance 3419 of this Guaranty by the Guarantor have been duly authorized by all necessary corporate and 3420 shareholder action on the part of the Guarantor, (ii) have the requisite approval of all federal, 3421 State and local governing bodies having jurisdiction or authority with respect thereto, (iii) do not 3422 violate any judgment, order, law or regulation applicable to the Guarantor, (iv) do not conflict with 3423 or constitute a default under any agreement or instrument to which the Guarantor is a party or by 3424 which the Guarantor or its assets may be bound or affected, and do not violate any provision of 3425 the Guarantor’s articles or certificate of incorporation or by-laws; 3426 This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, 3427 valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance 3428 with its terms; and 3429 There are no pending or, to the knowledge of the Guarantor, threatened Actions or proceedings 3430 before any court or administrative agency which would have a material adverse effect on the 3431 financial condition of the Guarantor, or the ability of the Guarantor to perform its obligations or 3432 undertakings under this Guaranty. 3433 (17) No merger; no conveyance of assets. Guarantor agrees that during the term of this Guaranty in 3434 accordance with Section (14) Guarantor shall not consolidate with or merge into any other corporation 3435 where the shareholders of the Guarantor yield control of the Guarantor, or a majority interest in the 3436 Guarantor, to the newly formed corporation, or convey, transfer or lease all or substantially all of its 3437 properties and assets to any Person, firm, joint venture, corporation and other entity, unless the 3438 Authority consents thereto in accordance with Section above. 3439 (18) Counterparts. This Guaranty may be executed in any number of counterparts, some of which may 3440 not bear the signatures of all Parties to this Guaranty. Each counterpart, when so executed and 3441 delivered, is deemed to be an original and all counterparts, taken together, shall constitute one and the 3442 same instrument; provided, however, that in pleading or proving this Guaranty, it shall not be necessary 3443 to produce more than one copy (or sets of copies) bearing the signature of the Guarantor. 3444 (19) Notices. All notices, instructions and other communications required or permitted to be given to 3445 or made upon any Party to this Guaranty is in writing, and is given in the manner and to the addresses 3446 provided in the Agreement. 3447 ---PAGE BREAK--- Version: 8/30/13 (20) Separate suits. Each and every payment default by Contractor under the Agreement shall give rise 3448 to a separate cause of action under this Guaranty, and separate suits may be brought under this 3449 Guaranty by the Authority or its Assignees as each cause of action arises. 3450 (21) Headings. The Section headings appearing in this Agreement are for convenience only and shall not 3451 govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this 3452 Guaranty. 3453 (22) Entire Agreement. This Guaranty constitutes the entire agreement between the Parties to this 3454 Guaranty with respect to the transactions contemplated by this Guaranty. Nothing in this Guaranty is 3455 intended to confer on any Person other than the Guarantor, the Authority and their permitted 3456 successors and Assigns under this Guaranty any rights or remedies under or by reason of this Guaranty. 3457 (23) Personal Liability. It is understood and agreed to by the Authority that nothing contained in this 3458 Agreement shall create any obligation or right to look to any director, officer, employee or stockholder 3459 of the Guarantor (or any Affiliate thereof) for the satisfaction of any obligations under this Guaranty, 3460 and no judgment, order or execution with respect to or in connection with this guaranty is taken against 3461 any director, officer, employee or stockholder. 3462 (24) Events of Default. Each of the following shall constitute an event of default under this Guaranty: 3463 Failure to fulfill payment of guaranty. Guarantor fails to fulfill full and timely payment of any 3464 guaranty under this Guaranty, including Section and the failure continues for five Calendar 3465 Days after Notice (which is deemed given upon receipt of registered or certified mailing by U.S. Postal 3466 Service or of invoiced Commercial Service) (Hereunder defined as Notice) has been given to the 3467 Guarantor by the Authority; fails to perform any of its obligations under this Guaranty or engages in 3468 any acts prohibited under this Guaranty other than failures itemized below, and fails to cure that 3469 failure or conduct within thirty (30) Calendar Days; 3470 Breach of Guaranty. The Guarantor fails to observe and perform any covenant, condition or 3471 agreement of this Guaranty, other than any failures listed explicitly in this Section, and that failure 3472 continues for more than thirty (30) Calendar Days after Notice has been given the Guarantor by the 3473 Authority; 3474 Failure to give Notice of proposed Assignment. The Guarantor fails to give Authority notice in 3475 accordance with Section (19) within ten (10) Calendar Days of the first to occur of: 3476 Contractor or any Affiliate issuing a press release as to any proposed Assignment, (within the 3477 meaning of Section or consolidation, merger, conveyance, transfer or lease described in 3478 paragraph of this Section (24) or; 3479 (ii) the filing with the Securities and Exchange Commission of a Form 8-K or other filing with 3480 respect to a memorandum of intent or an agreement and plan thereof. 3481 (paragraphs and (ii) together defined as Change Notice); 3482 ---PAGE BREAK--- Version: 8/30/13 Consolidation, merger; conveyance of assets. The Guarantor consolidates, merges or conveys, 3483 transfers or leases assets in Violation of Section (17) despite the Authority Board of Directors action 3484 following Change Notice in preceding paragraph withholding or denying Authority consent, and on 3485 or before fifteen (15) Calendar Days thereafter, does not provide Authority with a substitute 3486 Guarantor satisfactory to Authority in Authority’s sole discretion; 3487 Bankruptcy, insolvency, liquidation. Guarantor files a voluntary claim for debt relief under any 3488 applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or 3489 shall consent to the appointment of or taking of possession by a receiver, liquidator, Assignee, trustee, 3490 custodian, administrator (or similar official) of Guarantor for any substantial part of Guarantor's 3491 operating assets or any substantial part of Guarantor's property, or shall make any general Assignment 3492 for the benefit of Guarantor's creditors, or shall fail generally to pay Guarantor's debts as they become 3493 due or shall take any action in furtherance of any of the foregoing. 3494 A court having jurisdiction enters a decree or order for relief in respect of the Agreement, in any 3495 involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or 3496 hereafter in effect, or Guarantor consents to or fails to oppose any proceeding, or any court enters a 3497 decree or order appointing a receiver, liquidator, Assignee, custodian, trustee, sequestrator (or similar 3498 official) of the Guarantor or for any substantial part of the Guarantor's operating equipment or assets, 3499 or orders the winding up or liquidation of the affairs of the Guarantor; 3500 Breach of representations or warranties. Any representation or warranty of Guarantor is untrue 3501 as of the date thereof; Guarantor knowingly makes, causes to be made or condones the making of any 3502 false entry in its books, accounts, Records, and reports under this Guaranty. 3503 Upon any Event of Default the Authority may proceed first and directly against the Guarantor under 3504 Guaranty without proceeding against or exhausting any other remedies which it may have. The 3505 Guarantor acknowledges that any Contractor Default comprises a Default under the Agreement. 3506 3507 ---PAGE BREAK--- Version: 8/30/13 IN WITNESS WHEREOF Guarantor has executed this instrument the day and year first below written. 3508 {Insert appropriate signature block} 3509 Proper notarial acknowledgment of execution by Guarantor must be attached. 3510 Chairman, president or vice-president, and secretary, assistant secretary, CFO or assistant treasurer, 3511 must sign for corporations. Otherwise, the corporation must attach a resolution certified by the 3512 secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the 3513 corporation. 3514 ---PAGE BREAK--- Version: 8/30/13 EXHIBIT 10 3515 CORPORATE SECRETARY'S CERTIFICATE 3516 3517 3518 The undersigned, being the Secretary of a 3519 Company Name 3520 California corporation (“the Company”), do hereby certify that the following resolution was adopted by 3521 the Board of Directors of the Company and that such resolution has not been amended, modified or 3522 rescinded and is in full force and effect as of the date hereof: 3523 3524 RESOLVED, that be, and hereby is, authorized to 3525 Name of Designated Representative 3526 execute by and on behalf of the Company the Agreement between the West Contra Costa Integrated 3527 Waste Management Authority and the Company for Post Collection Services and any and all other 3528 agreements, instruments, documents or papers, as he/she may deem appropriate or necessary, 3529 pertaining to or relating to such Agreement, and that any such action taken to date is hereby ratified 3530 and approved. 3531 3532 Dated: 3533 3534 3535 Signature 3536 3537 3538 Title 3539