Document elcerrito_gov_doc_0f92e27576

AGENDA BILL Agenda Item No. 7(B) Date: September 17, 2013 To: El Cerrito City Council From: Garth Schultz, Operations + Environmental Services Division Manager Subject: Proposed Agreement between the City of El Cerrito and Republic Services, Inc. for Post-Collection Processing and Landfill Disposal Service ACTION REQUESTED Adopt a resolution approving the proposed Agreement between the City of El Cerrito (City) and West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., Golden Bear Transfer Services, Inc., and Keller Canyon Landfill Company, Inc. – all subsidiaries of Republic Services, Inc. (hereafter jointly referred to as Republic) – for Post-Collection Processing and Landfill Disposal Service, effective January 1, 2014 through December 31, 2025. BACKGROUND The City is a member of the West Contra Costa Integrated Waste Management Authority (Authority). The Authority is a joint powers authority that manages many aspects of solid waste for the west county cities of El Cerrito, Richmond, San Pablo, Pinole, Hercules, and unincorporated sections of Contra Costa County. The Authority currently contracts with Republic for post-collection services on behalf of its member agencies. These services include: recyclables processing; composting; operation of the Household Hazardous Waste facility, and; transfer, transportation and land-filling of solid waste. The current post-collection services agreement expires December 31, 2013. In 2012, the Authority conducted a competitive Request for Qualifications and Statement of Interest (SOI) procurement process for post-collection processing and disposal services, effective January 1, 2014. As a result of the SOI process, the Authority received six proposals from qualified firms for the needed post-collection services. Unlike the other proposers, Republic’s proposal included significant improvements to collection services for the member agencies served by Republic-owned Richmond Sanitary Services (RSS). RSS provides collection services to all member agencies except El Cerrito, whose collection services are provided by East Bay Sanitary Company (EBS) and the City itself. ---PAGE BREAK--- Agenda Item No. 7(B) Page 2 Because many of the services proposed by Republic provided value specific to the RSS service area, El Cerrito entered into independent negotiations with Republic for the provision of post-collection services for the City. DISCUSSION City staff and R3 Consulting Group, Inc. (R3) met with Republic (periodically from January through August 2013) to develop the proposed Agreement between the City and Republic for Post-Collection Processing and Landfill Disposal Service (Agreement). In negotiating the Agreement, staff and R3 worked with Republic to ensure that the proposed Agreement provides: • Post-collection services competitive with alternatives that might have been available to the City absent the Authority’s right to direct El Cerrito’s waste1 • New and innovative services that will divert more waste materials from landfills, consistent with El Cerrito’s Strategic Plan and Climate Action Plan • Rates that will reduce (and potentially eliminate) the need for adjustments to the total solid waste service rates paid by El Cerrito ratepayers in 2014 Competitive with Potential Alternatives As stated earlier, one of the primary reasons that the Authority Board selected Republic as the post-collection service provider for the Authority member agencies was that Republic’s proposal included a number of additional collection services for the member agencies served by RSS. These additional services will provide significant benefit to member agencies, both in terms of increasing diversion from landfill as well as bringing curbside collection services in those areas up to the standards already enjoyed by El Cerrito and most other Bay Area cities. In providing these additional services, Republic’s bid for post-collection services was rightfully determined by the Board to be the most competitive proposal arising out of the post-collection procurement process. Since El Cerrito has a different solid waste collector than the other member agencies, the City does not stand to benefit from the additional collection services proposed by Republic. As such, it was necessary for the City to assess the competitiveness of Republic’s proposal without considering the additional collection services promised to the other member agencies. In order to determine competitiveness, El Cerrito staff and R3 analyzed what it would realistically cost to direct El Cerrito’s waste streams to the other facilities proposed during the Authority’s procurement process (as well as a few others that did not submit proposals). While this analysis does not represent the actual costs as quoted by the proposers – because it takes into account a variety of factors over which the proposers 1 As a member agency of the Authority, El Cerrito is required to direct its garbage, green waste, debris box and household hazardous waste (HHW) to the post-collection service provider selected by the Authority. ---PAGE BREAK--- Agenda Item No. 7(B) Page 3 have no control2 – it is a realistic assessment of the actual expenses that would be incurred if the City were to pursue other post-collection alternatives. Below is a summary of the best performing scenarios, compared to Republic’s proposal: Post-Collection Scenario Per Ton Rate Current 2013 with Republic $99.06 (actual) East Bay Sanitary3 Alternate $96.61 (estimated) Waste Management4 Alternate $91.30 (estimated) Proposed 2014 with Republic $90.30 (actual) Berkeley Transfer5 Station Alternate $86.83 (estimated) As shown in the table above, the $90.30 per ton rate negotiated with Republic is cheaper than is currently paid to Republic (for a lesser set of services) and is also cheaper than the lowest probable rates the City’s ratepayers would pay in two out of three alternative scenarios. It is important to note that pursuing any of the non-Republic alternatives would require the City to withdraw from the Authority (because the Authority retains the right to direct El Cerrito’s waste stream), which would entail a significant amount of staff time and could cost upwards of $150,000 in onetime costs. Additionally, though the estimated per ton rate for directly hauling waste to the Berkeley Transfer Station appears to be less than Republic’s proposal, there is a substantial amount of legal and political uncertainty inherent in this scenario, which would take more money and staff time to resolve. Finally, even if these factors could be resolved without increasing the cost of service, it would still not include many of the additional services that Republic will provide to the City in its base rate. In summary, the proposed Agreement with Republic is competitive compared to all other alternatives that are reasonably available to the City of El Cerrito. The Agreement provides for cheaper post-collection services – and more of them – than all other proposals received by the Authority, as well as most other alternatives not evaluated by the Authority. Though one potential alternative post-collection scenario (Berkeley 2 Including: the cost differential of directly hauling waste to facilities other than Republic, some of which would require doubling or tripling the current one way hauling distance; differences in the cost of government fees on solid waste, and; differences in the cost of handling HHW outside of the Authority. 3 East Bay Sanitary gathered independent pricing for post-collection services at local facilities and submitted those to the City. 4 Waste Management was the second best performing proposer in the Authority’s procurement process, and was selected by the Board as the alternate in the event that negotiations with Republic stalled. 5 City staff discussed this alternative in some detail with Berkeley staff for the purposes of comparison only. The figures represented are not intended to represent an official bid for post-collection services. ---PAGE BREAK--- Agenda Item No. 7(B) Page 4 Transfer Station) initially appears to be cheaper, in actuality the costs of pursuing that alternative, weighed against the greater scope of services offered by Republic, make pursuing that alternative an uncompetitive proposition given Republic’s proposal. New and Innovative Services In addition to basic post-collection services (including disposing garbage, composting green waste, and handling HHW) the proposed Agreement with Republic includes a number of additional services intended to facilitate increased diversion in El Cerrito. Republic’s proposal includes processing mixed construction and demolition (C&D) material (such as dirt, sand, rock, concrete, bricks, plaster, carpeting, fixtures, wood, etc.) from building projects in El Cerrito at a combined landfill diversion rate of 70%. While this service has been previously available to El Cerrito to some extent, the proposed service is more inclusive in scope, streamlined, and includes a higher diversion rate than it did previously. Having an easy-to-use mixed C&D process will improve the ability for larger building projects to comply with mandated diversion requirements under the CalGreen building codes, and will make it much easier for smaller projects to achieve significant levels of diversion without the need to source separate materials into a number of smaller bins. City staff estimates that this new service will prevent about 250 to 500 tons of El Cerrito waste from going to the landfill per year. Republic is offering commercial “dry waste” processing, which is a relatively new process that has recently been pioneered in San Jose. Dry waste processing achieves high levels of diversion for waste streams that tend to have significant barriers to source separation (usually certain business sectors and larger multi-family dwellings). In dry waste processing the solid waste subscriber is only required to separate their waste into two containers, one for wet materials (like food scraps) and another for everything else (the remaining materials, which includes both dry garbage and recyclables). Once put into operation, EBS will collect dry waste in a separate route of specially selected subscribers (those for which the standard methods of separation have proved to be challenging) and Republic will separate out the recyclable items at a minimum diversion rate of 50%. While this process is certainly not the end-all-be-all for El Cerrito’s diversion goals, it will be an important tool to diverting more material in sectors that have historically been hard to reach, while annually diverting 200 to 400 from landfill. The proposed Agreement includes a special provision for Republic and the City to work cooperatively to develop additional and enhanced diversion programs for the public schools in El Cerrito. Unlike the rest of El Cerrito, the public schools receive solid waste collection service from RSS and recycling education services from the Authority. As such, there has not been a clear avenue for the City to advocate for enhanced solid waste management in El Cerrito public schools. As a result, the diversion programs in our public schools aren’t fully aligned with the diversion programs experienced and expected elsewhere in the City. This Agreement provides the City with the opportunity to work more closely with Republic and the West Contra County Unified School District to facilitate enhanced diversion programs in the public schools. ---PAGE BREAK--- Agenda Item No. 7(B) Page 5 Finally, Republic has committed to performing annual waste stream audits in order to help the City determine how successful current diversion programs are, while laying the groundwork for developing future programs to divert more materials. 2014 Rates The 2014 per ton rate of $90.30 in the proposed Agreement, which is compensation for all services provided by Republic, will cost El Cerrito ratepayers approximately $1,029,600 in calendar year 2014 (assuming projected tonnage of 11,402 tons). This is approximately $100,000 less than ratepayers will pay during calendar year 2013, while covering the increased levels of service discussed in the previous section of this report. In absolute terms, this means that El Cerrito ratepayers will pay about 9% less for post- collection services in the coming year than they will this year. Though it is too early to state with certainty what the 2014 total rates will be, because the Council won’t decide on adjustments to the other two components of the total rate6 until November, the 9% reduction in post-collection services will help reduce any potential increases to the total rate. City staff is currently modeling how the 2014 total rates might change after taking into account all inputs (not just the post-collection agreement) and is relatively certain that total impact to the rates will be between 0% and 1% in 2014. STRATEGIC PLAN CONSIDERATIONS Approval of the proposed Agreement would help fulfill Goal F – Foster environmental sustainability citywide – as detailed in the City of El Cerrito Strategic Plan, adopted March 2013. Specifically, approval of the Agreement would contribute to achieving the following strategies: • Promote environmental leadership by working with the School District and other government entities. Approval of the proposed Agreement would give the City a new avenue for pursuing enhanced diversion programs in partnership with the District and Republic. • Implement the City’s Climate Action Plan. Approval of the proposed Agreement would contribute to Waste Goal #1 of the Plan (Reduce waste going to landfill to 4,000 tons per year by 2020 and 2,000 tons per year by 2035) by: o Maximizing participation in waste reduction curbside services per Objective W-1.1 of the Climate Action Plan, via waste characterizations, specialized collection approaches (e.g. dry waste processing), and expanded outreach programs for schools. o Reducing landfill waste from Construction and Demolition per Objective W-1.3 of the Climate Action Plan, via improved C&D processing. 6 Namely, East Bay Sanitary collection rates and the City’s Integrated Waste Management Fee. ---PAGE BREAK--- Agenda Item No. 7(8) ENVIRONMENTAL CONSIDERATIONS As discussed elsewhere in this report, the proposed Agreement will divert more materials away from landfills to beneficial uses such as recycling and composting, which will help the City achieve its waste diversion goals in the Climate Action Plan. While El Cerrito sent over 7,670 tons of waste to landfill in 2012, staff estimates that waste to landfill could decrease by about 800 tons in 2014 (a decrease of more than 10%). Furthermore, this will be made possible without building additional facilities, without putting more collection trucks into operation, and without increasing the number of miles travelled by collection trucks (and as such, is considered to be categorically exempt from the California Environmental Quality Act (Public Resources Code 21000 et seq., "CEQA," and 14 Cal. Code Reg. 15000 et seq., "CEQA Guidelines") under the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (CEQA Guidelines § 15061(b)(3). Additionally, approval of the Agreement is categorically exempt from CEQA under CEQA Guidelines Sections 15301 (Existing Facilities) and 15308 (Actions by Regulatory Agencies for the Protection of the Environment). Though not certain, it is possible that some negative environmental impacts could be incurred if the City were to choose a different post-collection service provid~r, because EBS collection vehicles would need to drive farther to reach many of the alternative facilities. Thus, while approving the proposed Agreement will produce modest (yet important) environmental benefits, those benefits are made greater when comparing them against the uncertain environmental impacts ofthe alternatives. FINANCIAL CONSIDERATIONS Approving the proposed Agreement may reduce the City's receipts from the East Bay Sanitary Franchise Fee, which is 12% of collection and post-collection revenues. Staff currently projects a worst-case scenario of a loss of about $10,000 in Franchise Fee revenues in 2014 as a result of approving the Agreement. If Franchise Fee revenues are reduced in 2014, they should rebound in future years as agreed-upon adjustments to collection and post-collection revenues take effect. LEGAL CONSIDERATIONS The City Attorney has reviewed the proposed Agreement and found that legal considerations have been addressed. Scott Hanin, City Manager Attachments: 1. Accompanying Resolution 2. Proposed Agreement between the City and West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., Golden Bear Transfer Services, Inc., and Keller Canyon Landfill Company, Inc. for Post-Collection Processing and Landfill Disposal Service Page 6 ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 1 RESOLUTION 2013–XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EL CERRITO TO APPROVE THE AGREEMENT BETWEEN THE CITY OF EL CERRITO AND WEST COUNTY RESOURCE RECOVERY, INC., WEST CONTRA COSTA SANITARY LANDFILL, INC., GOLDEN BEAR TRANSFER SERVICES, INC., AND KELLER CANYON LANDFILL COMPANY, INC. FOR POST-COLLECTION PROCESSING AND LANDFILL DISPOSAL SERVICE WHEREAS, Article IX, section 7 of the Constitution of the State of California empowers the City of El Cerrito (City) to make and enforce within its limits all sanitary and other ordinances and regulations not in conflict with general laws for the management of solid waste generated within the City; and WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (Act) (California Public Resources Code Section 40000 et seq.), has declared that it is in the public interest to authorize and require local agencies to make adequate provisions for solid waste management within their jurisdiction; and WHEREAS, Public Resources Code section 40059 authorizes the City to provide for all aspects of solid waste handling which are of local concern, including, but not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste handling services, including post-collection services; and WHEREAS, the City is a Member Agency of the West Contra Costa Integrated Waste Management Authority (Authority); and WHEREAS, Authority Member Agencies entered into a Joint Exercise of Powers Agreement dated April 2, 1991, (JPA Agreement), which JPA Agreement was amended by the parties thereto in March 6, 1995; and WHEREAS, Republic Services Inc. (Republic), by means of the services and facilities of West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., Golden Bear Transfer Services, Inc., and Keller Canyon Landfill Company, Inc. currently provides Post-Collection Services to the City and Authority through certain agreements between Republic and the Authority; and WHEREAS, these agreements for Post-Collection Services are expiring effective December 31, 2013; and WHEREAS, in October 2012, the Authority solicited Requests for Qualifications and Statements of Interest from companies in the solid waste and recycling industry for the provision of these Post-Collection Services. Republic submitted its response and after consideration of the numerous proposals received, on December 12, 2012, the Authority Board of Directors directed Authority staff to negotiate with Republic for the provision of these services; and ---PAGE BREAK--- Page 2 WHEREAS, the Authority, including the City as a Member Agency thereof, selected Republic to provide for the Post-Collection Services, after undertaking a competitive request for proposals process and having determined that Republic’s proposal provides the best overall value for the Authority rate payers, and that Republic has the requisite experience, qualifications, reputation, and capacity to carry out such services; and WHEREAS, City staff actively participated in analyzing all responses received by the Authority during the Authority’s competitive request for proposals process; and WHEREAS, the City has determined in accordance with its constitutional and statutory authority that it is in the best interests of the City to negotiate and enter into an Agreement for Post-Collection Services with Republic (Agreement), separate and apart from the Authority’s agreement with Republic; and WHEREAS, pursuant to its police powers, obtaining a long-term commitment for processing and disposal of solid waste generated within the City via the Agreement is in the best interests of the public health, safety and wellbeing of the citizens of the City and is fiscally prudent; and WHEREAS, City staff and R3 Consulting Group, Inc. (R3) have thoroughly reviewed the Agreement to ensure that it is competitive with potential alternatives that would have been available to the City had the City not participated in the Authority’s competitive request for proposals process; and WHEREAS, City staff and R3 agree that the Agreement between the City and Republic, as the Authority’s selected provider of Post-Collection Services, represents the best balance of services, cost, and risk to the City for the provision of these services, as compared to City staff’s analysis of the potential alternatives; and WHEREAS, the Agreement provides for increased diversion from landfills via new and innovative services including construction and demolition debris recycling, commercial dry waste recycling, improved public school recycling programs, and annual waste audits of El Cerrito’s waste streams; and WHEREAS, the Post-Collection Services provided to the City via the Agreement in 2014 will cost El Cerrito rate payers 9% less than they paid for a lesser set of services in 2013, and; WHEREAS, this reduction in the cost of Post-Collection Services in 2014 will reduce (and potentially eliminate) the need for adjustments to the total solid waste services rates paid by El Cerrito rate payers in 2014; WHEREAS, the City Council finds that approval of the Agreement is exempt from the California Environmental Quality Act (Public Resources Code 21000 et seq., “CEQA,” and 14 Cal. Code Reg. 15000 et seq., “CEQA Guidelines”) under the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (CEQA Guidelines § 15061(b)(3). Additionally, approval of the Agreement is categorically exempt from CEQA under CEQA Guidelines ---PAGE BREAK--- Page 3 Sections 15301 (Existing Facilities) and 15308 (Actions by Regulatory Agencies for the Protection of the Environment). NOW THEREFORE BE IT RESOLVED, by the City Council of the City of El Cerrito, that it hereby approves the Agreement between the City of El Cerrito and West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., Golden Bear Transfer Services, Inc., and Keller Canyon Landfill Company, Inc. for Post-Collection Processing and Landfill Disposal Service. BE IT FURTHER RESOLVED, that this Resolution shall become effective immediately upon passage and adoption. I CERTIFY that at a regular meeting on September 17, 2013 the City Council of the City of El Cerrito passed this Resolution by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on September X, 2013. Cheryl Morse, City Clerk APPROVED: Gregory B. Lyman, Mayor ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 1 of 26 Agreement Between the City of El Cerrito and West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., Golden Bear Transfer Services, Inc., and Keller Canyon Landfill Company, Inc. for Post-Collection Processing and Landfill Disposal Service This Agreement is entered into by and between the City of El Cerrito, a municipal corporation (“City”) and West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., Golden Bear Transfer Services, Inc., and Keller Canyon Landfill Company, Inc. (operating subsidiaries of Republic Services, Inc. and hereinafter collectively referred to as "Contractor") for the Transfer, Transport, Recycling, Composting, and Disposal (Post-Collection Services) of Solid Waste, Recyclable Materials, Organic Materials, and Construction and Demolition Materials from the City effective January 1, 2014. Recitals WHEREAS; Article IX, section 7 of the Constitution of the State of California empowers the City to make and enforce within its limits all sanitary and other ordinances and regulations not in conflict with general laws for the management of Solid Waste generated within the City; and WHEREAS; the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (Act) (California Public Resources Code Section 40000 et seq.), has declared that it is in the public interest to authorize and require local agencies to make adequate provisions for Solid Waste management within their jurisdiction; and WHEREAS, Public Resources Code section 40059 authorizes the City to provide for all aspects of Solid Waste handling which are of local concern, including, but not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 2 of 26 location, and extent of providing Solid Waste handling services; and WHEREAS, the City is a Member Agency of the West Contra Costa Integrated Waste Management Authority (“Authority”); and WHEREAS, Member Agencies entered into a Joint Exercise of Powers Agreement dated April 2, 1991, (“JPA Agreement”), which JPA Agreement was amended by the Parties thereto in March 6, 1995; and WHEREAS, on January 1, 1994, the Authority and West County Resource Recovery, Inc. entered into a Service Agreement for Operation of an Integrated Resource Recovery Facility (“IRRF Service Agreement”); and WHEREAS, Contractor, by means of the services and facilities of West County Resource Recovery, Inc., West Contra Costa Sanitary Landfill, Inc., Golden Bear Transfer Services, Inc., and Keller Canyon Landfill Company, Inc. currently provides Post-Collection Services to the City and Authority through certain agreements between Contractor and the Authority; and WHEREAS, these agreements for Post-Collection Services are expiring effective December 31, 2013; and WHEREAS, in October 2012, the Authority solicited Requests for Qualifications and Statements of Interest from companies in the Solid Waste and recycling industry for the provision of these Post-Collection Services. Contractor submitted its response and after consideration of the numerous proposals received, on December 12, 2012, the Authority Board of Directors directed Authority staff to negotiate with Contractor for the provision of these services; and WHEREAS, the Authority, including City as a Member Agency thereof, selected Contractor to provide for the Post-Collection Services, after undertaking a competitive request for proposals process and having determined that Contractor’s proposal provides the best overall value for the Authority rate payers, and that Contractor has the requisite experience, qualifications, reputation, and capacity to carry out such services; and WHEREAS, the City has determined in accordance with its constitutional and statutory authority that it is in the best interests of the City to negotiate and enter into a separate agreement for Post-Collection Services with Contractor, separate and apart from the Authority’s agreement with Contractor; and WHEREAS, pursuant to its police powers, obtaining a long-term commitment for long term processing and disposal of Solid Waste generated within the City in accordance with this Agreement is in the best interests of the public health, safety and wellbeing of the citizens of the City and is fiscally prudent; and WHEREAS, this Agreement will preserve and enhance the environment within the City of El Cerrito and is exempt from the requirements of California Environmental Quality Act ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 3 of 26 (“CEQA”), as amended, without limitation, pursuant to Section 15061(b)(3) or Section 15308 or 150301 of the CEQA Guidelines. NOW, THEREFORE, in consideration of the mutual promises, covenants, guaranties, and conditions contained in this Agreement and for other good and valuable consideration, the Parties agree as follows: SECTION 1 DEFINITIONS For purposes of this Agreement, unless a different meaning is clearly required, capitalized terms used in this Agreement shall have the meanings specified in Exhibit 1 to this Agreement which is attached hereto and incorporated by reference. SECTION 2 TERM OF AGREEMENT 2.1 Effective Date This Agreement becomes effective on the date that both Parties have executed the Agreement. 2.2 Term The Term of this Agreement and providing of services as outlined herein shall commence on January 1, 2014 and shall expire on December 31, 2025. Nothing herein shall preclude the Parties from mutually agreeing to extend the Term of this Agreement by written agreement. 2.3 Agreements Superseded This Agreement executed between Contractor and the City shall completely and fully supersede and invalidate any and all prior or existing contracts, agreements and any amendments or understandings to which the City is a Party as a member agency of the West Contra Costa Integrated Waste Management Authority and Contractor (or specific entities of Contractor), including the 1994 IRRF Service Agreement; the 2005 Agreement for the Transfer and Transportation of Franchised Solid Waste and County Area Waste from the Golden Bear Transfer Station; the 2010 Agreement for Organic Material Processing and Composting Services; the 2010 Agreement for Disposal of Solid Waste (Keller Canyon Landfill); and the 2013 Amendment to Extend the Terms of Certain Service Agreements with the Authority. Nothing herein shall affect the validity or scope of any Solid Waste and/or Recycling Collection Franchise Agreement to which Richmond Sanitary Service, Inc., an Affiliate of Contractor, is a Party. Nothing in this Agreement is intended to or shall affect the existing Collection Franchise Agreement between East Bay Sanitary Company, Inc. and the City. Furthermore, nothing herein shall or is intended to apply to or affect the exclusive franchise agreement between the City of Richmond and Contractor (Golden Bear Transfer Services, Inc.) in any way. This Agreement contains the entire Agreement between the Parties with respect to the rights and responsibilities of the Parties under this Agreement, including the enforcement and administration of this Agreement. The Parties agree that there are no other agreements or understandings, whether written or oral, that govern the Services provided herein. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 4 of 26 SECTION 3 OBLIGATIONS OF THE CITY 3.1 Direction of Waste Stream The City shall direct all Solid Waste collected by the City’s Franchised Collector to be delivered to the Approved Transfer Station for the term of this Agreement. The City shall direct all Organic Materials collected by the City’s Franchised Collector to be delivered to and Processed at the Approved Organic Materials Processing Facility. The City shall direct all Dry Materials collected by the City’s Franchised Collector to be delivered to and Processed at the Approved Dry Materials Processing Facility. The City shall direct all Construction and Demolition (C&D) Materials collected by the City’s Franchised Collector to be delivered to and Processed at the Approved Construction and Demolition Materials Processing Facility. The City may direct Recyclable Materials to the Approved Recyclable Materials Processing Facility for Processing at the then current rebate rate paid to the other West County member agencies of the Authority for the curbside collected material. 3.2 Compensation to Contractor City agrees to pay Contractor for the Services in accordance with the provisions of Section 5 of this Agreement. SECTION 4 OBLIGATIONS OF CONTRACTOR 4.1 Scope and Delivery of Services Solid Waste Disposal The Contractor shall receive the Solid Waste collected under the City’s Collection Franchise Agreement and directed to the Approved Transfer Facility by the City. Contractor shall transport all Solid Waste from the Approved Transfer Station to the Landfill or Approved Processing Facility. Organic Materials Processing Contractor shall receive, accept, and Process Organic Materials collected under the City’s Collection Franchise Agreement at the Approved Organic Materials Processing Facility. The City estimates approximately 4,000 Tons per year, but makes no minimum guarantee to Tonnage. Processing shall include, at a minimum, removing obvious contaminants, pre-processing chip and grind), and Composting the Organic Materials. Organic Materials shall be converted to products for beneficial use including Compost and mulch. Both Parties understand that the Diversion of materials is expressed in the aggregate of the Approved Facilities Diversion rate. Contractor shall provide the City with finished Compost Product upon request at no additional charge to the City (at the Contractor’s ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 5 of 26 Approved Organic Materials Processing Facility). This shall be limited annually to one percent of the annual Organic Materials Tonnage collected from the City and delivered to the Approved Organic Materials Processing Facility. Specifics about the types of Compostable Food Ware accepted at the Approved Organic Materials Processing Facility will be determined and mutually agreed upon by the City and Contractor. Commercial Dry Waste Processing Contractor shall receive, accept, and Process Dry Materials collected under the City’s Collection Franchise Agreement at the Approved Dry Materials Processing Facility(ies). Contractor may use either the IRRF Processing Facility, or the Newby Island Processing Facility, or both. City estimates approximately 500 Tons per year, but makes no minimum annual guarantee to Tonnage. Contractor agrees to assist the City with identifying commercial accounts to be developed for Dry Material collection. The Contractor agrees to divert no less than fifty percent (50%) of the Dry Material delivered to its Approved Facility by the City’s Franchised Collector. In the event that a load of designated Dry Material from the City is delivered to the Approved Dry Materials Processing Facility and the Contractor takes exception with the classification of that load as Dry Material due to having more than ten percent (10%) by weight of Organic Materials, it shall take a picture of the load clearly showing the extent of contamination and provide a copy to the City. To the extent reasonably possible, the Contractor shall remove the contaminated portion of the load for Disposal and Process the remainder of the load as Dry Material at the Approved Dry Materials Processing Facility. Both Parties understand that the Diversion of materials is expressed in the aggregate of the Approved Facilities Diversion rate. Mixed Construction and Demolition Materials Processing Contractor shall receive from City’s Franchised Collector all identified C&D loads to remove contaminants and large dimensional/non-sizeable material very large diameter tree trunks) or wet material saturated sheet rock). City estimates the Tonnage to be 400 Tons/year, but makes no minimum guarantee regarding total Tonnage per year. Contractor shall then Process the remainder of each load to maximize the Diversion of material from the Landfill. The Contractor agrees to divert no less than seventy percent (70%) of designated loads of Construction and Demolition (C&D) Materials delivered to its Approved Facility by the City’s Franchised Collector. The Contractor further agrees to provide documentation of Diversion to the City’s Franchised Collector as requested for all C&D materials delivered, at no additional cost. The City’s Franchised Collector shall designate loads of Construction and Demolition (C&D) Materials which it will deliver to the Approved Construction and Demolition Processing Facility. In the event that a load of designated Construction and Demolition (C&D) Materials from the City is delivered to the Approved Construction and Demolition Processing Facility and the Contractor takes exception with the classification of that load as Construction and Demolition (C&D) Materials it shall take a picture or the load clearly showing the extent of contamination and provide a copy to the City. To the extent reasonably possible, the Contractor shall remove the contaminated portion of the load for Disposal and Process the remainder of the load at the Approved Construction and Demolition Processing Facility. Both Parties understand that the Diversion of materials is ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 6 of 26 expressed in the aggregate of the Approved Facilities Diversion rate. The Parties acknowledge that a significant portion of the Diversion from this program is achieved by utilizing “fines” or “unders” (the result of screening out small fragments like dirt, rock, plaster dust etc.) from this process as ADC (Alternative Daily Cover, used at landfills) or other beneficial use at a Solid Waste Disposal site. In the event of a Change in Law eliminating or significantly reducing Diversion credit associated with this type of use, the Parties shall meet and confer regarding appropriate modifications to the Diversion rate target defined herein. Household Hazardous Waste Receiving, Processing and Disposal Contractor currently contracts with a vendor for the operation of a permanent Household Hazardous Waste (HHW) drop-off facility at 101 Pittsburg Avenue, Richmond, CA, that serves the City and other member agencies of the Authority, including unincorporated communities within and adjacent to the Authority’s service area, subject to the agreements between the Authority, Contractor, and those agencies. The types of materials accepted as well as the days and hours of operation shall be determined by Contractor and may be subject to change at any time with input from the City, subject to reasonable implementation lead time. Initially, the days and hours of operation of the HHW facility shall be from 9:00 a.m. to 4:00 p.m. Thursday, Friday, and the first Saturday of each month. The Contractor shall also provide a mobile collection service for residents at least 60 years old and for persons with disabilities. Residents of the City requesting this service shall receive reply phone calls from Contractor within 72 hours of requesting service when clear contact information is provided, and shall receive service within two weeks of their request for service. Nothing in this Agreement should be inferred as conferring third Party beneficiary rights to such vendor and the Contractor shall have the right to replace such vendor at any time for convenience, subject to Authority approval of the replacement vendor. The City also provides Household Hazardous Waste Facility services at 7501 Schmidt Ln., El Cerrito, CA. Contractor and City shall periodically meet and confer in good faith to determine the ongoing viability of Contractor and/or Authority providing HHW service at this location. Additionally, Contractor and City agree to meet and confer in good faith and develop budgets for HHW special events in the City. Recycling Programs for El Cerrito Public Schools Contractor and City agree to work cooperatively to develop additional and enhanced Diversion programs for all public schools within the City to increase school site recycling efforts and performance. It is understood that the West Contra Costa County Unified School District (District) is under a separate Collection Agreement. As long as Contractor’s Affiliate serves the El Cerrito public schools through the District Agreement, Contractor’s staff shall work with the City and school site administrators to provide a focused educational program and implement additional and enhanced recycling programs for City’s public schools, including producing and distributing educational materials and signage, and providing all recycling and organics collection services. It is further understood that additional services to the District over and above those currently within the Districts agreement with Richmond Sanitary Service may require adjustment to that agreement for both additional services and compensation. These Diversion ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 7 of 26 program services shall closely track and be substantially similar to the public education and outreach programs for public schools being implemented by Contractor in connection with a definitive services agreement between Contractor and the Authority, while also making a good faith effort to meet the expectations of the City of El Cerrito Quarterly Reports Contractor shall include in a quarterly report, at a minimum, the number of loads and Tons, by material type and by month, handled under this Agreement. Reports shall be organized to separately report material received by sector (e.g. residential, commercial, or industrial) and collection method side-loader, rear-loader, roll-off). Reports shall detail, for all material received, the type and Tonnage of material received, and which Approved Processing Facilities received any or all Tonnage delivered. Both Parties understand that the Diversion of materials is expressed in the aggregate of the Approved Facilities Diversion rate. Quarterly reports shall present information on a basis, by sector (i.e. residential, multi-family, commercial, roll-off) and, at a minimum, include: The number of loads and Tons, by Processing method under this Agreement. This information shall be presented on an inbound (i.e. City’s collection vehicles) and outbound basis, to the extent possible, based on incoming percentages. (ii) Approved Transfer Station Diversion or recycling rate report by commodity, including total Tons delivered, total Tons Processed, total Tons Diverted, and total Tons of residual not Diverted. (iii)Diversion or recycling rate report by material type as Defined in Section 4.1, including total Tons delivered, total Tons Processed, total Tons Diverted, and total Tons of residual not Diverted. (iv) Approved Processing Facility report regarding Composted or Processed product by commodity, including total Tons Delivered, total Tons processed, total Tons Diverted, and total Tons of residual not Diverted. Total Tons Disposed segregated by Tons of Solid Waste and Tons residual direct from Numbers 2 – 5 above. The fourth quarter report of each Calendar Year shall serve as an annual report and shall include the required information for each of the four quarters along with the annual totals for the Calendar Year. The City and Contractor will meet and confer on modifications to the type and format of the quarterly and annual reports. Annual Waste Characterizations Contractor agrees to provide, at no cost to and as directed by the City, annual waste characterization services specific to the City’s waste streams. The level of effort the Contractor shall provide at no additional cost to the City shall be equivalent to characterizing major material types specific material types accepted through the City’s existing Diversion programs that remain in the waste stream and/or specific other potentially Recyclable Materials vs. all other materials), of all of the City’s residential or commercial loads over a one week period each year. As an example, representative samples of no less than 200 pounds of all commercial Solid Waste loads delivered to the Approved Transfer Station over the course of one week will be sorted and characterized ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 8 of 26 each day, with the daily and combined weekly characterization data provided to the City. Alternatively, the City may direct its Franchised Collector to deliver the contents of a commercial Solid Waste container or containers, including compactors, from a specific Generator on a given day to the Approved Transfer Station where the Contractor shall characterize all or a representative sample or samples, of no less than 200 pounds, of those containers by major material type similar to that described above. In the case of characterizing the contents of a container or containers from a specific Generator, the Contractor shall provide for characterizing the contents of a container or containers from up to five such individual Generators annually. 4.2 Permits Contractor shall obtain and maintain, at Contractor’s sole cost, except with respect to Changes in Law, all applicable Permits required to perform Services and shall provide Services in compliance with such Permits. 4.3 Ownership of City Materials Once Solid Waste, Organic Materials, C&D Material, Dry Material, HHW, or Recyclable Material directed by the City is received and accepted by Contractor, ownership and the right to possession of said materials shall Transfer directly from the Person delivering said materials to Contractor. Contractor may retain, Recycle, Process, Dispose of and otherwise use such Solid Waste, Organic Materials, C&D, Dry Materials, HHW, and Recyclable Materials in any lawful fashion or for any lawful purpose, in accordance with terms of this Agreement. 4.4 Weighing Standards and Procedures Contractor shall weigh and record inbound weights of all vehicles delivering materials to the Approved Processing Facilities and Landfill when the vehicles arrive and weigh and record outbound weights of vehicles for which Contractor does not maintain tare weight information. Contractor shall provide each driver a receipt showing the date, time, origin, and quantity (e.g. Tons), and material type that the vehicle delivered to the Approved Processing Facility or Landfill. 4.5 Scale Records Contractor shall maintain scale Records and reports that provide information including date of receipt, inbound time, inbound and outbound weights of vehicles, vehicle identification number, jurisdiction of origin of materials received, type of material, hauler identification and/or classification, type, weight, and destination of material. 4.6 Alternative Facilities If Contractor does not receive the materials at the Approved Processing Facilities or Landfill for reasons other than Uncontrollable Circumstances then, following City approval, Contractor shall: accept the City’s materials at another similarly-capable processing facility or landfill owned by it or an Affiliate; or, arrange for City’s material to be Processed or Disposed of at another similarly-capable processing facility or landfill not owned by it or an Affiliate. In either case Contractor shall provide service through these alternate facilities at no additional cost to the City. If Contractor does not receive the materials at the Approved Processing Facilities or Landfill due to Uncontrollable Circumstances, Contractor shall, to the extent it is legally able to do so in ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 9 of 26 accordance with Applicable Law and the terms of this Agreement accept materials at another similarly-capable processing facility or landfill owned by it or an Affiliate at no additional cost to the City. SECTION 5 CONTRACTOR COMPENSATION 5.1 General The Contractor shall perform and pay all costs associated with all of its obligations, responsibilities, and duties under this Agreement. In consideration of its performance of these duties, the Contractor may charge and collect from the City the compensation for the services provided under this Agreement. 5.1.1 Establishment of the Blended Rate for Services The City will establish appropriate rates to be charged to the rate payer to ensure sufficient compensation due to Contractor. The Contractor will invoice the City’s Franchised Collector the then-current Blended Per Ton Rate (as defined in Section 5.2, below) as adjusted by the terms of this Agreement for all Tons delivered to the Contractor’s Approved Processing Facilities. 5.2 Blended Per Ton Rate 5.2.1 General The Contractor’s initial compensation for all services described herein to be provided to the City at a Blended Per Ton Rate (or Blended Rate) of $90.30 per Ton, at an assumed 11,402 Tons (including MSW, Organics, C&D and Dry Waste) for Calendar Year 2014. The Calendar Year 2014 Blended Rate of $90.30 per Ton is calculated as the total of the following three components: Material Specific Portion of the Blended Rate equaling $75.31 per Ton Government Fees Portion of the Blended Rate equaling $9.44 per Ton HHW Portion of the Blended Rate equaling $5.55 per Ton 5.2.2 Governmental Fees and Changes to Government Fees During Term The Governmental Fees in place and assessed to Contractor and Contractor’s Approved Processing Facilities on the effective date are as set forth below and are based on at an assumed 11,402 Tons for 2014. The Government Fees may be adjusted (increased or decreased) during the Term, and new Government Fees may be imposed on Contractor or Contractor’s activities for performance of the Services during the Term. The Governmental Fees as of the date of execution of the Agreement are as shown in Exhibit 5.2.2 to this Agreement, which is attached hereto and incorporated by reference. 5.3 Annual Adjustments to the Blended Rate ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 10 of 26 5.3.1 General The initial Blended Rate for Services are deemed established by the Parties upon execution of this Agreement with no further action required. Contractor shall submit its preliminary request for the adjustment of the Blended Rate no later than September 1 of each Calendar Year for the Blended Rate effective January 1 of the following Calendar Year. The request shall be submitted in a format reasonably acceptable to the City Manager. Contractor’s request for the adjustment of the Blended Rate shall document all calculations and include all supporting schedules, documentation of changes to Governmental Fees, and any other documentation or evidence reasonably necessary to ensure that the calculation of adjustments to the Blended Rate has been performed in conformance to the requirements of this Section 5.3. The City Council shall approve the Rate adjustment prior to the end of November each year, and shall be effective January 1 of each year for which the Contractor has requested adjustment to the Blended Rate. If the adjustment to the Blended Rate cannot be considered and approved due to a delay caused solely by the City, the City shall allow the Contractor to retroactively bill for the amount of the adjustment to the Blended Rate for any period of said delay that is caused by the City. If the adjustment to Blended Rate cannot be considered and approved due to a delay caused solely by Contractor’s delay in timely submitting the request, then the existing (prior) Blended Rate remains in effect until such adjustment is made and approved by the Council. 5.3.2 Adjustment to Rate Annual Adjustments to the Materials Specific Portion of the Blended Rate Beginning January 1, 2015, and each January 1st thereafter, the Material Specific portion of the Blended Rate (initially $75.31 as defined in Section 5.2.1) shall be adjusted annually, based on eighty-five percent (85%) of the average change in the San Francisco-San Jose-Oakland All Urban Consumers CPI. The average change shall be calculated by averaging the percentage change in the index values for the most recent July through June, compared to the values for the prior year’s July through June period. For example, the average change, using the fictional values presented in the table below, would equal one and sixteen hundredths percent (1.16%) and eighty-five percent (85%) of the average change would equal ninety eight hundredths of a percent When applied to the material specific portion of the initial Rate, this example would result in a revised material-specific portion of the Rate of $75.31 plus $0.73 equaling $76.04 per Ton. Annual Adjustments to the Government Fees Portion of the Blended Rate In the event that there is a change in any existing Governmental Fee or creation of any new Governmental Fee to be collected or paid by Contractor that is to be levied or assessed so as to coincide with the annual Blended Rate adjustment process timeframe, 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% ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 11 of 26 the Governmental Fees Portion of the Blended Rate (as defined in Section 5.2.1) will be adjusted during the annual adjustment process to reflect the new or increased Governmental Fee amount due, divided by the total Tonnage (including MSW, Organics, C&D and Dry Waste) for the most recent Calendar Year. Contractor and City agree that this adjustment shall apply annually to the Contra Costa County Landfill Surcharge applied at the Keller Canyon Landfill which is assessed as a percent (currently 25%) of the landfill tip fee net of Government Fees. As the Material Specific portion of the Blended Rate is adjusted the amount paid in relation to the Contra Costa County Landfill Surcharge will increase accordingly. Annual Adjustments to the HHW Specific portion of the Blended Rate In the event that there is a change in total HHW program costs, as established between the Authority and Contractor (or, in the case that the Authority no longer manages City’s HHW, between City and Contractor) the HHW Portion of the Blended Rate (as per Section 5.2.1) will be adjusted proportionate to the total change in program costs. For example, if the total HHW program costs effective January 1, 2015 is 3% higher than the budgeted 2014 program costs, then the HHW portion of the Blended Rate will increase by that same In the event that the Authority no longer manages the City’s HHW, the City and Company agree to develop a revised HHW program costs that meet the City’s needs. These new program costs will be divided by the total Tonnage (including MSW, Organics, C&D and Dry Waste) for the most recent Calendar Year. The resulting per Ton cost would constitute the new HHW Portion of the Blended Rate. Annual adjustments to the HHW Portion of the Blended Rate would continue to be consistent with the process detailed above. 5.4 Periodic Adjustment to Governmental Fees Included in Rate In the event that there is a change in any existing Governmental Fee or creation of any new Governmental Fee to be collected or paid by Contractor impacting the Services provided under this Agreement and such change becomes known to the Parties after the City’s approval of revised Rates pursuant to section 5.3.2 above, City shall revise the Blended Rate upon written notice from Contractor documenting the change in Governmental Fee or creation of a new Governmental Fee, and stating the effective date of the changes to the Government Fee. 5.5 Other Adjustments to Compensation The Contractor may request the City’s consideration of an adjustment to Contractor’s compensation at any time during the Term in the event of the following circumstances: A Change in Law that results in documented increases or decreases in the specific cost of providing Services; City-requested changes in the scope of Services provided by the Contractor; Contractor-requested changes in the scope of Services provided by Contractor; subject to the City’s discretionary approval; Other special circumstances adjustments that may be requested by Contractor, subject to City’s discretionary approval. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 12 of 26 The City shall consider such requests and shall not unreasonably deny an adjustment to the Blended Rate under the prescribed circumstances. In the case of the enactment of new or increased Governmental Fees and charges, the City shall approve the request as a pass-through pursuant to sections 5.3.2 and 5.4 above. 5.6 Special Circumstances In the event of a special circumstances request for an adjustment to the Blended Rate, the Contractor shall document its estimate of the incremental change in costs associated with the special circumstance. The City may reasonably request additional information from the Contractor to evaluate the request. City shall determine whether to allow a special circumstances request for an adjustment to Contractor compensation within 90 days of Contractor’s request. SECTION 6 INDEMNITY & INSURANCE 6.1 Defense and Indemnification Contractor shall hold harmless, defend and indemnify City and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with Contractor’s performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which was caused by the active negligence or willful misconduct of the City. However, if a final judgment or resolution of any Action allocates liability by determining that any portion of liability is attributable to a wrongful or active negligent act, error or omission of the City, the City shall pay those allocated portions of liabilities and of defense costs. 6.1.1 Agreement Defense Contractor shall defend, at its sole cost and expense, with counsel approved by the City, the City in any Actions that assert or allege liabilities paid, incurred or suffered by, imposed upon or asserted against, the City that result or are claimed to have resulted directly or indirectly by Contractor’s negligent performance or non-performance of this Agreement, including the following: Contractor negligence or misconduct: the wrongful, willful or negligent act, error or omission, or the misconduct of the Contractor; Failure to comply with Applicable Law: Contractor’s failure or alleged failure to comply with Applicable Law or any alleged Violation thereof, including any Actions in connection with its Permits; Breach of representation: Contractor’s breach of any representation, warranty or covenant made in this Agreement; or, Challenges to Agreement: legal challenge to the authority of the City to enter into this Agreement or to contract out Services, regardless of the legal theory advanced or relied upon by any interested third Party, including any appeals necessary to validate that authority or the Agreement. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 13 of 26 City reserves the right to retain, at its sole cost and expense, co-counsel and Contractor shall direct Contractor’s counsel to assist and take direction from such co-counsel with respect to City’s defense. 6.1.2 Agreement Indemnification Contractor shall indemnify, release, and hold harmless, at its sole cost and expense, the City from and against all liabilities paid, incurred or suffered by, imposed upon or asserted against, the City that result or are claimed to have resulted directly or indirectly by Contractor’s performance or non-performance of this Agreement, including the items listed in preceding Section 6.1.1, whether or not those liabilities are litigated, settled or reduced to judgment and whether or not those liabilities are caused in part by any wrongful or negligent act, error or omission of any Person indemnified under this Agreement. However, if a final judgment or resolution of any Action allocates liability by determining that any portion of liability is attributable to a wrongful or active negligent act, error or omission of the City the City shall pay those allocated portions of liabilities and of defense costs. 6.1.3 Unpermitted Waste Defense and Indemnification Contractor shall defend, indemnify, and hold harmless at its sole cost and expense with counsel approved by the City, the City in any Actions that assert or allege liabilities paid, incurred or suffered by, imposed upon or asserted against, the City that result or are claimed to have resulted directly or indirectly from the presence, Disposal, escape, migration, leakage, spillage, discharge, release or emission of unpermitted waste or petroleum to, in, on, at, or under the Landfill or Approved Processing Facilities, whether: in one or more instance; threatened or transpired; Contractor is negligent or otherwise culpable; or those liabilities are litigated, settled, or reduced to a final judgment. For purposes of this indemnity, liabilities includes those arising from or attributable to any operations, repair, clean-up or detoxification, or preparation and implementation of any removal, remedial, response, closure, post-closure or other plan, regardless of whether undertaken due to government directive or action, such as remediation of surface or ground water contamination and replacement or restoration of natural resources. The foregoing indemnity is intended to operate as an agreement pursuant to 42 U.S.C. Section 9607(e) and California Health and Safety Code Section 25364, to insure, protect, hold harmless and indemnify the City from liability in accordance with this Section. 6.1.4 Environmental Indemnity Contractor shall defend, indemnify, and hold the City harmless against and from any and all claims, suits, losses, penalties, damages, and liability for damages of every name, kind and description, including attorneys’ fees and costs incurred, attributable to the negligence or willful misconduct of Contractor in handling unpermitted waste. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 14 of 26 6.1.5 HHW Services Indemnity and Insurance Contractor shall require its HHW services subcontractor to fully indemnify, defend, and hold harmless both the City and Contractor from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with HHW services subcontractor’s performance of activities, operations, and final disposal or recycling associated with the Household Hazardous Waste facility, except such loss or damage which was caused by the active negligence or willful misconduct of the City or Contractor. Furthermore, the subcontractor shall maintain certificates of insurance for Professional and Pollution Legal Liability naming both the City and Contractor as an additional insured, to the extent available, in the minimum amounts of three million dollars ($3,000,000) per occurrence and five million dollars ($5,000,000) in the aggregate. In the event that the HHW services subcontractor is unable to meet the required minimum insurance amounts, then Contractor shall take all reasonable actions to provide an equivalent indemnity of the City in the interim, while the City and Contractor meet and confer to develop an alternative that adequately protects the City. 6.2 Insurance Policies 6.2.1 Types and Amounts As of the January 1, 2014, Contractor shall secure and maintain, and enter into agreements to cause its Subcontractors, if any, to secure and maintain or provide that Subcontractors are insureds under Contractor's policies, in full force and effect the types and amounts of insurance coverage, together with related specified deductibles and endorsements, listed in Exhibit 6.2. If any third Person makes a claim against Contractor or any Subcontractors exceeding the amount of any deductibles, self-insured reserves, letters of credit, or bonds guaranteeing payment thereof, Contractor shall Notify the insurer, bond surety or letter of credit provider and City thereof. 6.2.2 Required Provisions Primary. Policies shall always be primary with respect to the Contractor's Services and the City, the City's employees, the City Council, officers, officials, agents, assigns and volunteers (City Insureds). Additional insureds. City insureds must be included as additional insureds by endorsement under the Comprehensive General, Automobile Liability, Environmental Impairment Liability Policies and any other pollution polices secured by Contractor. A copy of the endorsement or evidence of blanket or contractual additional insured status must be submitted with the certificate(s) of insurance. Excess, not contributory. Insurance coverage written specifically for the City must be considered excess and not contributory and any insurance or self-insurance maintained by City insureds is in excess of Contractor's insurance and shall not contribute with it. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 15 of 26 Separate application. All insurance must apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. No special limitations. Coverage shall contain no special limitations on the scope of protection afforded to City insureds, except in cases of fraud perpetrated by City. Reporting provisions. Any failure to comply with reporting provisions of policies shall not affect coverage provided to City insureds. Waiver of subrogation. Insurer, including workers compensation and general liability policy insurers, by endorsement must waive all rights of subrogation against City insureds for losses arising from performance of Services by Contractor, except for the negligence of City. Insurers. Contractor shall procure insurance from insurers approved by City, an admitted company in California and authorized to do business there, having not less than size category VII and a rating of A or better ("A-VII") by A.M. Best Company, Inc. Endorsements; Notices to City of Cancellation. Policies must bear endorsements in substantially the form provided in Exhibit 6.2, providing that coverage shall not be suspended, voided, canceled by either Party, reduced in coverage or limits, not renewed, or otherwise changed or modified except after prior written notice by e-mail, to City thirty (30) Calendar Days in advance, or if the reason for cancellation is non-payment of premiums, ten (10) Calendar Days in advance. Evidence of Coverage. As of the January 1, 2014, Contractor shall provide certificates of insurance and original endorsements required under this Agreement, signed by an authorized representative of the insurance company and including the signatory's company affiliation and title. Worker’s Compensation. Contractor shall provide statutory workers’ compensation coverage as required by State law. SECTION 7 DEFAULT BY CONTRACTOR AND TERMINTATION 7.1 Contractor Default Each of the following shall constitute an event of default by Contractor (“Contractor Default”), under this Agreement: 7.1.1 Service Defaults Failure to Perform. Except for instances of Uncontrollable Circumstances, Contractor’s failure to perform any duty or obligation in whole or in part for more than three ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 16 of 26 consecutive Working Days or more than seven total Working Days in any Calendar Year. Uncured Material Breach. Contractor fails or refuses to perform any of its material obligations under this Agreement; the City Manager notifies the Contractor in writing that a specific failure or refusal has occurred which shall, unless corrected, in its opinion, give the City a right to terminate this Agreement; and the Contractor does not correct the breach within twenty (20) Calendar Days of receiving the City Manager's Notice thereof. However, if the breach is not capable of cure within twenty (20) Calendar Days, Contractor shall provide the City Manager a Notice explaining why Contractor believes it needs additional time to effectuate a cure, together with a schedule therefore, and shall diligently proceed to cure the breach within that schedule, whereupon City may accept Contractor's schedule of cure, or make a written demand that Contractor cure the default within an alternative reasonable time period set by City. Repeated Breach. Contractor fails or refuses to perform any of its obligations under this Agreement repeatedly or habitually, as documented in writing, whether or not specific instance of failure or refusal has been previously cured. Criminal Activity. The occurrence of any Criminal Activity directly related to this Agreement by any supervisor, manager, officer, or director of Contractor, except that Contractor may cure the breach by terminating any and all individuals involved in the Criminal Activity within five Working Days of a notice from the City Manager. Failure to Provide Insurance. Contractor fails to provide insurance in accordance with Section 6.2, or Guaranty Agreement in accordance with Section 8.15. Transfer, Assignment. Contractor Assigns this Agreement without City approval required by Section 8.5 of this Agreement. Seizure, Attachment. Any asset used to provide Services is seized, attached, or levied upon (other than a pre-judgment attachment) so as to substantially impair Contractor's ability to timely and fully perform Services, and which cannot be released, bonded, or otherwise lifted within forty-eight hours (48), excepting weekends and Holidays; Insolvency, Bankruptcy, Liquidation. Contractor files a voluntary claim for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent to the appointment of or taking of possession by a receiver, liquidator, Assignee (other than as a part of a transfer of assets no longer used to provide Services or backup Services), trustee (other than as security of an obligation under a deed of trust), custodian, sequestration, administrator (or similar official) of Contractor for any part of Contractor's operating assets or any substantial part of Contractor's property, or shall make any general Assignment for the benefit of Contractor's creditors, or shall fail generally to pay Contractor's debts as they become due or shall take any action in furtherance of any of the foregoing. The foregoing notwithstanding, nothing herein shall or is intended to affect the jurisdiction and authority ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 17 of 26 of any trustee or receiver in connection with bankruptcy proceedings pursuant to the federal Bankruptcy Act or any similar or successor statute. A court, having jurisdiction, enters a decree or order for relief in respect of the Agreement, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or that court enters a decree or order appointing a receiver, liquidator, Assignee, custodian, trustee, sequestrator, administrator (or similar official) of the Contractor or for any part of the Contractor's operating equipment or assets, or orders the winding up or liquidation of the affairs of the Contractor. False Representations; Breach of Representations or Warranties. Contractor makes a representation, certification, or warranty in this Agreement or pursuant to this Agreement which Contractor knows, or in the course of diligently conducting business and providing Services should have known, is untrue as of the date thereof. Contractor makes a representation or fails to make a disclosure, whether within this Agreement or otherwise, to the City in connection with, or as a material inducement to, entering into this Agreement or any future amendment to this Agreement, which representation or failed disclosure is false or misleading in any material respect when made. 7.2 Right to Suspend or Terminate Agreement 7.2.1 Termination Events City may terminate this Agreement in the following events: Contractor Default: Upon a Default by Contractor, City shall have the right to terminate this Agreement upon ten (10) Working Days’ notice if the public health or safety is threatened, as determined by the County Health Officer, or his or her designee. Nothing herein shall or be interpreted to preclude Contractor from challenging any determination of the County Health Officer. If the public health or safety is not immediately threatened, the City may terminate, after a notice and hearing subsequent to thirty (30) days’ notice of the decision to terminate. This right of termination is in addition to any other rights of City upon a failure of Contractor to perform its obligations under this Agreement. Failure to Perform Core Obligations: If after exhausting the remedies available within this Agreement, for whatever reason the Contractor is unable to perform its core obligations under this Agreement for a period of thirty (30) Calendar Days beyond the timeline described in this Agreement. Assignment of Guaranty Agreement Without Consent: the Guarantor Assigns the Guaranty Agreement without consent required by Section of the Guaranty Agreement despite the City Council action denying City consent, and on or before fifteen (15) Calendar Days thereafter, the Guarantor does not provide City with a substitute Guarantor or alternative financial credit support satisfactory to City. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 18 of 26 7.2.2 Notice Subject to Contractor’s right to cure, notice of termination may be effective no sooner than: Immediately or upon other period stated by City with respect to Contractor Defaults described in Section 7.1.1; Two Working Days after giving Contractor a Notice with respect to a Contractor Default described in Section 7.2.1(b) (Failure to Perform); and, Fifteen (15) Working Days after giving Contractor a Notice with respect to all other Contractor Defaults or termination events. 7.2.3 Contractor's Obligations Upon Expiration or Termination Contractor shall meet its obligations under any Indemnifications including any such obligations and Indemnifications that survive the termination of this Agreement. 7.3 Right to Perform In the events described in items 7.2.1(a) (Contractor Default) and 7.2.1(c) (Assignment of Guaranty Agreement Without Consent), the City, at its sole discretion, may perform and complete, by contract or otherwise, Services or a portion thereof (other than operating the Approved Processing Facilities and Landfill which are the property of Contractor) and incur all expenses necessary for full and timely provision of Services. 7.4 All Other Available Remedies If City suspends or terminates this Agreement, it may exercise remedies of damages and any other available remedies at law and in equity (including specific performance) Contractor acknowledges that City's remedy of damages for a breach of this Agreement by Contractor in accordance with this Section may be inadequate for reasons including: The urgency of timely, continuous and high-quality waste management Service under this Agreement, including, but not limited to, Disposal of wastes which constitute a threat to public health; The City's reliance on Contractor's technical waste management expertise. Consequently, City is entitled to all available equitable remedies, including injunctive relief. Compensatory damages include amounts equal to any City’s reimbursement costs or other money Contractor has previously paid to the City but that are subsequently recovered from the City by a trustee in bankruptcy as preferential payments or otherwise and City’s reimbursement costs of re-procuring an agreement for services to replace Services if this Agreement is terminated due to Contractor Default. 7.5 City's Remedies Cumulative The City's rights to seek dispute resolution in accordance with Section 8.14, suspend or terminate this Agreement in accordance with Section 7.2, to perform under Section 7.3, or to seek other available remedies under Section 7.4, are not mutually exclusive. Exercise of one remedy is not an election of remedies but is cumulative with any other remedies under this Agreement. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 19 of 26 7.6 Waiver The City’s waiver of any breach or Contractor Default shall not be deemed to be a waiver of any other breach or Contractor Default including ones with respect to the same obligations under this Agreement; provided however, that nothing herein abrogates applicable statutes of limitations for any claims which were or could have been brought. The City's decision not to demand damages shall not be deemed a waiver of any Contractor breach under this Agreement. The City's subsequent acceptance of any damages or other money paid by Contractor shall not be deemed to be a waiver by the City of any pre-existing or concurrent breach or Contractor Default; provided however, that nothing herein abrogates applicable statutes of limitations for any claims which were or could have been brought. Contractor acknowledges that it is solely responsible for providing Services and except as provided below in this paragraph, by this Agreement irrevocably and unconditionally waives defenses to the payment and performance of its obligations under this Agreement based upon failure of consideration; contract of adhesion; impossibility or impracticability of performance; commercial frustration of purpose; or the existence, non-existence, occurrence or non-occurrence of any foreseen or unforeseen fact, event, or contingency that may be a basic assumption of Contractor with regard to any provision of this Agreement; provided, however that Contractor does not waive defenses to impossibility or impracticability of performance; commercial frustration of purpose; or the existence, non-existence, occurrence or non-occurrence of any unforeseeable fact, event, or contingency that may arise during the Term of this Agreement. Contractor does not waive any defenses of Uncontrollable Circumstances at any time. SECTION 8 OTHER AGREEMENTS OF THE PARTIES 8.1 Relationship of Parties The Parties intend that Contractor shall perform the Services required by this Agreement as an independent Contractor engaged by the City and not as an officer or employee of the City, nor as a partner of or joint venture with the City. No employee or agent of Contractor shall be or shall be deemed to be an employee or agent of the City. Contractor shall have the exclusive control over the manner and means of conducting Services, and all Persons performing those Services, except for prescriptive requirements in this Agreement established by the City or City’s right to change the scope of Services. Contractor is solely responsible for the acts and omissions of its officers, employees, subcontractors, and agents. Neither Contractor, nor its officers, employees, subcontractors, or agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits that accrue to the City employees. 8.2 Compliance with Law Contractor shall perform, and shall cause any contractors or subcontractors to perform, all Services in accordance and compliance with Applicable Law, whether or not referenced specifically in the text of this Agreement and regardless of whether specified Service obligations may be stated less stringently than Applicable Law. 8.3 Governing Law ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 20 of 26 This Agreement shall be governed by, and construed and enforced in, accordance with the Applicable Laws of the State, without giving effect to the State’s principles of conflicts of laws. 8.4 Climate Action Plan Cooperation Contractor acknowledges that City has adopted a Climate Action Plan. Contractor agrees to provide City with requested technical data within 30 days of the City’s request, if reasonably available and non-proprietary, with respect to greenhouse gas (GHG) reductions and Contractor- owned and operated facilities that accept City materials for Processing and Disposal. Contractor agrees to meet and confer with City in good faith to develop City programs to implement as part of City’s Climate Action Plan. 8.5 Assignment 8.5.1 Permitted Assignments Contractor shall have the right to Assign this Agreement to any other company which is owned and controlled by parent company Republic Services, Inc., provided that: such company is qualified to provide the services required under this Agreement (ii) qualified to do business in California, and assumes in writing all of Contractor’s obligations under this Agreement prior to, or concurrently with, such Assignment; and, (iii) the corporate parent guaranty remains in full force and effect. Contractor shall not otherwise Assign its rights nor delegate or otherwise transfer its obligations under this Agreement to any other Person without the prior written consent of the City, provided consistent with the requirements of this Section 8.5.2. Any such Assignment made without the written consent of City shall be void and the attempted Assignment shall constitute a breach of this Agreement. 8.5.2 Assignment Defined For the purpose of this section when used in reference to Contractor, “Assignment” shall include, but not be limited to: a sale, exchange or other transfer of substantially all of Contractor’s assets dedicated to Service under this Agreement to a third Party; a sale, change or other transfer of outstanding common stock of Contractor to a third Party provided said sale, exchange or transfer results in a change of control of Contractor; any dissolution, organization, consolidation, merger, re-capitalization, stock issuance or reissuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction that results in a change of ownership or control of Contractor; any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for the benefit of creditors, writ of attachment for an execution being levied against this agreement, appointment of a receiver taking possession of Contractor’s property, or transfer occurring in the event of a probate proceeding; and, any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor. 8.5.3 Contractor Request for Assignment If Contractor requests the City’s consideration of and consent to an Assignment, City may reasonably deny or approve such requests. Upon approval of an Assignment, Contractor shall ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 21 of 26 pay City its reasonable expenses for attorney’s fees and investigation costs up to a maximum of $50,000 including City staff time necessary to investigate the suitability of any proposed Assignee, and to review and finalize any documentation required as a condition for approving any such Assignment. City shall have furnished Contractor with an estimate of anticipated time required and charges to be incurred, including without limitation applicable hourly rates for any services proposed to be utilized by City. Contractor shall furnish City with audited financial statements of the proposed Assignee’s operations, if available, for the immediately preceding three operating years. Contractor shall furnish City with satisfactory proof: that the proposed Assignee has at least five years of Solid Waste management experience on a scale equal to or exceeding the sale of operations conducted by Contractor under this Agreement; that in the last five years, the proposed Assignee has not suffered any significant citations or other censure from any federal, State, or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with State, federal, or local environmental laws and that the Assignee has provided City with a complete list of such citations and censures; that the proposed Assignee has at all times conducted its operations in an environmentally safe manner; that the proposed Assignee conducts its Solid Waste management practices in accordance with industry management practices in full compliance with all federal, State, and local laws regulating the collection and Disposal of Solid Waste including Hazardous Materials; and, of any other information reasonably required by City to ensure the proposed Assignee can fulfill the terms of this Agreement in a timely, safe, and effective manner. 8.6 Binding on Successors The provisions of this Agreement shall inure to the benefit of and be binding on the successors and permitted Assigns of the Parties. 8.7 Parties in Interest Nothing in this Agreement, whether expressed or implied, is intended to confer any rights on any Persons other than the Parties to it and their representatives, successors and permitted Assigns. 8.8 Services Performed At Contractor’s Sole Expense Contractor shall perform Services solely for the compensation expressly provided for herein. 8.9 Notices and Communication Parties must present and express all reports, demands, requests, directions, selections, option exercises, orders, requests, proposals, reviews, comments, acknowledgments, approvals, consents, waivers, certifications and other communications made to each other under this Agreement in writing. Parties must provide notices at the address provided in this Section below, in any of the following manners: Personal delivery to a representative of the Parties, with signed receipt, Deposit in the United States mail, first class postage prepaid (certified mail, return receipt requested); or ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 22 of 26 Deposit with a commercial delivery service providing delivery verification. If to City: City of El Cerrito Attn: City Manager 10890 San Pablo Avenue El Cerrito, CA 94530 With Copy to: City of El Cerrito Attn: City Attorney 10890 San Pablo Avenue El Cerrito, CA 94530 If to Contractor: Area President Republic Services, Inc. 3260 Blume Drive, 2nd Floor Richmond, CA 94806 With a copy to: Timothy Benter Vice President & Deputy General Counsel Republic Services, Inc. 18500 North Allied Way Phoenix, AZ 85054 With an additional Scott W. Gordon copy to: Law Offices of Scott W. Gordon, APC 1990 North Calif. Blvd., Suite 620 Walnut Creek, CA 94596 Parties may change their address upon written Notice to the other Party. 8.10 Duty of Contractor Not To Discriminate In the performance of all work and Services under this Agreement, Contractor shall not discriminate against any Person on the basis of that Person's race, color, religion, national origin, ancestry, age, physical handicap, medical condition, religion, marital status, sex or sexual orientation, and gender identification. Contractor shall comply with all Applicable Law regarding nondiscrimination, including those prohibiting discrimination in employment. 8.11 Uncontrollable Circumstances The Party experiencing an Uncontrollable Circumstance and relying thereon shall give Notice thereof to the other Party, including describing performance under this Agreement for which it seeks to be excused; the expected duration of the Uncontrollable Circumstance; the extent Services may be curtailed; any requests or suggestions to mitigate the adverse effects of the Uncontrollable Circumstance; or any consequent adjustment of Rates. Neither Party is deemed in breach or default of its duties, obligations (other than a payment obligation at the time due and owing), responsibilities or commitments under this Agreement to ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 23 of 26 the extent that the breach or default is due to an Uncontrollable Circumstance, provided the Party exerted reasonable business efforts to prevent the occurrence and mitigate the effects of the Uncontrollable Circumstance. Notwithstanding that Contractor's failure to timely and fully provide Services due to Uncontrollable Circumstances does not constitute a Contractor Default, following the continuance of the failure for ninety six (96) hours, City may at its sole discretion temporarily secure alternative services limited to the duration of the Uncontrollable Circumstance. Following the continuance of that failure for thirty (30) Calendar Days, the City and Contractor shall meet and confer in good faith to determine alternative means to provide services. 8.12 Maintenance of Records Contractor shall maintain Records at each of the Approved Processing Facilities and Landfill or elsewhere at the Contractor’s offices located within Contra Costa County. Contractor shall retain all Records required to be maintained by this Agreement at least throughout the term. Contractor shall retrieve Records specifically directed to be retained in accordance with this Agreement and make them available to the City within fifteen (15) Calendar Days of the City Manager’s written request. 8.13 Compilation of Information for State Law Purposes Contractor shall compile information on amounts of Solid Waste delivered to the Landfill and Organic Materials, Recyclable Materials, Dry Materials, and C&D delivered to Approved Processing Facilities and the Landfill and other information, which the City may reasonably request, in order to meet its obligations under the Act. 8.14 Dispute Resolution 8.14.1 Informal Resolution Should a dispute arise with respect to the performance and obligations of the Parties hereunder, at any time during the term of this Agreement, the provisions of Section 8.14 shall apply. Either Party shall give the other written notice of such dispute. Such notice shall specify a date and location for the Parties to meet and confer in good faith to resolve any dispute that may arise in a cooperative and mutually satisfactory manner. The Parties shall attempt to resolve their disputes informally to the maximum extent possible. 8.14.2 Mediation In the event the Parties cannot resolve such dispute within thirty (30) Days of such notice, either Party may propose the appointment of a mediator for advice and non-binding mediation, and the other Party shall attend such mediation. If the mediator is unable, within thirty (30) Days thereafter, to reach a determination as to the matter in dispute in a manner acceptable to the Parties hereto, then either Party may refer the matter to a Court of competent jurisdiction. 8.14.3 Judicial Actions ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 24 of 26 In the event the Parties cannot resolve such dispute after first meeting informally and then mediating the dispute, either Party may file an action in a Court of competent jurisdiction to resolve the dispute. 8.15 Guaranty of Contractor's Performance The Guarantor has agreed to guaranty Contractor's performance of this Agreement including Contractor’s indemnification obligations hereunder pursuant to a Guaranty Agreement in substantially the form attached as Exhibit 8.15. The Guaranty Agreement is being provided concurrently with Contractor's execution of this Agreement. 8.16 Exercise of Discretionary Actions Parties shall exercise any approval, disapproval, consent, option, discretion, election, opinion, judgment, or choice under this Agreement, make a requirement under this Agreement or interpret this Agreement (“Discretionary Action”) reasonably and in writing. Parties shall exercise their Agreement rights and remedies in good faith in accordance with Applicable Law. 8.17 Jurisdiction, Venue To the extent permitted by Applicable Law and subject to choice of venue laws, venue is appropriate in courts sitting in Contra Costa County, California. For cases adjudicated in Federal Court, the appropriate venue is the United States District Court for the Northern District of California. The site of any other hearing or action, whether mediation, arbitration, or non-judicial, of whatever nature or kind regarding this Agreement, shall be conducted in the County of Contra Costa, California, or as otherwise mutually agreed upon by the Parties. 8.18 Costs and Expenses Each Party, regardless of the decision of the court, shall pay their own expenses incurred in the process of adjudication. SECTION 9 REPRESENTATION AND WARRANTIES OF CONTRACTOR 9.1 Status Contractor is a corporation duly organized, validly existing and in good standing under the laws of California and is qualified to do business in the State. 9.2 Authority and Authorization The Contractor has full legal right, power and authority to execute and deliver this Agreement and perform its obligations under this Agreement. This Agreement has been duly executed and delivered by the Contractor and constitutes a legal, valid and binding obligation of the Contractor enforceable against the Contractor in accordance with its terms. 9.3 No Conflicts Neither the execution or delivery by the Contractor of this Agreement, the performance by the Contractor of its Service obligations, nor the fulfillment by the Contractor of the terms and conditions of this Agreement: conflicts with, violates or results in a breach of any Applicable ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 25 of 26 Law; or conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency or other governmental authority. 9.4 No Approvals Required No approval, authorization, license, permit, order or consent of, or declaration, registration or filing with any governmental or administrative authority, commission, board, agency or instrumentality is required for the valid execution and delivery of this Agreement by the Contractor, except those as have been duly obtained from its Board of Directors. 9.5 No Litigation As of the January 1, 2014, there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or instrumentality pending or, to the best of the Contractor’s knowledge, threatened, against the Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by the Contractor of its obligations under this Agreement or in connection with the transactions contemplated by this Agreement, or which, in any way, would adversely affect the validity or enforce ability of this Agreement or any other agreement or instrument entered into by the Contractor in connection with the transactions contemplated by this Agreement. 9.6. Due Diligence Contractor has made an independent investigation, examination and research satisfactory to it of the conditions and circumstances surrounding the Agreement and best and proper method of providing Services (including Service types) and labor, equipment and materials for the volume of Services to be provided. 9.7 Compliance with Applicable Law Contractor further represents and warrants that it has fully complied with all Applicable Law, including without limitation law relating to conflicts of interest, in the course of procuring this Agreement. 9.8 Ability to Perform Contractor warrants that it possesses the business, professional and technical capabilities to provide Services; has secured and maintains in full force and effect Permits; and possesses the equipment, facility and employee resources required to fully and timely perform Services. 9.9 Capacity Contractor warrants that as of the January 1, 2014 it has capacity at the Landfill and the Approved Processing Facilities to perform the services required under this Agreement throughout the Term and that it shall maintain that capacity through the Term. SECTION 10 MISCELLANEOUS PROVISIONS 10.1 Exhibits If any provisions contained in the text of Articles 1 through 10 are inconsistent or conflict with any Exhibits to this Agreement, then the provisions of the text shall govern. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 26 of 26 10.2 Section Headings Any captions or headings following the Exhibit, Section, subsection, paragraph and Article numbers and preceding the operative text of this Agreement is for convenience of reference only and do not control or affect the scope, intent, meaning, construction, interpretation, or effect of this Agreement. 10.3 Interpretation and Drafting This Agreement must be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting. The Parties have negotiated this Agreement at arm’s length and with advice of their respective attorneys, and no provision herein is to be construed against either Party as the drafter. 10.4 Amendment The Parties may change, modify, supplement, or amend this Agreement only upon a prior written agreement duly authorized and executed by both Parties. 10.5 Court Determinations and Rulings If any clause, sentence, provision, subsection, Section, or Article of this Agreement or Exhibit to this Agreement (an Agreement Provision) is ruled unconstitutional, illegal, invalid, non-binding, or unenforceable by any court of competent jurisdiction, then the Parties shall: meet and confer in good faith to identify, if possible, a substitute for those Agreement Provisions and any related amendments, deletions, or additions to other provisions of this Agreement, which together effect the Parties’ original intent to the greatest extent allowable under Applicable Law; and If necessary or desirable to accomplish preceding item City and Contractor may jointly apply to the court that made that ruling for a judicial construction of the substituted Agreement Provision and any amendments, deletions, or additions to this Agreement. Each Party shall bear their respective costs of so doing. 10.6 Intentionally Left Blank 10.7 Authority City warrants that the officers listed below have been duly authorized by the City Council to execute this Agreement on behalf of the City. Contractor warrants that the individuals listed below have been duly authorized by the Contractor to execute this Agreement on behalf of the Contractor. 10.8 Counterparts This Agreement may be executed in any number of counterparts, some of which may not bear the signatures of all Parties to this Agreement. Each counterpart, when so executed and delivered, is deemed to be an original and all counterparts, taken together, shall constitute one and the same instrument; provided, however, that in pleading or proving this Agreement, it shall not be necessary to produce more than one copy (or sets of copies) bearing the signature of the Contractor or City. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 El Cerrito Post-Collection Service Agreement Page 27 of 26 IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed as of the latter of the date written below. City of El Cerrito: Contractor: By: City Manager, City of El Cerrito Date Area President Date Approved as to Form: Approved as to Form: City Attorney Date Contractor Legal Counsel Date Attest: City Clerk Date ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 1 Definitions Page i of vii EXHIBIT 1 DEFINITIONS “Act” means the California Integrated Waste Management Act of 1989 set forth in PRC Section 40000, et seq. “Actions” means all actions including claims, demands, causes of action, suits, mediation, arbitration, hearings, investigations, inquiries and proceedings, whether legal, judicial, quasi- judicial, governmental or administrative in nature and whether threatened, brought, instituted or settled. “Affiliate” means all businesses (including corporations, limited and general partnerships, and sole proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect ownership interests or common management shall be deemed to be “Affiliated with” Contractor and included within the term “Affiliates” as used herein. An Affiliate shall include a business in which Contractor owns a direct or indirect ownership interest, a business which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled, or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, the “ten percent shall be substituted for “fifty percent in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest or value which the Ownership interest represents, whichever is greater. “Agreement” means this Agreement between the City and Contractor, including all exhibits, schedules and attachments, which are incorporated in this Agreement by reference, as this Agreement may be amended and supplemented. “Applicable Law” means all laws, statutes, rules, regulations, guidelines, Permit conditions, Permits, Actions, determinations, orders, approvals or requirements of the United States, State, regional or local government authorities, agencies, boards, commissions, courts or other bodies having applicable jurisdiction, that from time to time apply to or govern Services or the performance of the Parties' respective obligations under this Agreement. “Approved Construction and Demolition Processing Facility” means the West Contra Costa Sanitary Landfill Construction and Demolition Materials Processing Facility located at the foot of Parr Blvd. in Richmond, California “Approved Dry Materials Processing Facility” means the Newby Island Resource Recovery Park located at 1601 Dixon Landing Road in Milpitas California or West County Resource Recovery (IRRF) located at 101 Pittsburg Ave in Richmond California. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 1 Definitions Page ii of vii “Approved Organic Materials Processing Facility” means the West Contra Costa Sanitary Landfill Organic Materials Processing Facility located at 1 Parr Blvd, Richmond, California. “Approved Processing Facility(ies)” means the Approved Organic Materials Processing Facility, Approved Construction and Demolition Materials Processing Facility, Approved Transfer Station, and/or the Approved Recyclable Materials Processing Facility. “Approved Recyclable Materials Processing Facility” means West County Resource Recovery Facility located at 101 Pittsburg Ave, Richmond, California or the Newby Island Resource Recovery Park located at 1601 Dixon Landing Road in Milpitas, CA. “Approved Transfer Station” means the Golden Bear Transfer Station owned by the Contractor and located 1 Parr Blvd, in Richmond California. “Assign or Assignment” means: selling, exchanging or otherwise transferring effective control of management of the Contractor (through sale, exchange or other transfer of outstanding stock or otherwise); issuing new stock or selling, exchanging or otherwise transferring 20% or more of the then outstanding common stock of the Contractor; any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Contractor; any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for the benefit of creditors, writ of attachment of an execution, being levied against Contractor, appointment of a receiver taking possession of any of Contractor’s tangible or intangible property; any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any that transfer or change of Ownership or control of Contractor. “Authority” means the West Contra Costa Integrated Waste Management Authority, its Board of Directors, staff, and/or agents. “Calendar Year” means a successive period of twelve (12) months commencing on January 1 and ending on December 31. “CCR” means California Code of Regulations. “Change in Law” means any of the following events or conditions which has a material effect on the performance by the Parties of their respective obligations under this Agreement (except for payment obligations): The enactment, adoption, amendment, promulgation, issuance, modification, or written change in administrative or judicial interpretation of Applicable Law, on or after the January 1, 2014; or A change in judicial or administrative interpretation of Applicable Law occurring on or after the January 1, 2014 in any published opinion, rule, finding, decision or order of any ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 1 Definitions Page iii of vii governmental body affecting the Contractor’s obligations herein, including without limitation any order or judgment of any federal, State or local court, administrative agency or governmental body; or The imposition of any new or different material conditions in connection with the issuance, renewal, update or modification of any Permit; and/or the failure of a governmental authority or agency to issue or renew, or delay in the issuance or renewal of, or the suspension, interruption or termination of, any Permit after the date of this Agreement. “Collection Franchise Agreement” refers to the franchise agreement(s) between the City and its Franchised Collector. “Compost(ed)(ing)” means a controlled biological decomposition of organic materials that are separated from the municipal Solid Waste stream, or which are separated at a centralized facility. “Compostable Food Ware” means a subset of Organic Material. Compostable Food Ware is a product capable of being Composted and labeled in accordance with California law, or is consistent with the timeline and specifications of ASTM D6400 and D6868, without regard to material type. The Parties’ intention is to maximize Composting of such materials; as new commodities become available, and as long as materials are composted in a commercially feasible and reasonable manner, they will be considered to be Organic Material. “Compost Product” means the product resulting from composting, the controlled biological decomposition of organic materials, that are source separated from the municipal Solid Waste stream, or which are separated at a centralized facility. “Construction and Demolition (C&D) Materials” includes but is not limited used or discarded materials generated from construction, remodeling, repair, deconstruction, demolition, and renovation activities performed on any pavement, dwelling, commercial building or other structure. Such materials include, but are not limited to: dirt, sand, rock, concrete, gravel, bricks, plaster, gypsum wallboard, ferrous and non-ferrous scrap, glass, asphalt material, roofing material, cardboard, carpeting, cinder blocks, electrical wire, fiberglass, fixtures, granite, marble, pressboard, porcelain, stucco, ceramic tile, wood, masonry, remnants of new materials (including paper, plastic, carpet scraps, wood scraps, and scrap metal) and plant debris resulting from land clearing and landscaping activities related to construction, remodeling, repair, deconstruction, demolition and renovation activities. Some materials may be required to be profiled and tested for contamination prior to being accepted or processed (example would include chemical or asbestos contamination). “Criminal Activity” means, but is not limited to: any criminal offense in connection with obtaining, attempting to obtain, procuring or performing a public or private agreement related to Solid Waste, Organic Materials, or Recyclable Materials Services of any kind (including collection, hauling, Transfer, Processing, Composting, or Disposal), including this Agreement; or bribery or attempting to bribe a public officer or employee of a local, State, or federal agency; or ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 1 Definitions Page iv of vii fraud, embezzlement, extortion, racketeering, false claims, false statements, forgery, falsification or destruction of Records, obstruction of justice, knowingly receiving stolen property, theft, or misprision (failure to disclose) of a felony; or unlawful Disposal of Hazardous or Designated Waste; or violation of antitrust laws, including laws relating to price-fixing, bid-rigging and sales and market allocation, and of unfair and anti-competitive trade practice laws, including with respect to inflation of waste collection, hauling or Disposal fees. “Day” means calendar day. “Disposal or Dispose (or other variation thereof)” means the final Disposition of Solid Waste in accordance with this Agreement at the Landfill. “Diversion or Divert” means to Divert from landfill Disposal or transformation through source reduction, reuse, Recycling, Composting, or other means within the meaning of the Public Resources Code Section 41780 for all Tons directed to Contractor’s Approved Facilities. “Dry Material” means discarded material which is placed for Collection by the Generator as Solid Waste, but is collected separately from other Generator’s Solid Waste by a Franchised Collector for the purpose of Diversion. This material is generally characterized as having a large amount of Recoverable paper, cardboard, and plastic and having ten percent (10%) or less by weight of Organic Materials. “Food Scraps" are a subset of Organic Materials, means materials that shall decompose and/or putrefy including: all kitchen and table food waste; animal or vegetable waste that is generated during or results from the storage, preparation, cooking or handling of food stuffs; discarded paper that is contaminated with Food Scraps; fruit waste, grain waste, dairy waste, meat, and fish waste; and non-Recyclable paper or contaminated paper, including waxed paper and waxed cardboard. “Franchised Collector” means the company given the exclusive or limited right to Collect Solid Waste, Organic Materials, and/or Recyclable Materials within the physical jurisdiction of the City. As of the execution of this agreement, that company is East Bay Sanitary Company. “Generator” means any Person whose act or process produces Solid Waste or unpermitted waste or other material that becomes part of the overall waste stream. “Government Fees” are fees or taxes imposed on a Solid Waste facility by a government agency or entity without regard to the specific site characteristics or operational history of those facilities. “Hazardous Materials or Hazardous Waste” are materials that by reason of their quality, concentration, composition or physical, chemical or infectious characteristics may cause or ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 1 Definitions Page v of vii significantly contribute to an increase in mortality or an increase in serious illness or pose a substantial threat or potential hazard to human health or the environment when improperly treated, stored, Transported or Disposed of or otherwise mismanaged; or any waste which is defined and/or regulated as a Hazardous Waste, toxic waste, hazardous chemical substance or mixture, or asbestos under Applicable Law, and: "Hazardous Waste" pursuant to Section 40141 of the California Public Resources Code; regulated under Chapter 7.6 (commencing with Section 25800) of Division 20 of the California Health and Safety Code; all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by Sections 25110.02, 25115, and 25117 of the California Health and Safety Code (the California Hazardous Waste Control Act), California Health and Safety Code Section 25100 et seq., including 23 CCR Sections 2521 and 2522; materials regulated under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended (including amendments thereto made by the Solid Waste Disposal Act Amendments of 1980); materials regulated under the Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq., as amended, and related federal, State and local laws and regulations, including the California Toxic Substances Account Act, California Health and Safety Code Section 25300 et seq.; materials regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq.; materials regulated under any future additional or substitute federal, State or local laws and regulations pertaining to the identification, Transportation, treatment, storage or Disposal of toxic substances or Hazardous Waste; and any substance the presence of which at the Landfill is prohibited by Applicable Law. If two or more governmental agencies having concurrent or overlapping jurisdiction over Hazardous Waste adopt conflicting definitions of "Hazardous Waste", for purposes of collection, Transportation, Processing and/or Disposal, the broader, more restrictive definition is employed for purposes of this Agreement. “Holidays” are defined as New Year’s Day, Martin Luther King Holiday, President’s Holiday, Easter Sunday, Memorial Day, Fourth of July, Labor Day, Columbus Day, Thanksgiving Day, and Christmas Day. “Household Hazardous Waste or HHW” means any Hazardous Waste generated incidental to owning or maintaining a place of residence, excluding any Hazardous Waste generated in the course of operation of a business concern at a residence, in accordance with Section 25218.1 of the California Health and Safety Code. “Landfill” means Keller Canyon Landfill, which is owned and operated by Contractor and located in Contra Costa County at 901 Bailey Road, near Pittsburg, CA. “Organic Materials” means those Yard Trimmings, Food Scraps, and Compostable Food Ware which are accepted and approved by the Approved Organic Materials Processing Facility. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 1 Definitions Page vi of vii “Party or Parties” refers to the City and Contractor, individually or together. “Permits” means applicable federal, State, Authority, other local or regional governmental agency Permits, orders, licenses, approvals, authorizations, consents and entitlements that are required under Applicable Law in order to perform the Services, as renewed or amended from time to time. “Person(s)” includes an individual, firm, association, organization, partnership, corporation, trust, joint venture, the United States, the State, local governments and municipalities and special purpose districts and other entities. “Process(ed)(ing)” means to prepare, treat, or convert through some method. “PRC” means the California Public Resources Code. “RCRA” means the Resource Conservation and Recovery Act (42 U.S.C. Section 6900 et. seq.). “Records” means books of account, invoices, canceled checks, correspondence and other Records or documents evidencing satisfaction of Contractor’s performance of the obligations under this Agreement. “Recovered Material” means Recyclable Materials, Organic Materials, C&D materials, and Dry Materials that are recovered for Diversion during Processing. “Recycle(ing)” means the process of sorting, cleansing, treating and reconstituting materials that would otherwise be Disposed of at a landfill for the purpose of returning such materials to the economy in the form of raw materials for new, reused or reconstituted products. “Recyclable Materials” means materials that are reused, remanufactured, or Processed. “Services” mean all obligations of Contractor under and in accordance with this Agreement to City. “Solid Waste” or “MSW” means and includes all putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, rubbish, ashes, industrial wastes, demolition and construction wastes, manure, vegetable or animal solid and semiSolid Wastes, and other discarded solid and semiSolid Wastes, as defined in California Public Resources Code §40191 as that section may be amended from time to time. “State” means the State of California. “Subcontractors” includes any Person that provides goods or Services to Contractor, whether pursuant to formal, written agreement or merely in fact; subcontract means any arrangement, formal or informal, written or otherwise, between Contractor and a subcontractor for providing ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 1 Definitions Page vii of vii goods or Services. In no case shall the Contractor’s use of a subcontractor confer upon that subcontractor any third Party beneficiary rights under this Agreement. “Ton(nage)” means a short Ton of two thousand (2,000) standard pounds where each pound contains sixteen (16) ounces. “Transfer Vehicle” means a tractor and trailer designed to haul Solid Waste. “Uncontrollable Circumstance(s)” means any act, event or condition, whether affecting Services or (ii) either Party, that is beyond the reasonable control of the Party relying thereon and not the result of willful or negligent action or inaction of that Party (other than the contesting in good faith or the failure in good faith to contest that action or inaction), which materially and adversely affects the ability of either Party to perform any obligation under this Agreement, comprised of: An act of nature, landslide, lightning, earthquake, fire, tsunami, flood, or other natural disaster (excluding reasonably anticipated weather conditions within the jurisdictional Service area of the City), explosion, sabotage, terrorism, , war, blockade or insurrection, riot, civil disturbance, or other similar catastrophic events; The failure of any appropriate federal, State or local public agency or private utility having operational jurisdiction in the area in which the Landfill or Approved Processing Facility is located to provide and maintain utilities, services, water, sewer or power transmission lines thereto; Strikes, work stoppages or other labor disputes or disturbances directly affecting Contractor or any Affiliates performing Services, Persons other than Contractor, or Contractor’s or Affiliates’ inability to hire adequate numbers of personnel who are competent and skilled in the work to which they are assigned, for the first 96 hours of such strike or labor dispute or disturbance. “Violation” means any notice, assessment or determination of non-compliance with Applicable Law from any regulatory agency to Contractor, after the exhaustion of all appeals and judicial processes, if applicable, whether or not a fine or penalty is included, assess, levied or attached. “Working Days or Work Day (or other variations thereof)” means each day of the week excepting Saturdays, Sundays, and Holidays. “Yard Trimmings” means materials that shall decompose and/or putrefy, including, but not limited to, green trimmings, grass, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees, small pieces of unpainted and untreated wood, and other types of organic waste. Yard Trimmings are a subset of Organic Materials. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 5.2.2 Government Fees EXHIBIT 5.2.2 GOVERNMENT FEES AS OF DATE OF EXECUTION OF AGREEMENT Fee Description Fee Amount (per Ton) Stipulated Basis (Tons) Annual Fee Amount Material Type Local Enforcement Agency – Golden Bear Transfer Station & West Contra Costa Sanitary Landfill $1.75 6,502 $11,378.50 MSW City of Richmond Franchise Fee $1.50 6,502 $9,753.00 MSW Host Mitigation Fees (IRRF) $3.47 500 $1,735.00 Dry Waste Host Mitigation Fees (APPROVED TRANSFER FACILITY) $3.47 6,502 $22,561.94 MSW West Contra Costa Sanitary Landfill Recycling Fee – paid on all Recyclable Materials $0.93 4,400 $4,092.00 Organics and C&D Contra Costa County Solid Waste Fee (AB 939 at KCLF) $0.15 6,502 $975.30 MSW Disposal AB 1220 Integrated Waste Management Fee at KCLF $1.40 6,502 $9,102.80 MSW Disposal Contra Costa Bailey Road Surcharge (KCLF) $0.68 6,502 $4,421.36 MSW Disposal Bailey Road Charge (KCLF) $0.32 6,502 $2,080.64 MSW Disposal Contra Costa County Landfill Surcharge (KCLF) 25% of Gate Rate, net of taxes/fees 6,502 Tons $41,547.78 Calculated $34.50 minus per Ton fees X 0.25 / 1.25 ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 6.2 Insurance EXHIBIT 6.2 INSURANCE 1. General Liability Insurance Services Office form number GL 0002 covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001). $10,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. The Commercial General Liability Business policy must contain endorsements in substantially the following form: "Thirty (30) Calendar Days prior written notice shall be given to the City in the event of policy cancellation. Such Notice shall be sent via e-mail to [EMAIL REDACTED] and via mail to: City of El Cerrito Operations + Environmental Services Manager 10890 San Pablo Avenue, El Cerrito, CA 94530 "The City, its officers, employees, and agents are additional insureds on this policy." The City requires form CG2010 0704. "This policy shall be considered primary insurance as respects any other valid and collectible insurance maintained by the City, including any self-insured retention or program of self- insurance, and any other such insurance shall be considered excess insurance only." "Inclusion of the City as an additional insured shall not affect the City's rights as respects any claim, demand, suit or judgment brought or recovered against the Contractor. This policy shall protect Contractor and the City in the same manner as though a separate policy had been issued to each, but this shall not operate to increase the Contractor's liability as set forth in the policy beyond the amount shown or to which the Contractor would have been liable if only one Party had been named as an insured." 2. Automobile Liability Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 "any auto" and endorsement CA [PHONE REDACTED] (occurrence form). $10,000,000 combined single limit per accident for bodily injury and property damage. The Automobile Liability policy must contain the same endorsements as required for Comprehensive General Liability and MCS 90 endorsement. 3. Workers’ Compensation and Employers Liability Insurance. Workers’ compensation limits as required by State Labor Code Section 3700. The Workers' Compensation policy must contain a broad form waiver of subrogation: endorsement. The insurer must waive all rights of subrogation against the City, its officers, employees and volunteers for losses arising from work performed by the Contractor for the City, except for the willful misconduct or sole negligence of the City. 4. Pollution Legal Liability in the amount of ten million dollars ($10,000,000) covering liability arising from the release of pollution at the Landfill. The Pollution Legal Liability policy must contain the same endorsements as required for Comprehensive General Liability. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement EXHIBIT 8.15 PARENT GUARANTY AGREEMENT This Guaranty, made as of the date written below by Republic Services, Inc. (Guarantor), to and for the benefit of the City of El Cerrito (City), a municipal corporation of the State of California (State). WITNESSETH WHEREAS, the Contractor and the City have negotiated the Agreement for Solid Waste, and Organic Materials Transport, Processing, and Disposal Services dated as of the later of the date of execution thereof by the City or the Contractor, as may be supplemented and amended from time to time in accordance with the terms thereof (Agreement), which Agreement is incorporated in this Agreement by reference and by this Agreement made part of this Agreement; WHEREAS, it is in the interest of Guarantor that the Contractor enter into the Agreement with the City; WHEREAS, the City is willing to enter into the Agreement only upon the condition that the Guarantor execute this Guaranty; WHEREAS, in the event Contractor fails to timely and fully perform its obligations, including the payment of moneys, pursuant to the Agreement, Guarantor is willing to Guaranty, Contractor’s timely and full performance thereof; and WHEREAS, it is a condition precedent to the City’s obligations under the Agreement that the Guarantor provide this Guaranty. NOW, THEREFORE, as an inducement to the City to enter into the Agreement, the Guarantor agrees as follows: Capitalized terms used in this Agreement and not otherwise defined in this Agreement, shall have the meaning assigned to them in the Agreement. Guaranty of Contractor’s Performance Under Agreement. Guarantor by this Guaranty directly, unconditionally, irrevocably, and absolutely guaranties the timely and full performance of Contractor’s obligations under the Agreement in accordance with the terms and conditions contained therein or to cause that timely and full performance. Within thirty (30) Calendar Days written request therefore by the City, Guarantor shall honor the Guaranty. Notwithstanding the unconditional nature of the Guarantor’s payment obligations set forth in this Agreement, the Guarantor may assert the defenses provided in the paragraph entitled Defenses under Section 8 of this Guaranty, against claims made under this Guaranty. Governing law; consent to jurisdiction; service of Process. This Guaranty is governed by the laws of the State of California. The Guarantor by this Guaranty agrees to the service of Process in the State for any claim or controversy arising out of this Guaranty or relating to any breach. The Guarantor by this Guaranty agrees that the Superior Court of Contra Costa County, ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement and to the extent permitted by law, the United States District Court for the Northern District of California, shall have the exclusive jurisdiction of all suits, Actions, and other proceedings involving itself and to which the City may be Party for the adjudication of any claim or controversy arising out of this Guaranty or relating to any breach of this Guaranty, waives any objections that it might otherwise have to the venue of any Court for the trial of any suit, action, or proceeding, and consents to the service of process in any suit, action, or proceeding by prepaid registered mail, return receipt requested. Enforceability; no Assignment. This Guaranty is binding upon and enforceable against Guarantor, its successors, Assignees, and lawful representatives. It is for the benefit of the City, its successors and Assignees. The Guarantor may not Assign or delegate the performance of this Guaranty without the prior written consent of the City. Any Assignment made without the consent of City is voidable by the City. Together with its request for City consent, Guarantor shall pay City ten thousand dollars ($10,000) to pay City its reasonable expenses for private attorneys' fees and investigation costs ("Assignment expenses") necessary to investigate the suitability of any proposed Assignee, and to review and finalize any documentation required as a condition for approving any Assignment. City shall reimburse Guarantor the excess, if any, over those Assignment expenses it incurs. Contrariwise, Guarantor shall pay City the excess Assignment expenses, if any, over ten thousand dollars ($10,000) City reasonably incurs within thirty (30) Calendar Days of City’s request thereof. For purposes of this Guaranty “Assign” and “Assignment” means: selling, exchanging or otherwise transferring effective control of management of the Guarantor (through sale, exchange or other transfer of outstanding stock or otherwise); issuing new stock or selling, exchanging or otherwise transferring twenty percent (20%) or more of the then outstanding common stock of the Guarantor which results in a change of control of Guarantor; any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of Ownership or control of Guarantor; any Assignment by operation of law, including insolvency or bankruptcy, making Assignment for the benefit of creditors, writ of attachment of an execution, being levied against Guarantor, appointment of a receiver taking possession of any of Guarantor’s tangible or intangible property; and any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any transfer or change of Ownership or control of Guarantor. For purposes of determining Ownership, the constructive Ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date here, shall apply, provided that ten percent (10%) is substituted for fifty percent (50%) in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and Section 318(a)(5)(C) is disregarded. For purposes of determining Ownership under this paragraph and constructive or indirect Ownership under Section 318(a), Ownership interest of less than twenty percent (20%) is disregarded and percentage interests is determined on the basis of the percentage of voting interest or value which the Ownership interest represents, whichever is greater. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement Guaranty absolute and unconditional. The undertakings of Guarantor set forth in this Agreement are absolute and unconditional, and the City is entitled to enforce any or all of those undertakings against Guarantor without being first required to enforce any remedies or to seek to compel the Contractor to perform its obligations under the agreement or to seek, or obtain recourse against any other Party or Parties, including but not limited to the Contractor or any Assignee of the Contractor, who are, or may be, liable therefore, in whole or in part, irrespective of any cause or state of facts whatever. Without limiting the generality of the foregoing, the Guarantor expressly agrees that its obligations under this Guaranty shall not be affected, limited, modified or impaired by any state of facts or the happening from time to time of an event, other than the payment of monetary obligations by the Contractor to City under the Agreement in accordance with the terms of the Agreement, including, without limitation, any of the following, each of which is by this Guaranty expressly waived as a defense to its liability under this Guaranty, except to the extent those defenses would be available to the Contractor and release, discharge or otherwise offset Contractor’s obligations under the Agreement: the invalidity, irregularity, illegality or unenforceability, of any defect in or objections to the Agreement; any modification or amendment or compromise of or waiver of compliance with or consent to variation from any of the provisions of the Agreement by the Contractor; any release of any collateral or lien thereof, including, without limitation, any performance bond; any defense based upon the election of any remedies against the Guarantor of the Contractor, or both, including without limitation, any consequential loss by the Guarantor of its right to recover any deficiency, by way of subrogation or otherwise, from the Contractor or any other Person or entity; the recovery of any judgment against the Contractor to enforce any of that collateral or performance bond; the City or its Assignees taking or omitting to take any of the actions which it or any of that Assignee is required to take under the Agreement; any failure, omission or delay on the part of the City or its Assignees to enforce, assert or exercise any right, power or remedy conferred on it or its Assignees by the Agreement, except to the extent that failure, omission or delay gives rise to an applicable statute of limitations defense by the Contractor with respect to a specific obligation; the default or failure of the Guarantor to fully perform any of its obligations set forth in this Guaranty; the bankruptcy, insolvency, or similar proceeding involving or pertaining to the Contractor or the City, or any order or decree of a court, trustee or receiver in any proceeding; in addition to those circumstances described in item any other circumstance which might otherwise constitute a legal or equitable discharge of a Guarantor or limit the recourse of the City to the Guarantor; the existence or absence of any action to enforce the Agreement; subject to the provisions of the Agreement relating to Uncontrollable Circumstances, any present or future law or order of any government or of any agency thereof, ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement purporting to reduce, amend or otherwise affect the Agreement or to vary any terms of payment or performance under the Agreement; Provided that, notwithstanding the foregoing, Guarantor shall not be required to pay any monetary obligation of Contractor to City from which Contractor would be discharged, released or otherwise excused under the provisions of the Agreement. Waivers. Guarantor by this Guaranty waives: Notice of acceptance of this Guaranty and of the creation, renewal, extension and accrual of the limited financial obligations Guarantied under this Guaranty; Notice that any Person has relied on this Guaranty; diligence, demand of payment and Notice of default or nonpayment under this Guaranty or the Agreement, and any and all other Notices required under the Agreement; filing of claims with a court in the event of reorganization, insolvency, or bankruptcy of the Contractor; any right to require a proceeding first against the Contractor or with respect to any collateral or lien, including, without limitation, any performance bond, or any other requirement that the City exercise any remedy or take any other action against the Contractor or any other Person, or in respect of any collateral or lien, before proceeding under this Guaranty; any demand for performance or observance of, or (ii) any enforcement of any provision of, or (iii) any pursuit or exhaustion of remedies with respect to, any security (including, with limitation, any performance bond) for the obligations of the Contractor under the Agreement; any pursuit of exhaustion of remedies against the Contractor or any other obligor or Guarantor of the obligations; and any requirement of promptness or diligence on the part of any Person in connection therewith; and to the extent that it lawfully may do so, any and all demands or Notices of every kind and description with respect to the foregoing or which may be required to be given by any statute or rule of law, and any defense of any kind which it may now or hereafter have with respect to this Guaranty or the obligations of the Contractor under the Agreement, except any Notice to the Contractor required pursuant to the Agreement or Applicable Law which Notice preconditions the Contractor’s obligation or the defenses listed in Section below. To the extent that it may lawfully do so, the Guarantor by this Guaranty further agrees to waive, and does by this Guaranty absolutely and irrevocably waive and relinquish, the benefit and advantage of, and does by this Guaranty covenant not to assert, any appraisement, valuation, stay, extension, redemption or similar laws, now or at any time hereafter in force, which might delay, prevent or otherwise impede the due performance or proper enforcement of this Guaranty, the Agreement, or the obligations of the Contractor under the Agreement, and by this Guaranty expressly agrees that the right of the City under this Guaranty may be enforced notwithstanding any partial performance by the Contractor or the Guarantor, or the foreclosure upon any security (including, with limitation, any performance bond) given by the Contractor for its performance of any of its obligations under the Agreement. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement Agreements between City and Contractor; Waivers by City. The Guarantor agrees that, without the necessity for any additional endorsement or Guaranty by or any reservation of rights against Guarantor and without any further assent by Guarantor, by mutual agreement between the City and Contractor, the City and Contractor may, from time to time: renew, modify, or compromise the liability of the Contractor for or upon any of the obligations by this Guaranty Guarantied; or consent to any amendment or change of any terms of the Agreement; or accept, release, or surrender any security (including, without limitation, any performance bond), or grant any extensions or renewals of the obligations of the Contractor under the Agreement and any other indulgence with respect thereto, and to effect any release, compromise or settlement with respect thereto, all without releasing or discharging the liability of Guarantor under this Guaranty. The Guarantor further agrees that the City or any of its Assignees shall have and may exercise full power in its uncontrolled discretion, without in any way affecting the liability of the Guarantor under this Guaranty, to waive compliance with and any default of the Contractor under, the Agreement. Continuing Guaranty. This Guaranty is a continuing Guaranty and shall continue to be effective or be reinstated, as applicable, if at any time any payment of any of the obligations under this Guaranty is rescinded or is otherwise required to be returned upon reorganization, insolvency or bankruptcy of the Contractor or Guarantor or otherwise, all as though payment had not been made. Defenses. Notwithstanding any provision in this Guaranty to the contrary, the Guarantor may exercise or assert any and all legal or equitable rights, defenses, counter claims or affirmative defenses under the Agreement or Applicable Law which the Contractor could assert against any Party seeking to enforce the Agreement against the Contractor, and nothing in this Guaranty shall constitute a waiver thereof by the Guarantor. Payment of costs of enforcing Guaranty. Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorney’s fees, which may be reasonably incurred by the City in enforcing this Guaranty following the default on the part of the Guarantor under this Guaranty whether the same is enforced by suit or otherwise. (10) Enforcement. The terms of this Guaranty may be enforced as to any one or more breaches either separately or cumulatively. (11) Remedies cumulative. No remedy in this Agreement conferred upon or reserved to the City under this Guaranty is intended to be exclusive of any other available remedy or remedies, but each and every remedy is cumulative and is in addition to every other remedy given under the Guaranty and the Agreement or in this Agreement after existing at law or in equity or by statute. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement (12) Severability. The invalidity or unenforceability of any one or more phrases, sentences or clauses in this Guaranty contained shall not affect the validity or enforce ability of the remaining portions of this Guaranty, or any part thereof. (13) Amendments. No amendment, change, modification or termination of this Guaranty is made except upon the written consent of Guarantor and the City. (14) Term. The obligations of the Guarantor under this Guaranty shall remain in full force and effect until all monetary obligations of the Contractor under the Agreement shall have been fully performed or provided for in accordance with the Agreement, or (ii) the discharge, release or other excuse of those obligations in accordance with the terms of the Agreement. (15) No set-offs By Guarantor. The obligation of Guarantor under this Guaranty shall not be affected by any set-off, counterclaim, recoupment, defense or other right that Guarantor may have against the City on account of any claim of the Guarantor against the City; provided that Guarantor reserves the right to bring independent claims not arising from the Agreement against the City so long as any claims shall not be used to set-off or deduct from any claims which the City may have against the Guarantor arising from this Guaranty. By Contractor. The obligation of Guarantor under this Guaranty is subject to any set-off, counterclaim, recoupment, defense or other right that the Contractor may assert pursuant to the Agreement, if any, but the obligation of Guarantor under this Guaranty shall not be subject to any set-off, counterclaim, recoupment, defense or other right that the Contractor may assert independently of and outside the Agreement. (16) Warranties and representations. The Guarantor warrants and represents that as of date of execution of this Guaranty: The Guarantor has the power, authority and legal right to enter into this Guaranty and to perform its obligations and undertakings under this Guaranty, and the execution, delivery and performance of this Guaranty by the Guarantor have been duly authorized by all necessary corporate and shareholder action on the part of the Guarantor, (ii) have the requisite approval of all federal, State and local governing bodies having jurisdiction or authority with respect thereto, (iii) do not violate any judgment, order, law or regulation applicable to the Guarantor, (iv) do not conflict with or constitute a default under any agreement or instrument to which the Guarantor is a Party or by which the Guarantor or its assets may be bound or affected, and do not violate any provision of the Guarantor’s articles or certificate of incorporation or by- laws; This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms; and There are no pending or, to the knowledge of the Guarantor, threatened Actions or proceedings before any court or administrative agency which would have a material ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement adverse effect on the financial condition of the Guarantor, or the ability of the Guarantor to perform its obligations or undertakings under this Guaranty. (17) No merger; no conveyance of assets. Guarantor agrees that during the term of this Guaranty in accordance with Section (14) Guarantor shall not consolidate with or merge into any other corporation where the shareholders of the Guarantor yield control of the Guarantor, or a majority interest in the Guarantor, to the newly formed corporation, or convey, transfer or lease all or substantially all of its properties and assets to any Person, firm, joint venture, corporation and other entity, unless the City consents thereto in accordance with Section above. (18) Counterparts. This Guaranty may be executed in any number of counterparts, some of which may not bear the signatures of all Parties to this Guaranty. Each counterpart, when so executed and delivered, is deemed to be an original and all counterparts, taken together, shall constitute one and the same instrument; provided, however, that in pleading or proving this Guaranty, it shall not be necessary to produce more than one copy (or sets of copies) bearing the signature of the Guarantor. (19) Notices. All notices, instructions and other communications required or permitted to be given to or made upon any Party to this Guaranty is in writing, and is given in the manner and to the addresses provided in the Agreement. (20) Separate suits. Each and every payment default by Contractor under the Agreement shall give rise to a separate cause of action under this Guaranty, and separate suits may be brought under this Guaranty by the City or its Assignees as each cause of action arises. (21) Headings. The Section headings appearing in this Agreement are for convenience only and shall not govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Guaranty. (22) Entire Agreement. This Guaranty constitutes the entire agreement between the Parties to this Guaranty with respect to the transactions contemplated by this Guaranty. Nothing in this Guaranty is intended to confer on any Person other than the Guarantor, the City and their permitted successors and Assigns under this Guaranty any rights or remedies under or by reason of this Guaranty. (23) Personal Liability. It is understood and agreed to by the City that nothing contained in this Agreement shall create any obligation or right to look to any director, officer, employee or stockholder of the Guarantor (or any Affiliate thereof) for the satisfaction of any obligations under this Guaranty, and no judgment, order or execution with respect to or in connection with this guaranty is taken against any director, officer, employee or stockholder. (24) Events of Default. Each of the following shall constitute an event of default under this Guaranty: Failure to fulfill payment of guaranty. Guarantor fails to fulfill full and timely payment of any guaranty under this Guaranty, including Section and the failure ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement continues for five Calendar Days after Notice (which is deemed given upon receipt of registered or certified mailing by U.S. Postal Service or of invoiced Commercial Service) (Hereunder defined as Notice) has been given to the Guarantor by the City; fails to perform any of its obligations under this Guaranty or engages in any acts prohibited under this Guaranty other than failures itemized below, and fails to cure that failure or conduct within thirty (30) Calendar Days; Breach of Guaranty. The Guarantor fails to observe and perform any covenant, condition or agreement of this Guaranty, other than any failures listed explicitly in this Section, and that failure continues for more than thirty (30) Calendar Days after Notice has been given the Guarantor by the City; Failure to give Notice of proposed Assignment. The Guarantor fails to give City notice in accordance with Section (19) within ten (10) Calendar Days of the first to occur of: i. Contractor or any Affiliate issuing a press release as to any proposed Assignment, (within the meaning of Section or consolidation, merger, conveyance, transfer or lease described in paragraph of this Section (24) or; ii. (ii) the filing with the Securities and Exchange Commission of a Form 8-K or other filing with respect to a memorandum of intent or an agreement and plan thereof. iii. (paragraphs and (ii) together defined as Change Notice); Consolidation, merger; conveyance of assets. The Guarantor consolidates, merges or conveys, transfers or leases assets in Violation of Section (17) despite City action following Change Notice in preceding paragraph withholding or denying City consent, and on or before fifteen (15) Calendar Days thereafter, does not provide City with a substitute Guarantor satisfactory to City; Bankruptcy, insolvency, liquidation. Guarantor files a voluntary claim for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent to the appointment of or taking of possession by a receiver, liquidator, Assignee, trustee, custodian, administrator (or similar official) of Guarantor for any substantial part of Guarantor's operating assets or any substantial part of Guarantor's property, or shall make any general Assignment for the benefit of Guarantor's creditors, or shall fail generally to pay Guarantor's debts as they become due or shall take any action in furtherance of any of the foregoing. A court having jurisdiction enters a decree or order for relief in respect of the Agreement, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or Guarantor consents to or fails to oppose any proceeding, or any court enters a decree or order appointing a receiver, liquidator, Assignee, custodian, trustee, sequestrator (or similar official) of the Guarantor or for any substantial part of the Guarantor's operating equipment or assets, or orders the winding up or liquidation of the affairs of the Guarantor; ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 8.15 Parent Guaranty Agreement Breach of representations or warranties. Any representation or warranty of Guarantor is untrue as of the date thereof; Guarantor knowingly makes, causes to be made or condones the making of any false entry in its books, accounts, Records, and reports under this Guaranty. Upon any Event of Default the City may proceed first and directly against the Guarantor under Guaranty without proceeding against or exhausting any other remedies which it may have. The Guarantor acknowledges that any Contractor Default comprises a Default under the Agreement. IN WITNESS WHEREOF Guarantor has executed this instrument the day and year first below written. {Insert appropriate signature block} Proper notarial acknowledgment of execution by Guarantor must be attached. Chairman, president or vice-president, and secretary, assistant secretary, CFO or assistant treasurer, must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 Exhibit 9.2 Corporate Secretary’s Certificate EXHIBIT 9.2 CORPORATE SECRETARY’S CERTIFICATE The undersigned, being the Secretary of a Company Name California corporation (“the Company”), do hereby certify that the following resolution was adopted by the Board of Directors of the Company and that such resolution has not been amended, modified or rescinded and is in full force and effect as of the date hereof: RESOLVED, that be, and hereby is, authorized to Name of Designated Representative execute by and on behalf of the Company the Agreement between the City of El Cerrito and the Company for Post-Collection Services and any and all other agreements, instruments, documents or papers, as he/she may deem appropriate or necessary, pertaining to or relating to such Agreement, and that any such action taken to date is hereby ratified and approved. Dated: Signature Title