waste franchise report

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AGENDA REPORT CITY OF OAKLAND 2814 SEP 19 PM12:30

TO: HENRY L. GARDNER F R O M : Brooke A. Levin ' CITY ADMINISTRATOR ' ; '

SUBJECT: Amendment of Ordinances Awarding DATE: September 19, 2014 Zero Waste Contracts

City Administrator O V i '. Date ^ Approval — '

COUNCIL DISTRICT: City-Wide

RECOMMENDATION - '' i ,, , • • •

Staff recommends that the City Council adopt following legislation:

1. Ordinance Amending Ordinance No. 13253 C.M.S., Which Granted A Franchise For Mixed Materials And Organics Collection Services To California Waste Solutions, Inc., To Instead Grant The Franchise For Mixed Materials And Organics Collection Services To Waste Management Of Alameda County, And/Or Such Other Affiliate Entity Approved By The City Administrator, Contingent On Its Execution Of A Mixed Materials And Organics Collection Services Contract With The City, And Authorizing The City Administrator To Negotiate And Execute Such A Contract Which May Regulate Maximum Service Rates For Mixed Materials And Organics Collection Services, Residential Recycling Services, And Disposal Services, And Setting Forth Procedures To Allow For Adjustment Of Maximum Service Rates, On Such Terms And Conditions And Rates Approved By The City Council

2. Ordinance Amending Ordinance No. 13255 C.M.S., Which Authorized The City Administrator To Execute An Exclusive Contract For Landfill Disposal Services With California Waste Solutions, Inc., To Instead Authorize The City Administrator To Execute An Exclusive Contract For Landfill Disposal Services With Waste Management Of Alameda County, And/Or Such Other Affiliate Entity Approved By The City Administrator, On Such Terms And Conditions And Rates Approved By The City Council ,

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EXECUTIVE SUMMARY • ••,"

California Waste Solutions (CWS) and Waste Management of Alameda County (WMAC) signed a memorandum of agreement (MOU). The MOU (Attachment A) provides for cooperation for

[ , y ' : r ' ' '. Item: ' ^ City Council

• • ; , % , " September 22,2014

Henry L. Gardner, City Administrator Subject: Award of Zero Waste Franchise Agreements Date: September 19,2014

the implementation of Oakland's Zero Waste services on terms agreed to by CWS and WMAC. The terms of this MOU could be implemented by the City through amendment of the ordinances that awarded the Mixed Materials and Organics and Landfill Disposal contracts to CWS, and award the contracts to WMAC instead. CWS has requested that these two ordinances be amended as described.

Although staff did not participate in development or negotiation of the MOU, it is recommended that City Council to consider amending the two ordinances to facilitate MOU implementation because this action would confer several benefits to the City and the ratepayers alike. The benefits include mixed material processing on day one of the contract, an important step toward achieving the City's zero waste and greenhouse gas emissions reduction goals. The contracts would be awarded to two companies with deep roots in OEikland, and provide for a significant level of cooperation between them to smooth potential transitional issues in July 2015 for the benefit of the community. The potential for displacement of current employees of the two companies, including many current Oakland residents, is eliminated. All programs and services previously required by the City Coxmcil in its earlier award of these two contracts will be incorporated into the new contracts.

OUTCOME

Approval of the amended Ordinances would allow the City Administrator to execute contracts (Attachments B and C) that would replace the existing service agreements with Waste Management of Alameda County (WMAC) and California Waste Solutions (CWS), which expire on June 30, 2015. Execution of new contracts at this time is necessary to ensure continuity of solid waste collection eind disposal services on July 1, 2015, which are vital to public health and safety in the City of Oakland.

BACKGROUND/LEGISLATIVE HISTORY

At a Special Meeting on August 13, 2013, the City Council approved three ordinances that authorized the City Administrator to finalize and implement contracts with CWS for Mixed Materials and Organics Collection Services (MM&O), Residential Recycling Collection Services (RR), and Landfill Disposal Services.

On August 18, 2014, a lawsuit was filed against the City of Oakland by WMAC, claiming that the City Council violated its own policies and processes in awarding the three Zero Waste Services contracts to CWS on August 13, 2014.

On or about August 29, 2014, three referenda to overturn the three ordinances the City Council approved on August 13, 2014 were launched; if successful, would suspend the three ordinances awarding contracts to CWS for the Zero Waste Services, and allow Oakland voters to approve the ordinances through an election process.

Item: City Council

September 22, 2014

Henry L. Gardner, City Administrator Subject: Award of Zero Waste Franchise Agreements Date: September 19, 2014

ANALYSIS

Through authority granted to the City Administrator by the City Council to negotiate the final terms of the MM&O and RR contracts, final contract provisions will address the following elements as agreed by CWS and WMAC in the MOU: *

• Single family dwelling (SFD) 32-gallon rate of $36.82 per month, which is the same rate approved by the City Council on August 13, 2014.

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Civicorps - WMAC agrees to the same provisions to which CWS had agreed, per City Council's Motion on August 13, 2014: "(WMAC) will developed plans with Civicorps to provide training of interns without impact or displacement of permanent union jobs. The arrangement will be subject to the approval of the City Administrator."

East Bay Municipal Utility District (EBMUD) - WMAC will develop plans to deliver Commercial Organic Material to EBMUD, and shall enter into a separate processing agreement with EBMUD for these materials, subject to approval of the City Administrator, using EBMUD's existing and already permitted facilities.

Recycling Sorter Wages - CWS and WMAC agree to increase sorters' wages to $20.94 by 2019, and to provide affordable family healthcare coverage. »

Multi family dwelling (MFD) green cart service - WMAC will provide source-separated organics (green cart) collection service to all MFD.

Illegal dumping pickups - As was included in the July 30, 2014 contract, WMAC will provide 25 pickups per day of illegal dumping. .

Rate Summary ' Table 1 shows the rates and rate impacts, for representative service levels in the single family, multi-family and commercial sectors.

Table 1: Monthly Rate and Impact Service Monthly

Rate* Rate

Impact Single Family (32-gallon cart) $ 36.82 23.56% Multi Family (20-unit building) $616.90 30.09% Commercial (1 cu. yd. bin) $194.10 38.76%

or such higher or lower rates as approved by the City Council pursuant to

Item: City Council

September 22, 2014


, proposal by the franchisee *\ ' J •

Table 2 breaks out the MM&O, RR and Disposal cost components for the 32-gallon single-family (SFD) residential cart rate. The rate includes Council requested ILWU Local 6 sorter wages and benefits. , .

Table 2: 32-gal SFD Cart Rate - MM&O/RR/Disposal Rate Components

; Service

Current Monthly

Rate FY

2014/15

MM&O - WMAC Disposal - WMAC

RR - CWS ; Service

Current Monthly

Rate FY

2014/15 Monthly Rate* Rate Impact

Sing

le F

amily

(32-

gallo

n ca

rt)

MMO Collection Element

^ $25.26 [f^^'

Sing

le F

amily

(32-

gallo

n ca

rt)

MMO Disposal Element

' $2.39 .

Sing

le F

amily

(32-

gallo

n ca

rt)

Recycling $9.17

Sing

le F

amily

(32-

gallo

n ca

rt)

Total Rate $29.80 $36.82 23.56%

* or such higher or lower rates as approved by the City Council pursuant to proposal by the franchisee

Table 3 shows annual rate adjustments for the Residential Recycling (RR) component of the 32-gallon single-family residential rate based on the agreement between CWS and WMAC. The additional $0.97 rate increase in each of contract years 2, 3, and 4 would become part of base rates and be compounded by each subsequent aimual Refuse Rate Index (RRI) adjustment over the entire RR contract term. "

Table 3: Residential Recycling Annual Rate Adjustment for 32-gal SFD Cart Rate

Year 1 Base Rate* $ 9.17/ per month Year 2 Adjustment Prescribed RRI + $0.97 Year 3 Adjustment Prescribed RRI + $0.97 Year 4 Adjustment Prescribed RRI + $0.97 Year 5 & beyond Adjustment ' Prescribed RRI

* or such higher or lower rates as approved by the City Council pursuant to proposal by the franchisee

f t •

Item: City Council

September 22, 2014

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The MOU contains the following provisions:

• The MOU states that the term of the RR contract will be twenty years. CWS has clarified that the term would be 20 years plus two five-year extensions at the City's sole option. However the RR contract published with July 30, 2014 Council report has a term of ten years with two (2) five-year extensions. Should CWS pursue on extension past the 20-year maximum term already approved by City Council, amendment of Ordinance No. 15254, which awarded the RR franchise to CWS, to authorize the City Administrator to extend the term would be necessary.

• The MOU includes the statement, "CWS shall have the power and authority to resolve all contamination issues with respect to RR customers." The City will work with CWS to develop a recycling contamination correction process that is fair to residents, and which includes progressive notification resulting in either the correction of contamination or assessment of contamination charges.

• CWS will use existing RR carts, including the use of WMAC's RR carts in the current WMAC RR service area. CWS will replace up to 20% of RR carts in the first year.

• WMAC will use existing MM&O carts, bins and debris boxes. WMAC will replace up to 20% of carts in the first year.

Call Center The City Council set policy direction to require the MM&O contractor to identify that the customer service call center be located in Alameda County. The RFP invited proposers to provide an alternative with pricing for a call center outside of the county. Rate options for an in-county call center were presented to the City Council on May 29, 2014. WMAC has indicated that the cost of an in-county call center would add 1.95%> to the rates and would have to be added to the MM&O contract. Table 4 shows rate impacts on the 32-gallon SFD residential cart rate for an in-County call center.

Item: City Council

September 22, 2014


Table 4: In-County Call Center Rate Impacts on 32-gal SFD Cart Rate

Service

Current Monthly

Rate FY

2014/15

Monthly Rate* Rate Impact

Single Family

(32-gallon cart)

Proposed Rate $29.80 $ 36.82 23.56%

Single Family

(32-gallon cart)

Add Local Call

Center $ 0.54 1.81%

Single Family

(32-gallon cart)

Total $ 29.80 $ 37.36 25.37%

* or such higher or lower rates as approved request by the franchisee

5y the City Council pursuant to

Award of the MM&O and Landfill disposal contracts are contingent on: 1) dismissal with prejudice of following litigation in Waste Management of Alameda Coimty, Inc. v. City of Oakland, Alameda County Superior Court Case No. RG14737204, and 2) submission to the Oakland City Clerk of written notices of withdrawal of referenda measures signed by all proponents, pursuant to California Elections Code Section 9604(c), on City Ordinance Nos. 13253, 13254, and 13255 C.M.S., which awarded franchise agreements to California Waste Solutions for Garbage Collection, Recycling Services and Disposal/Landfill, and no petition for a referendum on any of the above-referenced ordinances being submitted to or filed with the Oakland Clerk within the 30-day period provided for referendum petitions under California Elections Code Section 9237. These awards shall be null and void if the lawsuits are not dismissed with prejudice and the referenda are not withdrawn, or if a petition for a referendum is filed.

PUBLIC OUTREACH/INTEREST

This item did not legally require any additional public outreach other than that required by the State BrovvTi Act and City's Sunshine Ordinance, but the City did provide email notice to interested parties.

COORDINATION

Public Works Department staff has coordinated closely with the Office of the City Attorney for this report and amendment of the two ordinances.

Item: City Council

September 22, 2014


COST SUMMARY/IMPLICATIONS V ^ *

Adoption of these ordinances will sustain the City's franchise fees ($28 million) at the same level as today. The majority of fees (70%) are used to support City sanitation services provided by the Public Works Department, including street sweeping, graffiti and illegal dumping abatement, parks litter removal. Eighteen percent of the fees go into the General Fund and eleven percent is used to support mandated Integrated Waste Management Act (AB939) program development and planning for solid waste reduction and recycling, franchise contract management, environmental compliance, and related activities. .. . <

SUSTAINABLE OPPORTUNITIES t

Economic: Expanding and actively supporting use of discarded materials drives local economic and workforce development with 'green collar'jobs and value added production.

Environmental: Waste reduction and recycling conserves natural resources, reduces air and water pollution, protects habitat, and reduces greenhouse gas (GHG) emissions.

Social Equity: Increased jobs through additional diversion of materials from the landfill.

C E Q A '-'v, ^ •

For award of the Franchise Agreement(s) to WMAC through these two amended Ordinances, City staff (Public Works and Planning & Building) determined that the City Council's actions are exempt from the California Environmental Quality Act (CEQA), because award of these franchise agreements would be a continuation of existing programs, but with greater environmental benefits. These added environmental benefits are created by shifting from a diesel-fueled fieet to a compressed natural gas fleet, and diverting greater amounts of recyclables and organics from landfill disposal.

The City has independently reviewed, considered and confirmed the environmental analyses conducted (Attachment D); these analyses conclude that there would not be the potential for significant environmental impacts under any of the options, therefore no further environmental review is required. Specifically, the project is exempt from CEQA pursuant to the following CEQA Guidelines, each of which provides a separate and independent basis for CEQA compliance and when viewed collectively provide an overall basis for CEQA compliance:

Section 15301: Ongoing operation of existing facilities; Section 15307: Action for the protection of natural resources; Section 15308: Action for the protection of the environment; Section 15183: Approvals consistent with Community Plans

Item: City Council

September 22, 2014

Henry L. Gardner, City Administrator * * ^ Subject: Award of Zero Waste Franchise Agreements Date: September 19, 2014 Pages

• Section 15273: City approval to change the rates; and/or ' . ' • Section 15061(b)(3): Common sense exemption because project does not have potential

to cause significant effect on the environment

For questions regarding this report, please contact Becky Dowdakin, Environmental Services Manager, 510-238-6981.

Respectfully submitted,

BROOKE A. LEVIN Director, Public Works Department

Prepared by:

Susan Kattchee, Assistant Director

Prepared by: Becky Dowdakin, Acting Environmental Svcs. Manager

Attachment A: Memorandum of Agreement between CWS and WMAC * Attachment B: Mixed Materials and Organics Collection Services Contract Attachment C: Landfill Disposal Services Contract , , Attachment D: Environmental Analysis

Item: City Council .

September 22, 2014

ATTACHMENT A

0 . \KI . \HD ' ' i . - ^: qr>.. nnr. . MEMORANDUMN OF AGREEMENT BETWEEN ; 2flMSEPI9 PHI2:3I

CALIFORNIA WASTE SOLUTIONS, INC.

WASTE MANAGEMENT OF ALAMEDA COUNTY, INC.

RESOLVING PENDING LITIGATION AND ACTION AND

PROVIDING FOR COOPERATION FOR IMPLEMENTATION OF

^ / OAKLAND ZERO WASTE PROGRAM f

This Agreement is effective September 18, 2014, subject to approvals as provided herein, including, but not limited to, the approvals required by the City of Oakland. Waste Management of Alameda County, Inc. (WMAC) and California Waste Solutions, Inc. (CWS), hereinafter the "Parties" agree to the following outline of a compromise of their differences regarding the Oakland Zero Waste contracts:

1. WMAC will dismiss with prejudice its lawsuit against CWS and the City of Oakland (the City), with a corresponding release and/ or forbearance of any and all claims CWS and/or the City have, or could assert, against WMAC

^ "j, •? and/or its affiliates 2. Providing the City rescinds its existing Zero Waste Ordinances that are the

'' 'Xt . . subject of the current Referendum efforts,, WMAC will end its financial . ' support of tte Referendum challenging the award of the Zero Waste Contracts

, , - by the City to CWS and will exercise its good faith best efforts to cause the ^ proponents of the Referendum not to file signatures with the City. WMAC

V • - understands that if signatures are delivered to the City, then CWS will have no obligation to perform hereunder and the parties expect that the City will not be supportive of a Zero Waste contract with WMAC. '

• ' 3. The Parties will jointly consider strategic business opportunities in the solid » , * waste business and work collaboratively on both public education and other

performance requirements of the Zero Waste program.

4. WMAC will perform all MMO and Disposal services, subject to the negotiation of a mutually acceptable contract and rate terms between WMAC and the City of Oakland. CWS will perform RR services, subject to the negotiation of a mutually acceptable contract and rate terms between CWS

- v; and the City of Oakland. As discussed with City, it is contemplated by the Parties that the total rates from CWS and WMAC will not exceed the amount of revenue in WMAC's August 12, 2014 final written proposal to the City.

5. CWS expects to negotiate a contract with the City at the level of the rates •'• ' heretofore approved for RR based on diesel trucks but will utilize CNG trucks : ' • ( ($8.85 plus ILWU wage and benefit, plus COLA/RRI plus $0.97 per year for

Z0026002/1906419-2

years two, three and four) as provided in Zero Waste RR Contract. The term of the RR contract will be for a twenty year term.

6. WMAC expects to negotiate a mutually acceptable contract with the City that contemplates revised commercial, multifamily, and roll off rates but WMAC shall not exceed the residential rates approved by the City for the CWS MMO contract and the Disposal Contract. -J.

7. WMAC will work with Civicorps and EBMUD as CWS was directed by prior City action.

8. WMAC will not oppose CWS development or improvements to CWS' .. Gateway Facility, Wood Street Facility,10"'Street Facility, or other facilities in support thereof (collectively, the 'CWS Facilities") directly or indirectly. WMAC will not support, directly or indirectly, any CEQA challenge regarding the CWS Facilities or the Zero Waste contracts. CWS has, in the past, provided services for WMAC from CWS Facilities and may in the v future.

9. WMAC will take on financial responsibility for all trucks already ordered by CWS that are designed for use in performing the MM&O contracts; this obligation does not include trucks necessary for CWS performance of RR -obligations. ' ' si

10. WMAC agrees to allow CWS free use of existing WMAC RR carts. WM will pick up used carts from CWS when notified by CWS within 48 hours.

11. CWS shall have the power and authority to resolve all contamination issues with respect to RR customers. CWS will be entitled to recover MMO Overage Rate for collecting contaminated RR.

12. The parties will cooperate on 7/1/15 transition of services. ' -13. The parties' Zero Waste work will be branded under a name to be agreed upon ,,

(along the lines of "Zero Waste Program"). The joint branding will appear on trucks, billings and other promotional materials.

14. WMAC will pay CWS $2,500,000 in settlement of all costs and fees and other claims arising with respect to the law suit and the referendum. %• •

15. WMAC will acquire a ten year Right of First Refusal (ROFR) for any of CWS recycling businesses in Alameda County for a total value and purchase price of $12,500,000. Payment will be $2,500,000 upon execution of the ROFR upon City approval of MMO, RR and Disposal as provided herein. ' . ' The balance with interest at the rate of 3.5% per annum will be payable in • level payments over ten years, commencing of July 1, 2015.

The parties agree that items 1 through 15, above, accurately reflect their obligations to one another. The mutual obligations of the parties are contingent on award of new Zero Waste ," • contracts by the City with terms in accordance with the foregoing points. This Agreement may be signed in counter parts.

Z0026002/1906419-2 '•• ' •• .. ' "

The Parties agree that they have taken no actions and will take no action that in any way diminishes or affects their ability to perform any contract or obligation to the City based on any discussions of proposed terms of a settlement and in advance of express approval by the City. Consistent with the prior discussions with the City, the Parties agree to provide a copy of this Memorandum to the City in connection with its consideration of taking any action on the matters referenced herein, and this agreement shall be contingent upon the City's exercise of the powers delegated to it by the State of California pursuant to Public Resources Code Section 40059 et. seq. to adopt ordinances that are consistent with the terms of this agreement.

Dated:

Dated l^"?oiy.

74^

CWS P^jr^^.

• V - '

.jr.

Z0026002/1906419-2

- - A , 5*-

4 '

ATTACHMENT B 7T -:^~ Final Circulation Draft

*Subject to such terms & conditions approved by the City Council September 19, 2014

MIXED MATERIALS & ORGANICS COLLECTION SERVICES

CONTRACT

Executed between

City of Oakland

and

Waste Management of Alameda County, Inc.

July 1,2015

..... ^ . .^V' 'ri . - : . •

Mixed Materials and Organics Collection Services Contract 9/19/14

City of Oakland

Final Circulation Draft *Subject to such terms & conditions approved by the City Council

September 19, 2014 This page intentionally left blank. • : ' •

City of Oakland • - ; Page


TABLE OF CONTENTS

Collection Services Contract Article 1. Definitions 2

Article 2. Representations and Warranties of CONTRACTOR 12

Article 3. Term of Contract 14

Article 4. CONTRACTOR'S Covenants; CITY Option to Terminate 14

Article 5. Services Provided by CONTRACTOR 15

Article 6. Service Standards 16

Article 7. Charges and Rates 24

Article 8. Diversion Requirements 39

Article 9. SFD Collection Services 40

Article 10. MFD Collection Services 44

Article 11. Commercial Collection Services 48

Article 12. CITY Collection Services 51

Article 13. Collection Routes 55

Article 14. Collection Equipment 56

Article 15. Local Office 58

Article 16. Customer Service 59

Article 17. COMMUNITY Outreach Services 60

Article 18. Emergency Service Provisions 63

Article 19. Record Keeping & Reporting Requirements 63

Article 20. Nondiscrimination 66

Article 21. Service Inquiries and Complaints 66

Article 22. Quality of Performance of CONTRACTOR 67

Article 23. Billing Audit and Performance Reviews 73

Article 24. Performance Security 74

Article 25. Insurance 75

Article 26. Indemnification 78

Article 27. Defense of CONTRACTOR'S Rights 81

Article 28. Obligation to Provide Service 82

Article 29. Default of Contract 86

Article 30. Modifications to the Contract 89

Article 31. Legal Representation 94

C I T Y I OF


Article 32. Financial Interest 94

Article 33. CONTRACTOR'S Personnel 95

Article 34. Unacceptable Waste 95

Article 35. Independent CONTRACTOR 95

Article 36. Laws to Govern 96

Article 37. Consent to Jurisdiction 96

Article 38. Assignment 96

Article 39. Compliance with Laws 98

Article 40. Permits and Licenses 98

Article 41. Ownership of Written Materials 98

Article 42. Waiver 98

Article 43. Point of Contact 98

Article 44. Conflict of interest 99

Article 45. Notices 99

Article 46. Transition to Next CONTRACTOR 100

Article 47. CONTRACTOR'S Records 101

Article 48. Entire Contract 101

Article 49. Severability 101

Article 50. Right to Require Performance 101

Article 51. Corporate Guaranty 101

Article 52. EMPLOYEE RETENTION REQUIREMENTS 102

Article 53. Subcontracting 102

Article 54. [RESERVED] 102

Article 55. LOCAL HIRE Compliance 102

Article 56. Religious Prohibition 103

Article 57. Political Prohibition AND Campaign Contributions 103

Article 58. Business Tax Certificate 103

Article 59. Attorneys Fees 103

Article 60. Limitation of felony disclosure on job application 104

Article 61. Competitive Wages and benefits 104

Article 62. Validity of Contracts 104

Article 63. Equal benefits Ordinance 104

Article 64. Labor Peace 105

Article 65. Amendment 105

Page CITY I OF ' . - I ' ^ O A K L A N D " • • • . '• '. r


Article 66. All Prior Contracts Superseded 105

Article 67. Headings 105


Article 69. Exhibits 105

Article 70. Effective Date 105

Exhibit 1 Maximum Service Rates 108

Exhibit la Maximum Service Rates - SFD Services 108

Exhibit lb Maximum Service Rates - MFD Services 108

Exhibit 1c Maximum Service Rates - Commercial Services 108

Exhibit Id Maximum Service Rates - SFD, MFD and Commercial Roll-Off Box Services 108

Exhibit 1e Maximum Service Rates - Emergency Service Rates - Employees 108

Exhibit If Maximum Service Rates - Emergency Service Rates - Equipment 108

Exhibit 1g Maximum Service Rates - Special Events Services 108

Exhibit 1h Maximum Recycling Service Rates 109

Exhibit 2 Refuse Rate Index 121

Exhibit 3 Approved Facilities 124

Exhibit 4 CITY Facilities 125

Exhibit 5 CITY-Sponsored Events 126

Exhibit 6 Transition Plan 127

Exhibit 7 Community Outreach Strategy 128

Exhibit 8 Diversion Plan 129

Exhibit 9 Customer Service Plan 131

Exhibit 10 Collection Services Operations Plan 132

Exhibit 11 HHW Collection Plan 133

Exhibit 12 Vehicle Specifications 134

Exhibit 13 Container Specifications 135

Exhibit 14 Bulky Goods Collection Service Agreement 136

Exhibit 15 Memorandum of Understanding 146

Exhibit 16 Local Business Presence and Participation Reporting Form 147

Exhibit 16 A Local Business Presence and Participation Requirements 148

Exhibit 17 Employee and Labor Relations Plan 149

Exhibit 18 Guaranty Agreement 150

Exhibit 19 Business Tax Certificate 160

City of Oakland ^ , * , . - Page

CITY f OF f~\ A V I A M r \


ATTACHMENT 1

ATTACHMENT 2

ATTACHMENT 3

Contract between the CITY of Oakland and Disposal Contractor (To be inserted after award)

Contract between the CITY of Oakland and Residential Recycling Contractor (To be inserted after award)

City of Oakland Required Forms (To be inserted after award)

CITY f OF O A K L A N D

Page iv


1 CITY OF OAKLAND '

2 This Contract made and entered into [Insert Date] (the "Effective Date"), by and between the 3 City of Oakland, in the state of California, hereinafter referred to as "CITY" and WASTE 4 MANAGEMENT OF ALAMEDA COUNTY, INC., a California corporation, hereinafter referred to 5 as "CONTRACTOR."

^ . < ,f - . .t

6 , V RECITALS

7 WHEREAS, the legislature of the state of California ("State"), by enactment of the California

8 Integrated Waste Management Act of 1989 ("Act") and subsequent additions and amendments 9 (codified at California Public Resources Code section 40000 et seq.). has declared that it is in

10 the public interest to authorize and require local agencies to make adequate provisions for Solid 11 Waste Collection within their jurisdiction; 12 WHEREAS, the State, through enactment of the California Integrated Waste Management Act of 13 1989 (California Public Resources Code section 40000, et seg.) also recognizes the important 14 health and safety consideration to long-term planning for local government's adequate Disposal 15 needs. The California Integrated Waste Management Act of 1989 declares that the 16 responsibility for management of Solid Waste is a shared responsibility between the State and 17 local governments. The State requires local governments to make adequate provision for at 18 least fifteen (15) years of Garbage Disposal capacity to preserve the health, safety and well-19 being of the public. The California Integrated Waste Management Act of 1989, Oakland City 20 Charter Article X and Oakland Municipal Code Chapter 8.28 also authorize local governments to 21 enter into exclusive franchise contracts to provide Garbage handling services for the health, 22 safety and well being of its citizens (California Public Resources Code section 40059); 23 WHEREAS, pursuant to California Public Resources Code section 40059(a) as may be 24 amended from time to time, as well as Oakland City Charter Article X and Oakland Municipal 25 Code Chapter 8.28, the CITY has determined that the public health, safety, and well-being 26 require that an exclusive right be awarded to a qualified CONTRACTOR to provide for the 27 Collection of Mixed Waste and Organic Materials, except for Collection of materials excluded by 28 the CITY'S Municipal Code and this Contract, and other services related to meeting the Act's 29 fifty (50) percent Diversion goal and other requirements of the Act; 30 WHEREAS, in 1990 the Alameda County Waste Reduction and Recycling Initiative Charter 31 Amendment established a county-wide solid waste diversion rate goal of seventy-five (75) 32 percent by 2010; 33 WHEREAS, in 2002 the City Council of the City of Oakland passed Resolution No. 77500 34 C.M.S., to adopt a goal of seventy-five (75) percent reduction of waste going to landfills by 2010 35 in support of the Measure D goal, and the implementation date established by the Alameda 36 County Source Reduction and Recycling Board;

37 WHEREAS, in 2006 the City Council of the City of Oakland approved Resolution No. 79774 38 C.M.S. which adopted a Zero Waste Goal by 2020;

39 WHEREAS, in 2006 the City Council of the City of Oakland passed Resolution No. 80286 40 C.M.S., adopting a Zero Waste Strategic Plan;

City of Oakland ^ ; ' . ' Page 1


J . ' ••, . . " ' .

41 WHEREAS, it is the intent of the CITY to provide for the Collection and Processing of certain 42 subsets of Solid Waste defined as Mixed Materials, Garbage, Organic Materials and Bulky 43 Goods in Article 1 of this Contract; WHEREAS, the CITY has entered into Contracts to provide: 44 (i) Residential Recycling Collection Services; and (ii) Disposal Services within the CITY;

45 WHEREAS, Customers may voluntarily subscribe to and cancel such Collection Services from 46 CONTRACTOR, provided Customer otherwise obtains a permit to self-haul waste in compliance 47 with the CITY'S self-haul permit provisions;

48 WHEREAS, the CITY further declares its intent to regulate the maximum rates CONTRACTOR 49 may charge Customers for the Collection, transportation. Processing, recycling, composting, 50 and/or Disposal of Mixed Materials, Garbage, and Organic Material;

51 WHEREAS, this Contract and the maximum rates CONTRACTOR may charge Customers for 52 such Collection Services are a product of a multi-year, open and public procurement process, 53 are competitive for the industry based on the substantial array of services provided, and are 54 reasonably related to the cost of providing such services;

55 WHEREAS, the CITY Council has determined through a competitive procurement process for 56 Mixed Materials and Organics ("MM&O") Collection Services that CONTRACTOR, by 57 demonstrated experience, reputation and capacity, is qualified to provide for the Collection of 58 Mixed Materials, Organic Materials and Bulky Goods within the corporate limits of the CITY, the 59 transportation of such material to appropriate places for Processing, Recycling, Composting 60 and/or Disposal; and CITY Council desires that CONTRACTOR be engaged to perform such 61 services on the basis set forth in this Contract;

62 WHEREAS, CONTRACTOR, through its proposal to the CITY, has proposed and represented 63 that it has the ability and capacity to provide for the Collection of Mixed Materials, Organic 64 Materials and Bulky Goods within the corporate limits of the CITY; the transportation of such 65 material to appropriate places for Processing, Recycling, Composting and/or Disposal; and the 66 Processing of materials;

67 WHEREAS, CITY wishes to engage CONTRACTOR to provide the services specified within this 68 Contract, in accordance with the terms and conditions of this Contract; and

69 WHEREAS, this Contract has been developed by and is satisfactory to CITY and 70 CONTRACTOR.

71 NOW THEREFORE, in consideration of the mutual covenants, conditions and consideration 72 contained herein, CITY and CONTRACTOR hereby agree as hereinafter set forth:

73 ARTICLE 1. DEFINITIONS 74 For the purpose of this Mixed Materials and Organics Collection Services Contract ("Contract"), 75 the definitions contained in this Article shall apply unless otherwise specifically stated. When 76 not inconsistent with the context, words used in the present tense include the future, words in 77 the plural include the singular, and words in the singular include the plural. Use of the 78 masculine gender shall include the feminine gender.

79 1.01 AB 32. The Global Warming Solutions Act, (California Public Safety Code 80 section 38500 et seq.) as amended, including rules and regulations promulgated thereunder as 81 amended, which among other things, sets a greenhouse gas reduction goal by 2020.

82 1.02 AB 341. The California legislation (Stats. 2006, Ch. 476), as it may be amended 83 from time to time, that, among other things, added Chapter 12.8 of Part 3 of Division 30 of the

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84 Public Resources Code (commencing with section 42649) imposing mandatory commercial 85 recycling requirements and requirements that each jurisdiction implement an outreach and 86 education program and monitor compliance with the Mandatory Commercial Recycling 87 requirements. v'"* ' ^ . ' , » • • ^ .

88 1.03 AB 939. The California Integrated Waste Management Act (Public Resources 89 Code section 40000 et seq.), as amended from time to time.

91 1.04 Bin. A watertight metal or plastic Container with a hinged plastic lid and a 92 capacity of between one (1) and seven (7) cubic yards, designed or intended to be mechanically 93 dumped into a packer type truck, which is approved by CITY and labeled as specified by CITY. 94 Bins may also include Compactors that are owned or leased by the MFD or Commercial Service 95 Recipient, contingent upon confirmation of compatibility from CONTRACTOR.

96 1.05 Bulky Goods. Materials such as, but not limited to, stoves, refrigerators, water 97 heaters, washing machines, clothes dryers, small air conditioning units, other large and small 98 household appliances, including appliances containing Freon, furniture, carpets, tires, wood, 99 household items, tires with or without rims, mattresses, clothing. Large Plant Debris, and

100 corrugated cardboard. Bulky Goods may also include E-Waste, U-Waste, and materials 101 generated from minor home repairs and other similar materials to the extent set forth in 102 Exhibit 14, which is attached to and included in this Contract and as may be amended from time 103 to time. Except for Bulky Goods Collected at CITY Facilities, Bulky Goods must be generated at 104 the Service Address wherein the Bulky Goods are Collected. Bulky Goods do not include items 105 herein defined as Unacceptable Waste or Construction and Demolition Debris, except as 106 defined above.

107 1.06 Cart. A watertight heavy plastic receptacle with a rated capacity of approximately 108 twenty (20), thirty-two (32), sixty-four (64) or ninety-six (96) gallons, having a hinged tight-fitting 109 lid, and two (2) wheels, that is approved by CITY and is labeled as specified by CITY.

110 1.07 Change in Law. The adoption, promulgation, or modification of any generally 111 applicable and enforceable federal, state, local joint power authority (JPA), or foreign rule, law, 112 regulation, ordinance, order, judgment, decree, permit or administrative agency guidelines 113 (excluding orders, judgments, and decrees specific to a particular facility) duly adopted and 114 promulgated officially in writing for uniform application occurring after January 1, 2013. Change 115 in Law does not include changes initiated by CONTRACTOR. Change in Law shall not include 116 such changes enacted or adopted prior to the due date for RFP proposals, or regulatory 117 changes approved prior to the effective date of this Contract (i.e. chaptered statute or final 118 adoption of regulation).

119 1.08 CITY. The CITY of Oakland, California, a municipal corporation.

120 1.09 CITY Administrator. The CITY official who is responsible for the day-to-day 121 operations of CITY agencies and departments or his/her designee.

122 1.10 CITY Bulky Goods Collection Service. The Collection of Bulky Goods from CITY 123 Facilities in the Service Area, the delivery of the Bulky Goods to the appropriate facilities, and 124 the Disposal, Processing and marketing of the Bulky Goods.

125 1.11 CITY Collection Services. CITY Mixed Materials Collection Service, CITY 126 Organic Materials Collection Service, CITY Bulky Goods Collection Service, Street Litter 127 Container Collection Service, Temporary Roll-Off Box Collection Service, and CITY Special 128 Event Collection Service. " *

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129 1.12 CITY Facilities. Those CITY properties or locations as set forth in Exhibit 4, 130 which is attached to and included in this Contract and as may be amended.

131 1.13 CITY Mixed Materials Collection Service. The Collection of Mixed Materials from 132 CITY Facilities in the Service Area and either the delivery of the Mixed Materials to the 133 appropriate Mixed Materials Processing Facility, the Processing of the Mixed Materials and the 134 transfer of the Processing Residue to the Disposal Facility or the delivery of the non-processed 135 Mixed Materials to the Disposal Facility.

136 1.14 CITY Organic Materials Collection Service. The Collection of Organic Materials 137 from CITY Facilities in the Service Area, the delivery of the Organic Materials to an Organic 138 Materials Processing Facility, and the Processing and marketing of the Organic Materials.

139 1.15 CITY Special Event Collection Service. The Collection of Garbage, Recyclable 140 Materials, Organic Materials and other materials as appropriate at CITY-sponsored special 141 events.

142 1.16 Collect/Collection. To pick up. transport and Process Discarded Materials.

143 1.17 Collection Services. SFD Collection Services, MFD Collection Services, 144 Commercial Collection Services and CITY Collection Services.

145 1.18 Commercial. A business establishment and/or industrial facility including, but not 146 limited to, governmental, religious and educational facilities.

147 1.19 Commercial Collection Services. Commercial Mixed Materials Collection 148 Service, Commercial Organic Materials Subscription Collection Service, Temporary Roll-Off Box 149 Collection Service, and Commercial Special Events Collection Service.

150 1.20 Commercial Mixed Materials Collection Service. The Collection of Mixed 151 Materials from Commercial Service Addresses in the Service Area and either the delivery of the 152 Mixed Materials to the appropriate Mixed Materials Processing Facility, the Processing of the 153 Mixed Material and the transfer of the Processing Residue to the Disposal Facility, or the 154 delivery of the non-processed Mixed Materials to the Disposal Facility.

155 , . , ...,.

156 1.21 Commercial Organic Materials Subscription Collection Service. The Collection of 157 Organic Materials from Commercial Service Addresses in the Service Area subscribing to such 158 service, the delivery of the Organic Materials to an Organic Materials Processing Facility and 159 the Processing and marketing of the Organic Materials.

160 *: 1.22 Commercial Special Events Collection Service. Mixed Materials, Recyclable 161 Materials and Organic Materials Collection, Disposal and processing services at special events 162 such as street festivals.

163 1.23 Community Outreach. Any information (whether written or otherwise) directed by 164 CONTRACTOR to Customers regarding the programs and services provided under this 165 Contract and shall be subject to the prior review and approval of CITY. The party proposing to 166 make such communication shall make reasonable good faith efforts to consult with the other 167 party to ensure accuracy and consistency with the requirements and spirit of this Contract.

168 1.24 Compactor. Any Roll-Off Box or Bin which has a compaction mechanism, 169 whether stationary or mobile, contingent upon confirmation of compatibility from 170 CONTRACTOR.

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172 1.25 Construction and Demolition Debris. Materials resulting from construction, 173 remodeling, repair or demolition operations on any house, or residential property. Commercial 174 building, pavement or other structure. Construction and Demolition Debris includes but is not 175 limited to rocks, soils, tree remains and other Plant Debris which results from land clearing or 176 land development operations in preparation for construction. . ,

177 1.26 Container. A Bin, Cart, Roll-Off Box, Compactor, street litter receptacle or other 178 item approved by CITY for use in containing materials set out for Collection under the terms of 179 this Contract.

180 1.27 Contract or Franchise Contract. The written document and all amendments 181 thereto, between CITY and CONTRACTOR, governing the provision of Collection Services as 182 provided herein, including all exhibits hereto, as it may be amended from time to time.

183 1.28 Contract Manager. The CITY employee(s) designated by the CITY Administrator 184 to act as his/her designee regarding the day to day management of this Contract.

185 1.29 Contract Year. Each twelve (12) month period from July 1 to June 30 beginning

186 July 1,2015.

187 1.30 CONTRACTOR. WASTE MANAGEMENT OF ALAMEDA COUNTY, INC.

188 "' ' 1.31 Covered Electronic Device or CED. Discarded electronic devices that the 189 California Department of Toxic Substances Control ("DTSC") has determined to be a covered 190 electronic device (California Public Resources Code section 42463). CEDs include cathode ray 191 tube (CRT) devices (including televisions and computer monitors), LCD desktop monitors, 192 laptop computers with LCD displays, LCD televisions, plasma televisions, portable DVD players 193 with LCD screens and other electronic devices as may be added by the DTSC from time to time. 194 1.32 Customer. The Person or Persons who have the legal right to initiate, cancel or 195 make changes to Collection Services.

196 1.33 Difficult to Serve. A set-out site for Containers which has any of the following

197 features:

198 1.33.1 A grade greater than fifteen (15) percent;

199 ' . ^ 1.33.2 An obstructed vertical clearance of less than fifteen (15) feet;

200 1.33.3 A paved, concrete or similar surface over which Containers must be rolled

201 that contains large deep grooves;

202 , 1.33.4 An unpaved surface over which Containers must be rolled;

203 . ^ ?• 1.33.5 A turn radius of less than fifty (50) feet; or

204 * 1.33.6 Is more than one hundred (100) feet from the public road.

205 1.34 Discarded Material. Garbage, Mixed Materials, Recyclable Materials, Organic 206 Materials or Bulky Goods Generated at a Service Address and placed in a manner and location 207 that is designated for Collection pursuant to this Contract. 208 1.35 Disposal/Dispose. The disposition of Mixed Materials, Garbage and Residue 209 received from CONTRACTOR and CITY at the Disposal Facility under the terms of this 210 Contract, or a) the placement of any materials Collected pursuant to this Contract in landfills, 211 including as "beneficial reuse" as defined by California Code of Regulations Title 27, Chapter 3, 212 Article 1, section 20686; or (b) disposition to "incinerators" as defined by Alameda County

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213 Waste Reduction and Recycling Initiative Charter Amendment (Measure D) SUBSECTION

214 64.150 T.

215 1.36 Disposal Contractor, [insert company]

216 1.37 Disposal Facility or Landfill, [insert landfill name and address]

217 1.38 Divert/Diversion. The avoidance of Disposal at the Disposal Facility or other 218 landfill, or through "transformation" as defined by Public Resources Code section 40201, of any 219 materials Collected pursuant to this Contract, through Processing. 220 1.39 Dwelling Unit. Any individual living unit that includes a kitchen, and a room or 221 suite of rooms, and is designed or occupied as separate living quarters for an individual or 222 group of individuals. Dwelling Units include live/work units, as defined by Oakland Planning 223 Code section 17.65.160. Dwelling Units do not include work/live units, as defined by Oakland 224 Planning Code Section 17.65.150.

225 1.40 E-Waste. Waste that is powered by batteries or electricity, such as computers, 226 telephones, answering machines, radios, stereo equipment, tape players/recorders, 227 phonographs, videocassette players/recorders, compact disc players/recorders, calculators and 228 other items also defined as CEDs.

229 1.41 Fixed Body Vehicle. Any wheeled vehicle that does not rely on a Roll-Off Box or 230 other detachable container to Collect, contain and transport material.

231 1.42 Food Scraps. Raw or cooked vegetable, fruit, grain, fish, and other items, 232 including meat, bones, dairy products, cooking fats, oil or kitchen grease; paper, cardboard, and 233 other compostable items that have been contaminated with food, cooking fats, oil or kitchen 234 grease; compostable paper or plastics associated with food preparation or consumption such as 235 paper towels, paper plates, paper cups, tissue, waxed paper and waxed cardboard; and other 236 materials agreed upon the parties that are capable of being composted and that are set out 237 separate from Mixed Materials for Collection as Organic Materials.

238 1.43 Force Majeure. Any acts of God, such as landslides, lightning, fires, storms, 239 floods, pestilence, freezing, earthquakes, explosions, sabotage, civil disturbances, acts of a 240 public enemy, wars, terrorism, blockades, riots or other industrial disturbances, eminent domain, 241 condemnation or other taking or other events of a similar nature not caused or maintained by 242 CITY or CONTRACTOR, which event is not reasonably within the control of the party claiming 243 the excuse from its obligations due to such event to the extent such event has a significant and 244 material adverse effect on the ability of a party to perform its obligations thereunder. Force 245 Majeure shall not include power outages, fuel shortages, strikes, work stoppage or slowdown, 246 sickout, lockout, picketing or other concerted job action conducted by or directed at 247 CONTRACTOR or CONTRACTOR'S employees or subcontractors. Force Majeure shall 248 include a Change in Law if such Change in Law prohibits a party's performance hereunder. 249 Notwithstanding the foregoing, (i) no event relating to the Disposal Facility operated by 250 CONTRACTOR or a related party of CONTRACTOR, or the delivery of Garbage, Mixed 251 Materials and/or Residue to a facility shall constitute a Force Majeure under this Contract unless 252 (and then only to the extent) that such event prevents the delivery of or acceptance of Garbage, 253 Mixed Materials and Residues to or by that facility; (ii) no failure of performance by any 254 subcontractor of CONTRACTOR shall be a Force Majeure unless such failure was itself caused 255 by a Force Majeure; (iii) except as provided herein, no event which merely increases 256 CONTRACTOR'S cost of performance shall be a Force Majeure; and (iv) no event, the effects 257 of which could have been prevented by reasonable precautions, including compliance with 258 agreements and applicable laws, shall be a Force Majeure.

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259 1.44 Garbage. All, putrescible and non-putrescible waste, non-recyclable packaging 260 and rubbish attributed to normal activities of a Service Address wherein the Garbage is 261 generated and Collected, which is set out for Collection by the Service Recipient. Except for 262 Garbage Collected at CITY Facilities, Garbage must be generated at the Service Address 263 wherein the Garbage is Collected. Garbage does not include abandoned automobiles or those 264 items defined herein as Unacceptable Waste.

265 1.45 Gross Receipts. CONTRACTOR revenue collected from Customers for the 266 provision of the Mixed Materials and Organics Collection Services exclusive of taxes and 267 government fees. ; • • ^ .

268 * 1.46 Guarantor. [Insert Name].

269 1.47 Guaranty. The document contained in Exhibit 18, which is attached to and 270 included in this Contract that is executed by the Guarantor guaranteeing the timely and full 271 performance of CONTRACTOR'S obligations.

272 1.48 Generator. A Person, Commercial business or any other entity that produces 273 Garbage, Mixed Materials, Organic Materials, or Bulky Goods.

274 1.49 Hazardous Waste. For purposes of this Contract, Hazardous Waste shall include 275 those wastes defined as Hazardous Waste in Oakland Municipal Code section 8.28.010 or as 276 subsequently amended. Section 8.28.010 currently defines Hazardous Waste as any 277 hazardous waste, material, substance or combination of materials which because of its quantity, 278 concentration or physical, chemical or infectious characteristics may cause or significantly 279 contribute to an increase in mortality or an increase in serious irreversible or incapacitating 280 reversible illness or may pose a sulDstantial present or potential risk to human health or the 281 environment when improperly treated, stored, transported. Disposed or othenwise managed and 282 which requires special handling under any present or future federal, state or local law excluding 283 de minimis quantities of waste of a type and amount normally found in residential Garbage after 284 implementation of programs for the safe Collection, recycling, treatment and Disposal of 285 Household Hazardous Waste in compliance with sections 41500 and 41802 of the California 286 Public Resources Code. Hazardous Waste shall include but not be limited to: (a) substances 287 that are toxic, corrosive, inflammable or ignitable; (b) petroleum products, crude oil (or any 288 fraction thereof) and their derivatives; (c) explosives, asbestos, radioactive materials, toxic 289 substances or related hazardous materials; and (d) substances defined, regulated or listed 290 (directly or by reference) by applicable local, state or federal law as "hazardous substances," 291 "hazardous materials," "hazardous wastes," "pollutant," "reproductive toxins," "toxic waste" or 292 "toxic substances" or similarty identified as hazardous to human health or the environment, 293 including those so defined in or pursuant to any of the following statutes: (i) the Comprehensive 294 Environmental Response, Compensation and Liability Act ("CERCLA") of 1980, 42 USC section 295 9601 et seg. (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC section 1802, 296 et seg.; (iii) the Resource Conservation and Recovery Act, 42 USC section 6901 et seg.; (iv) the 297 Clean Water Act, 33 USC section 1251 et seg.; (v) California Health and Safety Code section 298 25115-25117, 25249.8, 25281 and 25316; (vi) the Clean Air Act, 42 USC section 7901 et seg.: 299 and (vii) California Water Code section 13050. All rules and regulations adopted and 300 promulgated pursuant to such statutes and future amendments to or recodifications of such 301 statutes and any regulations adopted pursuant to these statutes after the date of this Contract, 302 as well as any subsequently enacted federal or California statute relating to the use, release or 303 disposal of toxic or hazardous substances, or to the remediation of air, surface waters, 304 groundwater, soil or other media contaminated with such substances any other hazardous or 305 toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or

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306 regulated under any other applicable federal, state or local environmental laws currently existing 307 or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's 308 ("PCBs"), petroleum, natural gas and synthetic fuel products and by-products. The parties 309 intend that this definition not be limited to any particular statutory or regulatory regime and that it 310 be construed as broadly as possible.

311 1.50 Household Hazardous Waste ("HHW'). Any Hazardous Waste generated at a 312 SFD, MFD or CITY Facility Service Address within the Service Area including but not limited to, 313 cleaning products, automotive products, fuel, lubricants, E-Wastes, paints, painting supplies, 314 fluorescent lamps, compact fluorescent lamps, varnishes, solvents, herbicides, pesticides, 315 fertilizers, automobile batteries, household batteries, adhesives and Universal Waste except 316 those items defined in this Contract as Recyclable Materials including Used Oil or Used Oil 317 Filters and dry cell household batteries when placed for Collection as set forth in this Contract or 318 as directed by CITY. :

319 1.51 Labor Disruption. Labor Disruptions are defined as strikes, slowdowns, sickout, 320 picketing, other concerted job actions, directed at CONTRACTOR, CONTRACTOR'S employees 321 or subcontractors, excluding lockouts or stoppages conducted or initiated by CONTRACTOR.

322 1.52 Large Plant Debris. Oversized Plant Debris such as tree trunks, branches or 323 untreated and unpainted wood with a diameter of more than six (6) inches and not more than 324 two (2) feet, or a length of more than four (4) feet and no more than six (6) feet, or weighing not 325 more than seventy-five (75) pounds.

326 1.53 Material Recovery Facility or MRF. Any facility, selected by CONTRACTOR and 327 approved or specifically designated by CITY, designed, operated and legally permitted for the 328 purpose of receiving and Processing Recyclable Materials, Organic Materials or Mixed 329 Materials. ^

330 1.54 Maximum Service Rates. Those rates and ancillary charges that were approved 331 by CITY and are contained in Exhibit 1 which is attached to and included in this Contract.

332 1.55 Multi-family Dwelling or MFD. Any residence with five (5) or more Dwelling Units, 333 including any flat, apartment, condominium, town home, service-enriched housing or other 334 residence and other Dwelling Units in detached buildings on a single parcel and excluding a 335 hotel, motel, dormitory, sheltered nursing facility, rooming house or other such similar facility as 336 determined by CITY.

337 1.56 MFD Bulky Goods Collection Service. The Collection of Bulky Goods from MFD 338 Service Recipients in the Service Area, the delivery of the Bulky Goods to the appropriate 339 facilities and the Disposal, Processing or marketing of the Bulky Goods.

340 1.57 MFD Collection Services. MFD Mixed Materials Collection Service, MFD 341 Organic Materials Collection Service, Temporary Roll-Off Box Collection Service, and MFD 342 Bulky Goods Collection Service.

343 1.58 MFD Mixed Materials Collection Service. The Collection of Mixed Materials from 344 MFD Service Addresses in the Service Area and the delivery of the Mixed Materials to the 345 appropriate Mixed Materials Processing Facility, the Processing of the Mixed Materials and the 346 transfer of the Processing Residue to the Disposal Facility.

347 1.59 MFD Organic Materials Collection Service. The Collection of Organic Materials 348 from MFD Service Addresses in the Service Area and the delivery of that Organic Materials to 349 an Organic Materials Processing Facility for Processing.

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350 1.60 Mixed Materials. All materials that are set out by the Service Recipient for 351 Collection by CONTRACTOR excluding items that are Source Separated. Mixed Materials do 352 not include items defined herein as Unacceptable Waste.

353 1.61 Mixed Materials Extra Service Tag. A tag approved by CITY and provided by 354 CONTRACTOR which may be purchased for use at SFD and MFD Service Addresses for the 355 Collection of extra Garbage or Mixed Materials. v

356 1.62 Mixed Materials Processing Facility. Any MRF or Organics Processing Facility 357 selected by CONTRACTOR and approved by CITY that is designed, operated and legally 358 permitted for the purpose of receiving and Processing Mixed Materials.

359 1.63 Non-Collection Notice. A form developed and used by CONTRACTOR as 360 approved by CITY to notify Service Recipients of the reason for non-collection of materials set 361 out by the Service Recipient for Collection by CONTRACTOR pursuant to this Contract.

362 1.64 Organic Materials ("Organics"). Plant Debris, Food Scraps, compostable food 363 ware, compostable food containers, compostable paper, horse stable matter and other material 364 agreed upon by both parties that are separated for inclusion in the SFD Organic Materials 365 Collection Service, MFD Organic Materials Collection Service, Commercial Organic Materials 366 Subscription Collection Service or CITY Organic Materials Collection Service programs except 367 for Organic Materials Collected at CITY Facilities. Organic Materials must be generated at the 368 Service Address wherein the Organic Materials are Collected. Organic Materials do not include 369 items herein defined as Unacceptable Waste.

370 1.65 Organic Materials Extra Service Tag. A tag approved by CITY and provided by 371 CONTRACTOR which may be purchased for use at Commercial Service Addresses subscribing 372 to Commercial Organic Materials Subscription Collection Service for the Collection of extra 373 Organic Materials.

374 ' 1.66 Organic Materials Processing Facility. Any facility selected by CONTRACTOR 375 and approved by CITY, which is designed, operated and legally permitted for the purpose of 376 receiving and Processing Organic Materials or Mixed Materials.

377 1.67 Overage. An amount of material in excess of the capacity of the Container 378 utilized at the Service Address for the set out of such material except where such material is set 379 out through the use of an Extra Service Tag.

380 1.68 Per Dwelling Unit Recycling Rate. The dollar amount effective July 1 each year, 381 which CONTRACTOR invoices and collects from SFD and MFD Customers. The Per Dwelling 382 Unit Recycling Rate may comprise a RR Contractor component and a stabilization component.

383 1.69 Person. An individual, association, partnership, corporation, joint venture, 384 school, the United States, the State of California, any municipality or other political subdivision 385 thereof or any other entity whatsoever.

386 " • • 1.70 Plant Debris. Any vegetative matter resulting from normal yard and landscaping 387 maintenance or unpainted and untreated wood that is not more than four (4) feet in its longest 388 dimension or more than six (6) inches in diameter or weighs less than seventy-five (75) pounds 389 per individual piece and can be handled by two (2) persons. Plant Debris includes palm, yucca, 390 cactus, grass clippings, leaves, pruning, weeds, branches, brush, holiday trees and other forms 391 of horticultural waste. Plant Debris must be generated at the Service Address from which the 392 Plant Debris is Collected except for material generated on property owned or maintained by 393 CITY. Plant Debris does not include items defined herein as Unacceptable Waste.

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394 1.71 Processing. An operation or series of operations, whether involving equipment, 395 manual labor, or mechanical or biological processes that sorts, enhances, upgrades, 396 concentrates, decontaminates, packages or otherwise prepares Recyclable Materials, Organic 397 Materials, Mixed Materials or Bulky Goods and returns marketable elements thereof to the 398 economic mainstream in the form of raw material for new, reused or reconstituted products. 399 Processing begins at the time the Recyclable Materials, Organic Materials, Bulky Goods or 400 Mixed Materials are delivered to the Processing facility and ends when the finished Processed 401 materials are sold or reused and the Residue is properly Disposed. ^

402 1.72 Recyclable Materials. Those materials designated in this Contract or other 403 materials agreed upon by parties for Collection and Recycling under this Contract which are 404 segregated from Mixed Materials by the Service Recipient at the source of generation. 405 Recyclable Materials include newspaper, mixed paper (including white and colored paper, 406 magazines, telephone books, chipboard, junk mail and high grade paper), glass containers, 407 metal containers (ferrous, non-ferrous and bi-metal containers including empty aerosol 408 containers), aluminum foil and trays, milk and juice cartons, soup and juice boxes, all narrow 409 neck rigid plastic containers, non-bottle rigid plastics, corrugated cardboard and dry cell 410 household batteries when contained in a sealed heavy duty plastic bag and set out for 411 Collection as required by CITY. CITY and CONTRACTOR may mutually agree to include 412 additional materials or remove materials from this list of Recyclable Materials.

413 1.73 Residential Recycling ("RR") Contractor. [Insert Name].

414 1.74 Residue. Materials remaining after the Processing of Mixed Materials, 415 Recyclable Materials, Organic Materials or Bulky Goods which cannot reasonably be Diverted.

416 1.75 Roll-Off Box. A metal Container of between six (6) and fifty (50) cubic yards that 417 is normally loaded onto a motor vehicle and transported to an appropriate facility. A Roll-Off 418 Box may be open topped or covered at the discretion of CITY with or without a compaction unit.

419 1.76 Service Address. The physical location of the SFD, MFD, Commercial or CITY

420 property receiving Collection Services.

421 1.77 Service Area. That area within the corporate limits of the city of Oakland.

422 1.78 Service Recipient. A Person receiving Collection Services at the Service 423 Address under the terms of this Contract. 424 1.79 SFD Collection Services. SFD Mixed Materials Collection Service, SFD Organic 425 Materials Collection Service, Temporary Roll-Off Box Collection Service, and SFD Bulky Goods 426 Collection Service.

427 1.80 SFD Bulky Goods Collection Service. The Collection of Bulky Goods from SFD 428 Service Addresses in the Service Area, the delivery of the Bulky Goods to the appropriate 429 facilities and the Processing marketing and Disposal of the Bulky Goods.

430 1.81 SFD Mixed Materials Collection Service. The Collection of Mixed Materials from 431 SFD Service Addresses in the Service Area and either the delivery of the Mixed Materials to the 432 appropriate Mixed Materials Processing Facility, the Processing of the Mixed Material and the 433 transfer of the Processing Residue to the Disposal Facility or the delivery of the non-processed 434 Mixed Materials to the Disposal Facility.

435 1.82 SFD Organic Materials Collection Service. The Collection of Organic Materials 436 from SFD Service Addresses in the Service Area, and the delivery of the Organic Materials to 437 an Organic Materials Processing Facility for Processing.

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439 y--* • y^ir-

440 1.83 Single Family Dwelling or SFD. A detached or attached residence containing 441 four (4) or fewer Dwelling Units when each Dwelling Unit is designed or used for occupancy by 442 one (1) or more individuals.

443 1.84 Solid Waste. All putrescible and non-putrescible solid, semisolid and liquid 444 wastes including Garbage, trash, refuse, paper, rubbish, ashes, industrial wastes. Construction 445 and Demolition Debris, discarded home and industrial appliances, dewatered, treated or 446 chemically fixed sewage sludge which is not Hazardous Waste, manure, vegetable or animal 447 solid and semisolid wastes and other discarded solid and semi-solid wastes as defined in 448 California Public Resources Code section 40191, as that section may be amended from time to 449 time, but does not include Source Separated Recyclable Materials, abandoned vehicles and 450 parts thereof. Hazardous Waste or low-level radioactive waste, medical waste. Unacceptable 451 Waste or Plant Debris. Solid Waste may include Recyclable Materials, Compostable Materials 452 and Construction and Demolition Debris if such materials are not Source Separated from Solid 453 Waste at the site of generation or Collected for Recycling, Composting, Processing and 454 marketing.

455 1.85 Source Separated. Recyclable Materials, Organic Materials and Bulky Goods 456 that have been segregated from Garbage, by or for the Generator at the Service Address at 457 which the materials were generated for diversion. ' -

458 1.86 Street Litter Container Collection Service. The Collection of Garbage and 459 Recyclable Materials from street litter Containers within the Service Area and the transport and 460 delivery of the Collected materials to the appropriate facility.

461 1.87 Temporary Roll-Off Box Collection Service. The Collection of Discarded 462 Materials from a Service Address, which are generated as a byproduct of activities at that 463 Service Address other than permitted construction or demolition through use of a temporarily 464 placed box and the delivery of those materials to the appropriate facility.

465 1.88 Ton/Tonnage. A unit of measure for weight equivalent to two thousand (2,000) 466 standard pounds where each pound contains sixteen (16) ounces.

467 1.89 Universal Waste ("U-Waste"). Materials that DTSC considers Universal Waste 468 (California Code of Regulations Title 22, Div 4.5, Ch 23), including materials such as batteries, 469 thermostats, lamps, cathode ray tubes, computers, telephones, answering machines, radios, 470 stereo equipment, tape players/recorders, phonographs, video cassette players/recorders, 471 compact disc players/recorders, calculators, some appliances, aerosol cans, fluorescent lamps 472 and certain mercury-containing devices.

473 1.90 Unacceptable Waste. Any and all waste, including but not limited to. Hazardous 474 Waste and Household Hazardous Waste, the acceptance or handling of which would cause a 475 violation of any permit condition or legal or regulatory requirement, damage or threatened 476 damage to CONTRACTOR'S equipment or facilities, or present a substantial endangerment to 477 the health or safety of the public or CONTRACTOR'S employees; provided, that de minimis 478 quantities or waste of a type and amount normally found in Garbage or Mixed Materials after 479 implementation of programs for the safe Collection, Processing, treatment, and Disposal of 480 Household Hazardous Waste in compliance with sections 41500 and 41802 of the California 481 Public Resources Code shall not constitute Unacceptable Waste. Unacceptable Waste does

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482 not include Used Oil, Used Oil Filters, dry cell or household batteries when placed for Collection 483 as set forth in this Contract.

484 1.91 Work Day. Any day, Monday through Saturday that is not a holiday as set forth 485 in Section 6.11 of this Contract.

486 ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF 487 . - CONTRACTOR 488 CONTRACTOR hereby makes the following representations and warranties for the benefit of 489 CITY as of the date of this Contract. • , ,

490 2.01 Corporate Status. CONTRACTOR is a corporation duly organized, validly 491 existing and in good standing under the laws of the State of California. It is qualified to transact 492 business in the State of California and has the corporate power to own its properties and to 493 carry on its business as now owned and operated and as required by this Contract.

494 2.02 Corporate Authorization. CONTRACTOR has full legal right, power, and 495 authority to execute, deliver, and perform its obligations under this Contract. The Board of 496 Directors of CONTRACTOR (or the shareholders if necessary) has taken all actions required by 497 law, its articles of incorporation, its bylaws or otherwise to authorize the execution and delivery 498 of this Contract. The persons signing this Contract on behalf of CONTRACTOR have authority 499 to do so.

500 2.03 Contract Duly Executed. The Persons signing this Contract on behalf of 501 CONTRACTOR have been authorized by CONTRACTOR to do so, and this Contract has been 502 duly executed and delivered by CONTRACTOR in accordance with the authorization of its 503 Board of Directors or shareholders, if necessary, and constitutes a legal, valid, and binding 504 obligation of CONTRACTOR enforceable against CONTRACTOR in accordance with its terms.

505 2.04 No Conflict with Applicable Law or Other Documents. To the best of 506 CONTRACTOR'S knowledge, neither the execution and delivery by CONTRACTOR of this 507 Contract nor the performance by CONTRACTOR of its obligations hereunder:

508 2.04.1 Conflicts with, violates or will result in a violation of any existing applicable 509 law; or > , : '

510 2.04.2Conflicts with, violates or will result in a breach or default under any term 511 or condition of any existing judgment, order or decree of any court, administrative agency or 512 other governmental authority, or of any existing Contract or instrument to which CONTRACTOR 513 is a party, or by which CONTRACTOR or any of Contractor's properties or assets is bound; or

514 2.04.3 Will result in the creation or imposition of any lien, charge, or 515 encumbrance of any nature whatsoever upon any of the properties or assets of CONTRACTOR 516 which will interfere materially with CONTRACTOR'S performance hereunder.

517 2.05 No Litigation. There is no action, suit, proceeding or action at law or equity, or to 518 the best of CONTRACTOR'S knowledge, any investigation before or by any court or 519 governmental entity, pending or threatened against CONTRACTOR or otherwise affecting 520 CONTRACTOR, wherein an unfavorable decision, ruling or finding, in any single case or in the 521 aggregate, would materially adversely affect CONTRACTOR'S performance hereunder, or 522 which in any way would adversely affect the validity or enforceability of this Contract, or which 523 would have a material adverse effect on the financial condition of CONTRACTOR or its parent 524 company. ; » ' - , ^ .

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525 2.06 Financial Ability. Disclosures. No Material Change. CONTRACTOR has 526 sufficient financial resources to perform all aspects of its obligations hereunder. 527 CONTRACTOR has provided CITY with audited financial statements which present fairly, in 528 accordance with generally accepted accounting principles, the financial resources of 529 CONTRACTOR. There has been no material adverse change in CONTRACTOR'S or 530 CONTRACTOR'S parent company's financial circumstances since the date of the most recent 531 financial statements.

532 2.07 Expertise. CONTRACTOR has the expert, professional, and technical capability 533 to perform all of its obligations under this Contract.

534 2.08 CONTRACTOR'S Statements. CONTRACTOR'S proposal and any other 535 supplementary information submitted to CITY that CITY has relied on in negotiations and 536 entering into this Contract, do not: (i) contain any untrue statement of a material fact, or (ii) omit 537 to state a material fact that is necessary in order to make the statements made, in light of the 538 circumstances in which they were made, not misleading.

539 2.09 CONTRACTOR'S Investigation. CONTRACTOR has made an independent 540 investigation (satisfactory to it) of the conditions and circumstances surrounding this Contract 541 and the work to be performed by CONTRACTOR under the Contract, and enters into this 542 Contract on the basis of that independent investigation.

543 2.10 Voluntary Use of Approved Disposal Facility. CONTRACTOR, without constraint 544 and as a free-market business decision in accepting this Contract, agrees to use the Disposal 545 Facility for the purposes of Disposing of all Mixed Materials not delivered to a Mixed Materials 546 Processing Facility and Residue resulting from Processing of Mixed Materials Collected in the 547 Service Area. Such decision by CONTRACTOR in no way constitutes a restraint of trade 548 notwithstanding any Change in Law regarding flow control limitations or any definition thereof.

549 ARTICLE 3. TERM OF CONTRACT 550 3.01 Term. The term of this Contract shall be for a ten (10) year period beginning 551 July 1, 2015, and terminating on June 30, 2025. CITY shall have an option to offer to extend 552 the Contract for up to two (2) additional five (5) year periods.

553 3.01.1 First Extension. On or about May 1, 2022, CITY in its sole discretion may 554 offer to extend this Contract by five (5) years by notifying CONTRACTOR of its intention to do 555 so in writing. CONTRACTOR shall respond in writing to CITY within sixty (60) calendar days of 556 receipt of offer from CITY either accepting or rejecting the CITY'S first extension offer. In the 557 event CONTRACTOR rejects the offer of extension from CITY, this Contract shall automatically 558 be extended for one (1) year and shall terminate on June 30, 2026.

559 3.01.2 Second Extension. In the event CONTRACTOR accepts CITY'S first 560 extension offer as set forth in Section 3.01.1, then on or about May 1, 2027, CITY in its sole 561 discretion may offer to extend this Contract by five (5) years by notifying CONTRACTOR of its 562 intention to do so in writing. CONTRACTOR shall respond in writing to CITY within sixty (60) 563 calendar days of receipt of offer from CITY either accepting or rejecting the CITY'S second 564 extension offer. In the event CONTRACTOR rejects the offer of extension from CITY, this 565 Contract shall automatically be extended for one (1) year and shall terminate on June 30, 2031.

566 3.01.3 No Right to Extension. Nothing in the foregoing paragraphs or othenwise 567 set forth in this Contract is intended to create a right in favor of CONTRACTOR to obtain either 568 the first or second extension..

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569 ARTICLE 4. CONTRACTOR'S COVENANTS; CITY OPTION TO 570 - TERMINATE 571 4.01 General. CONTRACTOR covenants that it shall obtain and deliver to CITY the 572 document set forth in Section 4.02 below and use its best efforts to deliver it on or before 573 June 1, 2015. If such document is not delivered to CITY in satisfactory form by June 15, 2015, 574 CITY may terminate this Contract with absolutely no continuing financial obligations to 575 CONTRACTOR and may resort to the rights and remedies provided for in Article 29 hereof.

576 4.02 Receipt of Performance Security. CONTRACTOR shall provide CITY with, and 577 CITY shall accept if it complies with Article 24, the performance security described in Article 24 578 of this Contract.

579 4.03 Termination. This Contract may be terminated prior to the expiration of its initial 580 term and any extension as may be provided only in accordance with the provisions of this 581 Contract. At the expiration of the term provided for hereunder, or in the event of a termination 582 as allowed under this Contract, CONTRACTOR, at its own expense for a period of up to six (6) 583 months, shall cooperate fully with CITY, as reasonably necessary, to ensure an orderly 584 transition to any and all new service providers, and CITY shall have no continuing obligations to 585 CONTRACTOR other than those expressly provided for under this Contract. CONTRACTOR 586 shall transfer. Process or Dispose of all materials that have been Collected or are in Process 587 under this Contract as of the date of expiration or termination.

588 ARTICLE 5. SERVICES PROVIDED BY CONTRACTOR 589 5.01 Grant of Exclusive Contract. Except as otherwise provided in this Contract, 590 CONTRACTOR is herein granted an exclusive Contract to provide Collection Services within 591 the Service Area. No other services shall be exclusive to CONTRACTOR.

592 5.02 Limitations to Scope of Exclusive Contract. Nothing in this Contract shall limit the 593 right of any Person to donate or sell his or her Recyclable Materials, Organic Materials, or Bulky 594 Goods pursuant to Section 5.03 below.

595 5.03 Collection by Other Persons. Notwithstanding CONTRACTOR'S rights under 596 this Contract as described above, the following materials may be Collected by Persons other 597 than CONTRACTOR:

598 5.03.1 Solid Waste which is removed from any premises and which is 599 transported personally by the owner or occupant of such premises (or by his or her employees) 600 to any permitted processing or disposal site;

601 5.03.2 Construction and Demolition Debris that is incidentally removed by 602 a construction or demolition contractor or as part of a total service offered by such company and 603 where the company uses its own equipment and employees;

604 5.03.3 Mixed Materials, Garbage, Organic Materials, Bulky Goods or 605 Recyclable Materials Collected and transported by CITY crews to the Disposal Facility, 606 Materials Recovery Facility, Organic Materials Processing Facility, Mixed Materials Processing 607 Facility or transfer station;

608 5.03.4 Recyclable Materials or Bulky Goods that are Source Separated 609 at any Service Address by the Generator and donated or sold. Recyclable Materials are 610 considered "donated or sold" so long as the Person collecting the Recyclable Materials does not 611 receive a net payment from the Generator (including but not limited to any payment for

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Mixed Materials and Organics Collection Services Contract 9/19/14 s

612 consulting and/or management fees related to the collection of any waste materials including 613 Recyclable Materials); ' '

614 5.03.5 Beverage containers delivered for Recyclable Materials under the , 615 California Beverage Container Recyclable Materials Litter Reduction Act, section 14500, et seg.; ^

616 5.03.6 Organic Materials removed from a Service Address by a 617 gardening, landscaping or tree trimming service provider as an incidental part of a total service , 618 offered by that service provider rather than as a hauling service;

619 5.03.7 Source Separated Recyclable Materials generated by Commercial ,» * 620 Service Addresses including but not limited to those collected by a Person under contract to 621 CITY and those collected through private arrangements between the Generator and the 622 collection company, which are recycled at a recycling facility that holds all applicable permits; 623 provided, however, that loads that contain more than ten (10) percent by weight or volume of ;, 624 non-recyclable material shall not be considered Source Separated Recyclable Materials;

625 5.03.8 Discarded Materials removed from a Service Address in a Fixed 626 Body vehicle by a property management, maintenance or cleanup service provider as an 627 incidental part of the total on-property cleanup or maintenance service offered by the service | " 628 provider rather than as a hauling service; « . . . !.

629 5.03.9 Animal waste and remains from slaughterhouses and butcher

630 shops or grease or vegetable oil waste for use as tallow;

631 , 5.03.10 Waste vegetable oil used as an alternative fuel;

632 5.03.11 Homogeneous organic by-products such as spent hops or coffee 633 bean chaff which are generated by food product manufacturers and processors delivered to 634 destinations other than solid waste or compost facilities and used as livestock feed; - . j 635 5.03.12 By-products of sewage treatment including sludge, grit and A

636 screenings; ' I

637 , , » 5.03.13 Hazardous Waste regardless of its source; !. , «

638 5.03.14 Bulky Goods removed from a Service Address for a nominal 639 charge by a retailer as an incidental part of a sale of merchandise; and . v*"*^ 640 5.03.15 Bulky Goods removed from a Service Address for a nominal 641 charge by a reuse facility or reuse business. ^

642 5.04 Prohibition. Nothing in Section 5.03 shall allow the Collection, through the use of . *^ 643 a Roll-Off Box, of Mixed Materials, Garbage, Organics, Bulky Goods, or SFD, MFD or CITY '^i 644 Recyclable Materials for a fee by a service provider whose primary service is hauling. * |

645 5.05 Use of Other Persons. CONTRACTOR acknowledges and agrees that CITY , ' ' ! 646 may permit other Persons besides CONTRACTOR to Collect any and all types of materials 647 excluded from the scope of this Contract, as set forth above, without seeking or obtaining 648 approval of CONTRACTOR.

649 5.06 Applicable Law. The scope of this Contract shall be interpreted to be consistent 650 with applicable law, now and during the term of the Contract subject to provisions of Section 30. 651 If future judicial interpretations of current law or new laws, regulations, or judicial interpretations 652 limit the ability of CITY to lawfully provide for the scope of services as specifically set forth 653 herein, CONTRACTOR agrees that the scope of the Contract will be limited to those services 654 and materials which may be lawfully provided. In such an event, it shall be the responsibility of

City of Oakland ""• Page 15

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655 CONTRACTOR to minimize the financial impact of such future judicial interpretations or new 656 laws, subject to the other provisions of the Contract.

657 ARTICLE 6. SERVICE STANDARDS 658 6.01 Service Standards. CONTRACTOR shall perform all Collection Services under 659 this Contract in a thorough and professional manner. Subject to Section 29.05, Collection 660 Services described in this Contract shall be performed regardless of weather conditions or 661 difficulty of Collection.

662 6.02 Hours and Days of Collection.

663 6.02.1 SFD and MFD Collection Services shall be provided, commencing no 664 earlier than 6:00 a.m. and terminating no later than 6:30 p.m., in accordance with the CITY 665 Municipal Code, Monday through Friday with no service on Saturday (except for holiday service 666 as set forth in Section 6.11 of this Contract in which case normal Collection hours may be 667 utilized) or Sunday. The hours, days, or both of Collection may be extended due to 668 extraordinary circumstances or conditions with the prior written consent of the Contract 669 Manager.

670 * ' 6.02.2 Commercial Collection Services and CITY Collection Services shall be 671 provided Monday through Saturday with limited Collection Services on Sunday. 672 CONTRACTOR shall endeavor to route collection vehicles in a manner that minimizes noise 673 and traffic impacts during critical periods of the day, including: near residential properties from 6 674 pm to 6 am, near schools during pick-up and drop-off hours, in merchant districts during normal 675 business hours, and in high traffic areas during peak commute hours. CONTRACTOR shall 676 resolve complaints of noise and traffic impacts caused by CONTRACTOR'S activities to the 677 satisfaction of CITY.

678 6.03 Transfer of Loads on Public Streets and Roads. CONTRACTOR is prohibited 679 from transferring loads from one vehicle to another on any public right-of-way unless there is a 680 necessity to do so because of road conditions, mechanical failure, truck fire or accidental 681 damage to a vehicle without written permission from the Contract Manager.

682 ' 6.04 Manner of Collection. CONTRACTOR shall provide Collection Services with as 683 little disturbance as reasonably possible and shall leave any Cart or Bin in an upright position, 684 with the lid closed, at the same point it was Collected without obstructing alleys, roadways, 685 driveways, sidewalks or mail boxes. CONTRACTOR will not be responsible for Carts or Bins 686 being moved or open due to weather conditions or other factors beyond its control, such as 687 scavengers. CONTRACTOR shall also lock any Bin and close or lock as appropriate any 688 Container enclosure which it opened or unlocked as part of Collection Services.

689 6.05 Record of Non-Collection. When any Discarded Material, or other material set 690 out for regular or special Collection, is not Collected by CONTRACTOR for sufficient reason, 691 CONTRACTOR shall leave a Non-Collection Notice. A copy of any Non-Collection Notice, 692 along with the name and address of the party noticed, shall be delivered to the Contract 693 Manager within twenty-four (24) hours of CITY'S request.

694 . 6.06 Containers.

695 6.06.1 Carts. Carts are to be hot-stamped, embossed, or laminated, with a 696 unique identification number and the words "City of Oakland," and in-molded with the type of 697 materials to be Collected (i.e.. Garbage, Organic Materials, Recyclable Materials), name and 698 phone number of CONTRACTOR, and instructions for proper usage. In-molding on the Carts

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699 shall be on the lids. CONTRACTOR'S name shall not be included on the body of Carts. 700 Labeling and graphics of the Carts shall be approved by CITY. Carts shall not contain any type 701 of advertising without the written approval of the Contract Manager.

702 6.06.2 Bins. Bins, including those defined herein as Compactors are to be 703 marked with a unique identification number, labeled with the type of materials to be Collected 704 (i.e.. Garbage, Organic Materials, Recyclable Materials), the size in cubic yards, 705 CONTRACTOR'S name and phone number and instructions for proper usage and be in good 706 working order. Labeling and graphics of the Bins shall be approved by CITY. Used Bins may 707 be utilized providing they are newly painted, properly marked, in good working order and free of 708 rust and holes. CITY retains the right to inspect any such used Bins and direct CONTRACTOR 709 to replace such used Bin if it is deemed to be not acceptable. Bins shall not contain any type of 710 advertising without the written permission and approval of the Contract Manager.

711 6.06.3 Roll-Off Boxes. Roll-Off Boxes, including those defined herein as 712 Compactors are to be marked with a unique identification number, labeled with the size in cubic 713 yards, CONTRACTOR'S name and phone number and instructions for proper usage, be in good 714 working order, and at the discretion of CITY have lids. Labeling and graphics of the Roll-Off 715 Boxes shall be approved by CITY. Used Roll-Off Boxes may be utilized, provided they are 716 newly painted, properly marked, in good working order and free of rust and holes. CITY retains 717 the right to inspect any such used Roll-Off Boxes and direct CONTRACTOR to replace such 718 used Roll-Off Box if it is deemed to be not acceptable.

719 6.06.4 Purchase, Distribution, and Collection of Carts and Bins. CONTRACTOR 720 shall be responsible for the purchase and distribution of fully assembled and functional 721 Containers to Service Addresses in the Service Area based on the type and level of service 722 received by each Service Address. CONTRACTOR shall also distribute Containers, as needed, 723 to new Service Addresses during the term of this Contract. The distribution shall be completed 724 no later than the next regularly scheduled Collection day after receipt of notification from CITY, 725 the Customer or the Service Recipient; provided, however, CONTRACTOR must receive the 726 notification at least six (6) Work Days prior to distribution.

727 6.06.4.1 CONTRACTOR shall be responsible for the Collection of 728 abandoned, used, discarded, or unwanted Mixed Materials or Organic Materials Containers in 729 the Service Area within six (6) Work Days of notification by CITY, a Service Recipient, or a 730 Customer. The Containers shall be repaired or, if repair is not practical. Recycled. This service 731 shall be provided at no additional cost to CITY, Customer or Service Recipient.

732 6.06.5 Repair or Replacement of Carts and Bins. CONTRACTOR shall be 733 responsible for repair or replacement of Carts and Bins and their component parts, including but 734 not limited to, hinged lids, wheels, axles and labels, as provided below. CONTRACTOR shall 735 also be responsible for securing replacement of all items covered by manufacturer warranty.

736 6.06.6 Replacement of Carts and Bins Provided Under Previous Contract. If 737 CONTRACTOR has, or obtains Carts provided under previous contract, then in lieu of providing 738 one hundred percent of new Carts, CONTRACTOR may replace at least twenty (20) percent of 739 the Carts provided under the previous contract at no cost or inconvenience to the Service 740 Recipient or Customer in the initial Contract Year. In particular, CONTRACTOR shall replace at 741 least the following number of Carts in each category:

Mixed Material Carts Organics Carts

SFD Service Addresses 20,400 20,400

City of Oakland Page 17


MFD Service Addresses 2,000 n/a.

Commercial Service Addresses

400 n/a.

742 CONTRACTOR shall be responsible for ongoing replacement of Carts and Bins during the 743 remaining term at a frequency and in amounts to ensure maintenance of adequate 744 serviceability. This continual replacement is estimated to be at a rate of up to three percent (3%) 745 per subsequent Contract Year, but in any event shall be sufficient to maintain serviceability.

746 6.06.7 Replacement of Carts and Bins Damaged by CONTRACTOR. 747 CONTRACTOR'S employees shall take care to prevent damage to Carts or Bins by 748 unnecessary rough treatment. However, any Cart or Bin damaged by CONTRACTOR shall be 749 replaced or repaired by CONTRACTOR, at CONTRACTOR'S expense, no later than the next 750 regularly scheduled Collection day or within six (6) Work Days (whichever is later), at no cost or 751 inconvenience to the Service Recipient or Customer.

752 6.06.8 Replacement of Carts and Bins Due to Normal Wear and Tear. Upon 753 notification to CONTRACTOR by a Service Recipient or Customer of the need for replacement 754 or repair to a Cart(s) or Bin(s) due to normal wear and tear, CONTRACTOR shall replace or 755 repair such Cart(s) or Bin(s) at CONTRACTOR'S expense, by the next regularly scheduled 756 Collection day, or within six (6) Work Days (whichever is later) at no cost or inconvenience to 757 the Service Recipient or Customer.

758 6.06.9 Replacement of Carts and Bins Reguired Through No Fault of 759 CONTRACTOR. Upon notification to CONTRACTOR by CITY or a Service Recipient that the 760 Service Recipient's Mixed Materials or Organics Cart(s), or Bin(s) have been stolen or damaged 761 beyond repair through no fault of CONTRACTOR, CONTRACTOR shall deliver a replacement 762 Cart(s), or Bin(s) to the Service Address no later than the next regularly scheduled Collection 763 day, at no cost, subject to the limitations set forth below, or inconvenience to the Service 764 Recipient or Customer. Notwithstanding the foregoing, in cases where CONTRACTOR can 765 demonstrate that the replacement is due to factors other than CONTRACTOR mishandling or 766 damage, ordinary wear and tear, or third-party theft, CONTRACTOR may invoice the Customer 767 or Service Recipient requesting such a replacement in accordance with the "Cart Replacement" 768 Maximum Service Rate set forth in Exhibit 1 to this Contract or as may be adjusted under the 769 terms of this Contract from time to time. CONTRACTOR shall maintain records documenting all 770 Cart and Bin replacements occurring on a monthly basis.

771 6.06.10 Reporting Reguirements for Replacements. No later than July 15, 772 2016 and annually thereafter during the term of this Contract, CONTRACTOR shall provide 773 CITY with an electronic report of Cart and Bin Replacements provided during the preceding 774 Contract Year in a form and format approved by CITY and using software approved by CITY. At 775 a minimum, the report shall include the size, type, and number of Bins and Carts replaced and 776 the reason for such replacement based upon one of the following five (5) categories: Missing; 777 Stolen; Damaged; Destroyed; or Normal Wear and Tear. The report shall also include a 778 calculation of the base number for Cart and Bin replacements under Section 6.06.9 for the prior 779 Contract Year and the current Contract Year.

780 6.06.11 Cart or Bin Change. As provided below, upon notification to 781 CONTRACTOR by CITY or a Customer that a change in the size or number of Carts or Bins is 782 required, including a change to provide additional Mixed Materials or Organics capacity

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783 CONTRACTOR shall deliver such Carts or Bins to the Service Address by the next regularly 784 scheduled Collection day or within six (6) Work Days (whichever is later).

785 6.06.11.1 Each SFD Service Address shall be entitled to receive two 786 (2) free Mixed Materials Cart exchanges (meaning an increase or decreased Cart size) and two 787 (2) free Organic Materials Cart exchanges during the initial Contract Year, and once every year 788 thereafter during the term of this Contract. , .

789 6.06.11.2 Each MFD Service Address shall be entitled to receive two 790 (2) free service exchanges in the first Contract Year. Beginning on July 1, 2016, each MFD 791 Service Address shall be entitled to receive one (1) free service exchanges per Contract Year 792 during the term of this Contract. For the purposes of this Section, a service exchange 793 represents the exchange of as few as one (1) and as many as the total number of Carts and 794 Bins provided by CONTRACTOR to the Service Address.

795 6.06.11.3 Each CITY Facility shall be entitled to receive one (1) free 796 service exchange per Contract Year during the term of this Contract. For the purposes of this 797 Section, a service exchange represents the exchange of as few as one (1) and as many as the 798 total number of Carts and Bins provided by CONTRACTOR to CITY Facility.

799 6.06.11.4 CONTRACTOR shall be compensated for the cost of those 800 exchanges in excess of the limitations set forth herein per Contract Year, in accordance with the 801 "Cart or Bin Exchange" Maximum Service Rate as set forth in Exhibit 1 of this Contract.

802 6.06.12 Ownership of Carts. Ownership of Carts shall rest with 803 CONTRACTOR and upon termination of this Contract, CONTRACTOR shall be responsible for 804 removing all Carts in service from the Service Area. In the case of the termination of this 805 Contract prior to the expiration of the initial term or optional extension term, CITY shall have the 806 right to take temporary possession of the Carts and shall retain such possession for a 807 reasonable period until satisfactory arrangements can be made to provide Collection Services 808 using other equipment (not to exceed five (5) months). There shall be no monies owing to 809 CONTRACTOR from CITY for such use of the carts. Upon the receipt of written notice from 810 CITY, CONTRACTOR shall submit to the Contract Manager an inventory of Carts, including 811 their locations. , .

8^2 6.06.13 Ownership of Bins. Ownership of Bins shall rest with 813 CONTRACTOR and upon termination of this Contract, CONTRACTOR shall be responsible for 814 removing all Bins in service from the Service Area. In the case of the termination of this 815 Contract prior to the expiration of the initial term or optional extension term, CITY shall have the 816 right to take temporary possession of the Bins and shall retain such possession until satisfactory 817 arrangements can be made to provide Collection Services using other equipment (not to exceed 818 five (5) months). There shall be no monies owing to CONTRACTOR from CITY for such use of 819 the Bins. Upon the receipt of written notice from CITY, CONTRACTOR shall submit to the 820 Contract Manager an inventory of Bins, including their locations.

821 6.06.14 Ownership of Roll-Off Boxes. Ownership of Roll-Off Boxes shall 822 rest with CONTRACTOR and upon termination of this Contract, CONTRACTOR shall be 823 responsible for removing all Roll-Off Boxes in service from the Service Area. In the case of this 824 termination of the Contract prior to the expiration of the initial term or optional extension term 825 due to the default of CONTRACTOR as set forth in Article 29 of this Contract, CITY shall have 826 the right to take temporary possession of the Roll-Off Boxes and shall retain such possession 827 until satisfactory arrangements can be made to provide Collection Services using other


' ' Mixed Materials and Organics Collection Services Contract 9/19/14

828 equipment (not to exceed three (3) months). There shall be no monies owing to 829 CONTRACTOR from CITY for such use of the Roll-Off Boxes.

830 6.07 Compactors. Compactor equipment may be owned by the Customer or leased 831 from CONTRACTOR or any other source provided the Compactor Container is compatible with 832 CONTRACTOR'S Collection vehicles.

833 6.08 Annual Inspection and Cleaning of Bins and Roll-Off Boxes. At least once each 834 Contract Year, at no charge to CITY or the Customer, CONTRACTOR shall inspect all 835 CONTRACTOR provided Bins and Roll-Off Boxes at the Service Address and shall replace 836 those Bins or Roll-Off Boxes needing cleaning or repair, with clean, undamaged Bins or Roll-Off 837 Boxes, and remove the dirty or damaged Bins or Roll-Off Boxes for cleaning or repair.

838 6.09 Extra Service Tags. CONTRACTOR shall make Mixed Materials Extra Service 839 Tags readily available to SFD and MFD Service Addresses at a minimum through the mail, at 840 CONTRACTOR'S office at [Insert Address] and at other retail locations as determined by 841 CONTRACTOR. CONTRACTOR shall maintain a sufficient inventory of Mixed Materials and 842 Organic Materials Extra Service Tags to accommodate Collection of requests from Service 843 Recipients. Mixed Materials Extra Service Tags and Organic Materials Extra Service Tags sold 844 by CONTRACTOR shall be priced in accordance with the Maximum Service Rates set forth in 845 Exhibit 1.

846 * 6.10 Labor and Eguipment. CONTRACTOR shall provide and maintain all labor, 847 equipment, tools, facilities, and personnel supervision required for the performance of 848 CONTRACTOR'S obligations under this Contract. CONTRACTOR shall at all times have 849 sufficient backup equipment and labor (subject to Service Resumption Protocol) to fulfill 850 CONTRACTOR'S obligations under this Contract. No compensation for CONTRACTOR'S 851 services or for CONTRACTOR'S supply of labor, equipment, tools, facilities or supervision shall 852 be provided or paid to CONTRACTOR by CITY or by any Customer except as expressly 853 provided by this Contract.

854 6.11 Holiday Service. January 1, Thanksgiving Day, and December 25'^ shall be 855 designated"! legal holidays. CONTRACTOR shall not be required to provide Collection Services 856 on the designated holidays. In any week in which one of these holidays falls on a Work Day, 857 and CONTRACTOR elects to not provide Collection Services, SFD Collection Services for the 858 holiday and each Work Day thereafter may be delayed one (1) Work Day for the remainder of 859 the week with normally scheduled Collection Services being performed on the next Work Day. 860 MFD, Commercial and CITY Collection Services shall be adjusted as agreed between 861 CONTRACTOR and the Customer but must meet the minimum frequency requirement of one 862 (1) time per week. CONTRACTOR shall notify Service Addresses and CITY at least thirty (30) 863 calendar days in advance of changes to the Collection day because of a holiday schedule.

864 6.12 Processing and Disposal. . „a- - -

865 6.12.1 Compliance with Regulations. All materials Collected under this Contract 866 shall be delivered to facilities that comply with the Department of Resources Recycling and 867 Recovery regulations.

868 6.12.1.1 Regulatory Inguin/. In those instances where 869 CONTRACTOR is required by any law or regulation to submit written or electronic materials 870 related to the provision of Collection Services under the terms of this Contract to any regulatory 871 agency, CONTRACTOR shall submit copies of such written or electronic materials to CITY 872 simultaneously with CONTRACTOR'S submittal to such regulatory agency.

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873 6.12.2 Permits and Approvals. CONTRACTOR must assure that all facilities 874 selected by CONTRACTOR shall possess all necessary permits and approvals by local 875 enforcement agencies to be in full compliance with ail regulatory agencies to conduct all 876 operations at the approved location. CONTRACTOR shall, upon written request from CITY, 877 arrange for the facilities selected by CONTRACTOR to provide copies of facility permits, notices 878 of violations, inspection areas or concerns, or administrative action to correct deficiencies 879 related to the operation. Failure to provide facility information shall result in the levy of 880 liquidated damages as specified in Article 22 of this Contract and may result in CONTRACTOR 881 being in default under this Contract.

882 6.12.3 Disposal and Mixed Materials Processing Facilities. Except as set forth 883 below, all Mixed Materials Collected as a result of performing Collection Services shall be 884 transported to the Disposal Facility or the Mixed Materials Processing Facility. In the event the 885 Facility being utilized by CONTRACTOR is closed on a Work Day, CONTRACTOR shall 886 transport and deliver the Mixed Materials to such other legally permitted Disposal Facility or 887 Mixed Materials Processing Facility as is approved by CITY. Failure to comply with this 888 provision shall result in the levy of liquidated damages as specified in Article 22 of this Contract 889 and may result in CONTRACTOR being in default under this Contract.

890 6.12.4 Organic Materials Processing Facility. All Organic Materials Collected as 891 a result of performing Collection Services shall be delivered to a fully permitted Organic 892 Materials Processing Facility as designated by CONTRACTOR and approved by CITY. In the 893 event the facility is closed on a Work Day, CONTRACTOR shall transport and deliver the 894 Organic Materials to such other legally permitted facility as is approved by CITY. 895 CONTRACTOR shall ensure that all Organic Materials Collected pursuant to this Contract, is 896 delivered to the approved Organic Materials Processing Facility. Failure to comply with this 897 provision shall result in the levy of liquidated damages as specified in Article 22 of this Contract 898 and may result in CONTRACTOR being in default under this Contract.

899 6.13 Inspections. CITY shall have the right to inspect CONTRACTOR'S facilities or 900 Collection vehicles and their contents at any time while operating inside or outside the Service 901 Area.

902 6.14 Commingling of Materials. '

903 6.14.1 Mixed Materials, and Organic Materials. Except as provided in Section 904 28.03.12, Mixed Materials and Organic Materials that have been Source Separated and set out 905 for Collection shall not be commingled by CONTRACTOR prior to delivery to a transfer facility, 906 the Disposal Facility, the Mixed Materials Processing Facility, MRF or Organics Processing 907 Facility as appropriate without the express prior written authorization of the Contract Manager 908 and such authorization shall not be unreasonably withheld.

909 6.14.2 Mixed Materials Collected in Oakland. CONTRACTOR may not 910 commingle Mixed Materials Collected pursuant to this Contract, with other material Collected by 911 CONTRACTOR inside or outside the Service Area prior to delivery to a transfer facility, the 912 Disposal Facility, or a Mixed Materials Processing Facility without the authorization of the 913 Contract Manager and such authorization shall not be unreasonably withheld. However, if 914 permission is given, CONTRACTOR must allocate tons among the cities based on the 915 methodology set forth in Exhibit [ ].

916 6.14.3 Material Separation. Except for those materials Collected as part of the 917 provision of SFD, MFD or City Bulky Goods Collection Services, Mixed Materials, Organic 918 Materials, Recyclable Materials, and Bulky Goods shall not be mixed together in

City of Oakland .. .» ^ \ > < *r - Page 21

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^ Mixed Materials and Organics Collection Services Contract 9/19/14

919 CONTRACTOR'S Collection equipment. Each category of material Collected shall be kept 920 separated according to type or classification.

921 6.15 Spillage and Litter. CONTRACTOR shall not litter premises in the process of 922 providing Collection Services or while its vehicles are on the road. CONTRACTOR shall 923 transport all materials Collected under the terms of this Contract in such a manner as to prevent 924 the spilling or blowing of such materials from CONTRACTOR'S vehicle. CONTRACTOR shall 925 exercise all reasonable care and diligence in providing Collection Services so as to prevent 926 spilling or dropping of Discarded Materials and shall immediately, at the time of occurrence, 927 clean up such spilled or dropped materials in accordance with the "Spill Response Plan" 928 approved by CITY in Exhibit 10 which is attached to and included in this Contract. 929 CONTRACTOR shall commence clean up any spillage or litter by end of Work Day upon notice 930 from the Contract Manager.

931 * ' • 6.15.1 Litter Cleanup. CONTRACTOR is required to clean up reasonable 932 amounts and types of litter around the area of the Container, whether or not CONTRACTOR 933 has caused the litter. In the event of more than one (1) instance in any six (6) month period, 934 not caused by CONTRACTOR, requiring CONTRACTOR to clean up litter around the 935 Containers at a specific Service Address, CONTRACTOR shall make reasonable efforts to 936 contact the Service Recipient and work with the Service Recipient to resolve the litter problem. 937 In the event the litter problem cannot be resolved CONTRACTOR may bill such Customer in 938 accordance with the "litter cleanup" Maximum Service Rate as set forth in Exhibit 1 to this 939 Contract.'." ' . ^ ' r . . .

940 r 6.15.2 Street Litter Containers. Except for Bulky Goods and/or Unacceptable 941 Waste, CONTRACTOR is required to clean up litter in and around street litter Containers 942 regardless of whether CONTRACTOR has caused the litter, and regardless of whether the 943 amount of litter is considered excessive. Should CONTRACTOR discover the presence of 944 Bulky Goods or Unacceptable Waste, and/or if a specific street litter Container has excessive 945 amounts of litter during four (4) consecutive cleanups, CONTRACTOR shall immediately notify 946 CITY. Upon notification, CITY shall determine the process for removing the Bulky Goods, 947 Unacceptable Waste, and/or excessive amounts of litter, including characterizing the pickup as 948 one of CONTRACTOR'S required illegal dumping pickups. CITY and CONTRACTOR shall also 949 meet and confer to discuss whether additional steps are necessary to mitigate excessive litter.

950 6.15.3 Overage Cleanup. CONTRACTOR is required to Collect Discarded 951 Materials, including materials not contained in bags with affixed Mixed Materials or Organics 952 Excess Service Tags, placed for Collection in excess of the capacity of the Container. 953 CONTRACTOR shall be compensated for Collection of Overages not contained in bags with 954 affixed Mixed Materials or Organics Excess Service Tags in accordance with the "Overage" 955 Maximum Service Rate set forth in Exhibit 1 to this Contract.

956 ' 6.15.4 Damage to Public Streets. In the event where damage to public streets 957 within CITY is caused by a hydraulic oil spill from CONTRACTOR'S vehicle, or a vehicle load 958 fire that is dumped onto the street for containment purposes, CONTRACTOR shall be 959 responsible for all repairs to return the street to the same condition it was in prior to the spill or 960 fire. CONTRACTOR shall also be responsible for all clean-up activities related to the spill or 961 fire. Repairs and clean-up shall be performed in a manner satisfactory to the Contract Manager 962 and at no cost to CITY.

963 6.15.5 Oil, Other Vehicle Fluid Spills or Vehicle Load Fires. In the event of a 964 vehicle fluid spill from CONTRACTOR'S vehicle or vehicle load fire, CONTRACTOR shall

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. : ' Mixed Materials and Organics Collection Services Contract 9/19/14

965 immediately respond in the manner as set forth in the "Spill Response Plan" approved by CITY

966 in Exhibit 10 of this Contract.

967 ^ 6.16 Ownership of Materials.

968 6.16.1 Title to Mixed Materials, Organic Materials, Recyclable Materials and 969 Bulky Goods shall pass to CONTRACTOR at such time as said materials are placed in a 970 Container and set out for Collection, or for those materials that are not required to be 971 Containerized, at the time the materials are set out for Collection. 972 6.16.2 Title to other materials Collected as part of other Collection Services 973 offered by CONTRACTOR under the terms of this Contract shall pass to CONTRACTOR at the 974 time the material is placed in a Container utilized by CONTRACTOR for Collection or at a CITY 975 approved Drop-off site; provided, however, title to Unacceptable Waste shall remain with the 976 Generator unless expressly accepted by CONTRACTOR.

977 6.17 Hazardous Waste. Except regarding services provided outside the scope of this 978 Contract, under no circumstances shall CONTRACTOR'S employees knowingly Collect 979 Hazardous Waste, or knowingly remove unsafe or poorly containerized Hazardous Waste, from 980 a Collection Container. If CONTRACTOR determines that material placed in any Container for 981 Collection is Hazardous Waste, or other material that may not legally be accepted at the 982 Disposal Facility or one of the Processing facilities, or presents a hazard to CONTRACTOR'S 983 employees, CONTRACTOR shall have the right to refuse to accept such material. The 984 Generator shall be contacted by CONTRACTOR and requested to arrange for proper Disposal. 985 If the Generator cannot be reached immediately, CONTRACTOR shall, before leaving the 986 premises, leave a Non-Collection Notice that indicates the reason for refusing to Collect the 987 material and submit an incident report to Contract Manager.

988 * 6.17.1 If Hazardous Waste is found in a Collection Container that poses an 989 imminent danger to people property, or the environment, CONTRACTOR shall immediately call 990 911 to notify the City of Oakland Fire Department. CONTRACTOR shall immediately notify 991 CITY of any Hazardous Waste that has been identified, and submit an incident report to 992 Contract Manager.

993 6.17.2 If Hazardous Waste is identified at the time of delivery to the Disposal 994 Facility, or a Processing facility and the Generator cannot be identified, CONTRACTOR shall be 995 solely responsible for handling and arranging transport and disposition of the Hazardous Waste.

996 6.18 Regulations and Record Keeping. CONTRACTOR shall comply with emergency 997 notification procedures required by applicable laws and regulatory requirements. All records 998 required by regulations shall be maintained at CONTRACTOR'S facility. These records shall 999 include waste manifests, waste inventories, waste characterization records, inspection records,

1000 incident reports, and training records.

1001 6.19 Transition. CONTRACTOR understands and agrees that the time between a 1002 July/August 2014 formal Contract signing and Ju l y l , 2015, is intended to provide 1003 CONTRACTOR with ample and sufficient time to, among other things, order equipment, prepare 1004 necessary routing schedules and route maps, obtain any permits and licenses, establish/build 1005 facilities and begin the public awareness campaign as part of CONTRACTOR'S transition 1006 program as specified in Exhibit 6, which is attached to and included in this Contract.

1007 6.20 Property Damage. CONTRACTOR shall be responsible for the repair or 1008 replacement, if repair is not adequate, of any damages to public or private property caused by 1009 CONTRACTOR during the provision of Collection Services.

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1010 ' ^ ARTICLE 7. CHARGES AND RATES 1011 7.01 General. CONTRACTOR shall perform all services required by this Contract in 1012 consideration of the right to bill and collect, from Customers for whom Collection Services are 1013 provided, the Maximum Service Rates as set forth in Exhibit 1 and as may be adjusted under 1014 the terms of this Contract. CITY does not guarantee collection of such Maximum Service Rates. 1015 CONTRACTOR shall not look to CITY for payment of any sums under this Contract, and CITY 1016 has no obligation to pay CONTRACTOR any public funds under this Contract except as 1017 specified in Section 12.07, and Article 18. Nothing in this paragraph is intended to alter the 1018 parties' obligations under Articles 26 and 28.

1019 7.01.1 Rates are Comprehensive Compensation. The Maximum Service Rates, 1020 as set forth in Exhibit 1 and as may be adjusted under the terms of this Contract, shall be the 1021 full, entire and complete compensation due to CONTRACTOR for furnishing all labor, materials, 1022 equipment, supplies and other things necessary to perform all the services required by this 1023 Contract in the manner and at the times prescribed. The Maximum Service Rates include, 1024 without limitation, all costs for the items mentioned in the preceding sentence and also for all 1025 taxes, franchise fees, insurance, bonds, overhead, profit, and all other costs necessary to 1026 perform all the services required by this Contract in the manner and at the times prescribed. 1027 The Maximum Service Rates include all costs associated with complying with all current federal 1028 and State statutes, and CITY and County ordinances concerning public health, safety and 1029 environmental issues and all laws, regulations, rules, orders, judgments, degrees, permits, 1030 approvals, or other requirement of any governmental agency having jurisdiction over the 1031 services provided by CONTRACTOR under the terms of this Contract, including any current 1032 provisions that become effective on or which require compliance by a date after the effective 1033 date of this Contract.

1034 7.01.2 Annual Rate Adjustment. On Ju ly l , 2016, and each July l thereafter 1035 during the term of the Contract (each an "Adjustment Date"), the Maximum Service Rates shall 1036 be adjusted by an "Annual Rate Adjustment." The Annual Rate Adjustment will include the 1037 Refuse Rate Index adjustment (Section 7.16.2 and Exhibit 2), and adjustments due to changes 1038 in Franchise Fees (Section 7.01.3) and Changes in Government Fees (Section 7.01.4).

1039 7.01.3 Changes in Franchise Fees. The Maximum Service Rates shall be 1040 adjusted as of July 1, 2016, and annually thereafter (the "Adjustment Date"), to fully capture 1041 CONTRACTOR'S increased costs based on new or increased Franchise Fees implemented or 1042 to be implemented since the previous Adjustment Date (or July 1, 2015 regarding the July 1, 1043 2016 adjustment).

1044 7.01.3.1 This Franchise Fee adjustment will be calculated prior to

1045 the upcoming July 1 Adjustment Date as follows:

1046 7.01.3.1.1. Determine item weight of Franchise Fees:

1047 ' Total Franchise Fees for the previous calendar year ended 1048 December 31 / (Total Allowable Expenses for all Cost Categories under MM&O Contract for 1049 previous calendar year ending December 31). 1050 7.01.3.1.2. Multiply the result of 7.01.3.1.1 by the percentage 1051 change in the annual average of the Franchise Fee cost indicator (Series ID: cuura422sa0 1052 Consumer Price Index, All Urban Consumers, All Items, San Francisco-San Jose-Oakland, CA) 1053 as set forth in Section 2 of Exhibit 2 to this Contract to determine the Franchise Fee percentage 1054 adjustment. ,

Page 24



1055 7.01.3.1.3. Add 7.01.3.1.2 to the MM&O RRI adjustment (along 1056 with Government Fee adjustments, if any) to arrive at the Annual Rate Adjustment.^

1057 7.01.4 Changes in Government Fees. On July 1, 2015, Maximum Service Rates 1058 will be adjusted to capture new and increased Government Fees/Taxes (collection, processing 1059 and disposal) since January 1, 2013.

1060 7.01.4.1 The Maximum Service Rates shall be adjusted on each 1061 Adjustment Date to fully capture CONTRACTOR'S increased costs based on new or increased 1062 Government Fees (collection, processing and disposal) implemented or to be implemented 1063 since the previous Adjustment Date (or July 1, 2015 regarding the July 1, 2016 adjustment). 1064 For purposes of this Section, "Government Fees" are surcharges, fees, assessments, taxes 1065 (non-income), licenses, and other amounts payable to federal, state or local authorities in 1066 relation to CONTRACTOR'S performance hereunder. Specifically, Government Fees include, 1067 but are not limited to, San Leandro Mitigation (Franchise) Fee, San Leandro Business Tax, 1068 Alameda County LEA Fee, and, regarding Disposal RRI Government Fees, those listed in Form 1069 2 of CONTRACTOR'S January 9, 2013 SG3 proposal.

1070 7.01.4.2 The three (collection, processing, and disposal) 1071 Government Fees/Taxes adjustments will be calculated prior to the upcoming July 1 Adjustment 1072 Date as follows:

1073 ' 7.01.4.2.1. Determine item weight of each Government 1074 Fees/Taxes Cost Category:

1075 (Total Government Fees/Taxes for previous calendar year ending December 31) / (Total 1076 Allowable Expenses for all Cost Categories under MM&O Contract for previous calendar 1077 year ending December 31))

1078 7.01.4.2.2. Determine percent change of each Government 1079 Fees/Taxes Cost Category for upcoming July 1 - June 30 period:

1080 ((Total Government Fees/Taxes (on per ton basis) for upcoming July 1 - June 30) -1081 < (Total Government Fees/Taxes (on a per ton basis) for the just completed July 1 -1082 June 30)) / (Total Government Fees/Taxes (on a per ton basis) for the just completed 1083 July 1-June 30)

1084 7.01.4.2.3. Multiply the result of 7.01.4.2.1 by the result of 1085 7.01.4.2.2 to determine the weighted percentage change of each Government Fees/Taxes Cost 1086 Category. - .

1087 7.01.4.2.4. Add 7.01.4.2.3 to the MM&O RRI adjustment (along 1088 with Franchise Fee adjustments, if any) to arrive at the Annual Rate Adjustment.

1089 7.01.4.3 In the event of a new Government Fee/Tax, or a change in 1090 an existing Government Fee/Tax, which becomes effective at some time other than July 1 of 1091 any year, CONTRACTOR shall be compensated for such change through the inclusion of a 1092 "Retroactive Element" in the next Annual Rate Adjustment. However, in the event that the

^ For purposes of clarity, the Franchise Fee adjustment and three Government Fee adjustments are not included in the MM&O RRI adjustment, but are added to the MM&O RRI adjustment to arrive at the Annual Rate Adjustment. As such, these four adjustments are not subject to the caps as provided in Section 7.6.2.1 of the Contract.

City of Oakland ' , Page 25


1093 Government Fee/Tax is imposed by CITY, a rate adjustment shall occur at the time such fee 1094 becomes effective. CITY and CONTRACTOR agree that the "Retroactive Element" shall be an 1095 amount needed to compensate CONTRACTOR for increases in Government Fees/Taxes paid 1096 during the period from the inception of the fee increase through the subsequent June 30 and 1097 shall not include interest, overhead, or any other costs of any type. The "Retroactive Element" 1098 shall only be included in the rate structure for twelve (12) months or that period necessary to 1099 allow CONTRACTOR to recover all retroactive amounts, if less than twelve (12) months, and 1100 shall be removed prior to calculating the rates to be set as of the subsequent July 1. However, 1101 no governmental fees or charges to which CONTRACTOR agrees contractually or negotiates 1102 shall be passed through to Customers unless agreed to in writing by CITY.

1103 7.01.5 Payment of Governmental Fees. CONTRACTOR shall pay, when and as 1104 due, any and all governmental fees to the appropriate federal. State, regional, or local 1105 governmental entities that levied the fees, and shall provide CITY with proof of such payments 1106 promptly upon request.

1107 7.02 CONTRACTOR Billing. CONTRACTOR shall be responsible for the billing and 1108 collection of payments for all Collection Services. The rates charged by CONTRACTOR to 1109 Customers for the provision of Collection Services shall not exceed the Maximum Service Rates 1110 authorized by CITY and attached in Exhibit 1 to this Contract and as adjusted under the terms of 1111 this Contract. CITY shall approve the format and text for all Customer bills and notices. Billing 1112 errors identified by CONTRACTOR or Customer shall be corrected within two (2) business 1113 days. Customers who notified CONTRACTOR of billing errors shall either be provided with a 1114 statement credit or sent a revised bill within three (3) business days after the error is corrected. 1115 CONTRACTOR shall use the mailing address provided by the Customer.

1116 7.03 CONTRACTOR as Billing Agent. CONTRACTOR shall Collect Maximum 1117 Recycling Service Rates as billing agent for services provided to Customers by CITY'S 1118 Residential Recycling Contractor. CONTRACTOR shall base its billings for Residential 1119 Recycling Collection Services on the Maximum Recycling Service Rates as set forth in Exhibit 1 1120 and Customer information provided by the Residential Recycling Contractor and/or CITY as 1121 appropriate. [This may change after a final determination is made as to who is going to provide 1122 the actual dwelling unit count for the invoices - the RR Contractor or the City.]

1123 7.04 Production of SFD Customer Invoices. CONTRACTOR shall invoice SFD 1124 Customers for SFD Collection Services and SFD Recycling Collection Services in advance of 1125 service, on a quarterly basis beginning Ju ly l , 2015. The invoice shall be remitted to the 1126 Customer no earlier than the first day of the period for which the service is being billed. The 1127 invoice shall be produced in a form and format that is approved by CITY.

1128 7.04.1 The Collection Services rate shall be based on Container size and 1129 frequency of Collection and include all costs of providing Collection Services including 1130 Processing, Disposal and franchise fee costs. The SFD Recycling Collection Services rate shall 1131 be a flat maximum Per Dwelling Unit rate as provided by CITY and any ancillary charges as 1132 may have been provided by the Residential Recycling Contractor in the manner set forth in 1133 Section 7.04.2 below.

1134 7.04.2 No less than fifteen (15) calendar days before the first day of each 1135 monthly billing period beginning on August 1, 2015, the Residential Recycling Contractor may 1136 provide a SFD ancillary service invoice to CONTRACTOR for any ancillary charges that it may 1137 have incurred. The ancillary service invoice is to be produced in the form and format approved 1138 by CITY and include, at a minimum, the Customer name. Service Address and billing address 1139 along with a specific description of each ancillary charge. To the extent the invoice is received

i ; Page 26



1140 in a timely manner and contains the necessary information in the required form and format 1141 CONTRACTOR shall include those ancillary charges in the invoices prepared for the upcoming 1142 billing cycle. In the event the ancillary service invoice is not received in a timely manner or the 1143 information is not provided in the required form and format, CONTRACTOR shall notify CITY 1144 and the Residential Recycling Contractor of the timing or format discrepancies and shall not be 1145 required to include the ancillary charges in the invoices prepared for the upcoming billing cycle. 1146 [Depending upon who is awarded the contract, this may be deleted]

1147 7.05 Production of MFD Customer Invoices. CONTRACTOR shall invoice MFD 1148 Customers for MFD Collection Services and MFD Recycling Collection Services in advance, not 1149 less than monthly beginning July 1, 2015. The invoice shall be remitted to the Customer no 1150 earlier than the first day of the period for which the service is being billed. The invoice shall be 1151 produced in a form and format that is approved by CITY.

1152 * 7.05.1 The Maximum Collection Services Rates shall be based on Container 1153 size and frequency of Collection and include all costs of providing Collection Services including 1154 Processing, Disposal and franchise fee costs. The MFD Recycling Collection Services rate 1155 shall be a flat maximum Per Dwelling Unit rate as provided by CITY and any ancillary charges 1156 as may have been provided by the Residential Recycling Contractor in the manner set forth in 1157 Section 7.05.2 below. _ , . .

1158 7.05.2 No less than fifteen (15) calendar days before the first day of each billing 1159 period beginning with the August 1, 2015 billing period, the Residential Recycling Contractor 1160 may provide a MFD ancillary service invoice to CONTRACTOR for any ancillary charges that it 1161 may have incurred. The ancillary service invoice is to be produced in the form and format 1162 approved by CITY and include, at a minimum, the Customer name. Service Address and billing 1163 address along with a specific description of each ancillary charge. To the extent the invoice is 1164 received in a timely manner and contains the necessary information in the required form and 1165 format CONTRACTOR shall include those ancillary charges in the invoices prepared for the 1166 upcoming billing cycle. In the event the ancillary service invoice is not received in a timely 1167 manner or the information is not provided in the required form and format, CONTRACTOR shall 1168 notify CITY and the Residential Recycling Contractor of the timing or format discrepancies and 1169 shall not be required to include the ancillary charges in the invoices prepared for the upcoming 1170 billing cycle. [Depending upon who is awarded the contract, this may be deleted]

1171 7.06 Production of Commercial Customer Invoices. CONTRACTOR shall invoice 1172 Commercial Customers for Commercial Collection Services, in arrears but no less than twelve 1173 (12) times per year. Invoices shall be remitted no earlier than the first day of the month 1174 following the month for which the service is being billed. The invoice shall be produced in a 1175 form and format that is approved by CITY. The Commercial invoice shall include at a minimum, 1176 a Collection rate which shall be based on Container size and frequency of Collection and 1177 include all costs of providing Collection Services including Processing, Disposal and franchise 1178 fee costs. ,

1179 7.07 Invoices for Temporary Roll-Off Boxes. Customers utilizing temporary Roll-Off 1180 Boxes shall be invoiced in arrears of the provision of service although a deposit may be required 1181 in advance.

1182 7.08 Partial Month Service. If, during a month, a Customer is added to or deleted 1183 from CONTRACTOR'S Service Area, CONTRACTOR'S billing shall be pro-rated based on the 1184 service rate established in Exhibit 1 divided by four (4), and multiplied by the number of actual 1185 weeks in the month that service was provided to the Customer. CONTRACTOR shall refund 1186 customers who terminate service any pre-paid amount.

City of Oakland ' : ' ^ Page 27


1187 7.09 Customer Self Haul. On or before July 15, 2015 and annually thereafter during 1188 the term of this Contract, CITY shall provide CONTRACTOR with an electronic list of those 1189 Service Addresses that have obtained a self-haul permit. Beginning August 15, 2015 and 1190 monthly thereafter during the term of this Contract, CITY shall provide an electronic update of 1191 any additional Service Addresses that have obtained a self-haul permit.

1192 7.10 CITY Provided Billing Inserts. CITY may provide educational and other material 1193 to CONTRACTOR for inclusion in the invoices provided by CONTRACTOR to SFD, MFD and 1194 Commercial Customers as set forth in Article 17.

1195 7.11 Methods of Payment. CONTRACTOR shall provide the means for Customers to 1196 pay bills through the following methods: cash, checks, credit cards, internet payment service or 1197 automatic withdrawal from bank account. On-line (E-Pay) bill methods shall be password 1198 protected and comply with federal regulations protecting the privacy of Customer credit 1199 information. CONTRACTOR shall provide evidence of such security certifications and advise 1200 CITY of CONTRACTOR'S security measures implemented for on-line payment.

1201 ' ; 7.12 Delinguent Service Accounts. ^ ,

1202 i- < 7.12.1 SFD invoices shall be delinquent when they are unpaid on the forty-fifth 1203 (45th) day of the quarterly billing cycle. CONTRACTOR may charge late fees as set forth in 1204 Section 7.13.1 and take such action as is legally available to collect or cause collection of past 1205 due amounts, including requesting permission of CITY to terminate Collection Services in 1206 accordance with the process set forth below. •

1207 V t 7.12.2 MFD invoices shall be delinquent when they are unpaid on the last day of 1208 the monthly billing cycle. CONTRACTOR may charge late fees as set forth in Section 7.13.1 1209 and take such action as is legally available to collect or cause collection of past due amounts, 1210 including requesting permission of CITY to terminate Collection Services in accordance with the 1211 process set forth below. # . = .

1212 ' : 'V. 7.12.3 Commercial invoices shall be delinquent when they are unpaid on the last 1213 day of the monthly billing cycle. CONTRACTOR may charge late fees as set forth in Section 1214 7.13.1 and take such action as is legally available to collect or cause collection of past due 1215 amounts, including requesting permission of CITY to terminate Collection Services in 1216 accordance with the process set forth below. ^

1217 7.13 Delinguent Service Account Termination Process. CONTRACTOR may 1218 implement the following service termination process for SFD, MFD and Commercial Customers 1219 whose accounts are delinquent.

1220 7.13.1 CONTRACTOR may charge a delinquent Customer a late fee which is 1221 the greater of Five Dollars ($5.00) or one and one half (1.5) percent per month (not 1222 compounded). CONTRACTOR may take such action as is legally available to collect or cause 1223 collection of such past due amounts.

1224 7.13.2 CONTRACTOR may issue a delinquency notice at any point after the 1225 account becomes delinquent. Sections 7.13.2.1 through 17.13.12 outline processes regarding 1226 notification and cure of such delinquencies and associated issues, including without limitation 1227 regarding notification and collection of delinquencies, termination of service, and CITY'S option 1228 to subscribe to service on behalf of delinquent SFD and MFD property owners to whom 1229 CONTRACTOR has terminated service and to impose special assessments against delinquent 1230 properties to recover the costs of such service. With respect to the timelines related to the 1231 delinquency notices and hearings set forth in Sections 7.13.2.1 through 17.13.12, CITY

Page 28



1232 reserves the right to modify the timelines by written policy adopted by the City Administrator, or 1233 his or her designee, after consultation with CONTRACTOR.

1234 7.13.2.1 Delinquency notice will be sent to the property owner and 1235 billing address.

1236 7.13.2.2 Delinquency notice will include information on Hearing 1237 scheduled approximately fifteen (15) calendar days after date of the notice to dispute the non-1238 payment. . ^

1239 7.13.2.3 Delinquency notice will specify that failure to pay the bill 1240 may result in termination of service and that CITY will deem lack of service to be a nuisance.

1241 7.13.2.4 For SFD and MFD Customers, delinquency notice will 1242 further provide that CITY may, in order to abate the nuisance, subscribe on behalf of the 1243 property owner at the property owner's expense beginning with the next billing cycle and impose 1244 as special assessment against the property on which the nuisance is maintained.

1245 7.13.3 CONTRACTOR, subject to its compliance with the requirements of 1246 Section 7.13, has the right to terminate service if the bill remains unpaid on the forty-fifth (45th) 1247 day after issuing the delinquency notice.

1248 7.13.4 CONTRACTOR and CITY will hold hearing concerning delinquent bills on 1249 the date specified in the delinquency notice (typically the sixtieth (60th) day of the billing cycle).

1250 7.13.5 Following the Hearing (typically the sixty-first (61st) day of the billing 1251 cycle), CONTRACTOR, on CITY'S behalf, will send final delinquency notice to property owner, 1252 billing address, and Service Address for the accounts with a past due balance notifying them 1253 that service will be terminated by CONTRACTOR on the ninetieth (90th) day of the billing, if 1254 CONTRACTOR does not receive payment, and that CITY may declare the failure to maintain 1255 service for the property a nuisance. For SFD and MFD Customers, the final delinquency notice 1256 shall further provided that CITY may (a) subscribe to service on the property owner's behalf at 1257 the property owner's expense to abate the nuisance; and (b) impose a special assessment on 1258 the property for the costs associated with abating the nuisance. i,

1259 > . 7.13.6 No sooner than the first day of the next billing cycle, CONTRACTOR shall 1260 provide CITY a list of properties (Service Addresses) to which it will stop service for non-1261 payment. The list is to be produced in the form and format approved by CITY and include, at a 1262 minimum, the Customer name. Service Address and billing address, assessor's parcel number 1263 (APN), Customer service level (i.e., number and size of Containers, frequency of Collection), 1264 and Customer billing rate for the next billing cycle.

1265 7.13.7 The next business day following its receipt of the list described in Section 1266 7.13.6, or as soon as reasonably practicable thereafter, CITY will elect, with respect to SFD and 1267 MFD Service Addresses only, whether to declare the conditions on the property to be a 1268 nuisance and subscribe to service on behalf of property owner at the property owner's expense 1269 to abate nuisance.

1270 7.13.8 Approximately ten (10) days following its election under Section 7.13.7, 1271 CITY will confirm status of delinquent accounts with CONTRACTOR and, for those properties 1272 for which the City has subscribed on behalf of the property owner, imposes a special

City of Oakland , ; Page 29


1273 assessment on those properties that are still delinquent. CITY will provide notice to property 1274 owner (as determined from County Assessor's or Recorder's records) by certified mail.^

1275 7.13.9 Upon receipt of proceeds from the special assessment, CITY will fonward 1276 the portion of the special assessment attributable to CONTRACTOR billing to CONTRACTOR. 1277 CITY'S financial liability to CONTRACTOR for payment for services rendered when CITY 1278 declares a nuisance and subscribes on behalf of the property owner is limited to the proceeds of 1279 such special assessments.

1280 7.13.10 CONTRACTOR can require that in order to reestablish service the 1281 Customer must pay any past-due amounts. However, CONTRACTOR shall not be required to 1282 address any outstanding assessment before resuming service, but CONTRACTOR shall 1283 promptly notify CITY of the initiation of service.

1284 7.13.11 CONTRACTOR may require a credit card, or at the discretion of 1285 the Service Recipient, a deposit equal to one billing cycle's payment, be maintained on file for 1286 any Customer whose account went into ninety (90) day delinquency.

1287 • 7.13.12 CITY will continue to subscribe on Customer's behalf and impose 1288 special assessments for each billing cycle until it is notified by CONTRACTOR that Customer 1289 has cleared delinquent account with CONTRACTOR and subscribed to service. Throughout the 1290 period in which CITY has subscribed on behalf of the property owner, CONTRACTOR shall bill 1291 CITY and send a copy of such bill to the property owner and the last known billing address for 1292 the Customer. The bill shall indicate that CONTRACTOR has terminated service as a result of 1293 Customer's non-payment, that as a result CITY has declared the property a nuisance due to the 1294 Customer's failure to maintain service, that CITY has subscribed to service on behalf of the 1295 property owner at the property owner's expense to abate the nuisance, and that CITY will 1296 impose a special assessment for the costs of abating the nuisance, and that the Customer may 1297 avoid the imposition of further special assessments by paying its delinquent balances with 1298 CONTRACTOR and reinstating its account.

1299 J * 7.14 CONTRACTOR'S Payment to Residential Recycling Contractor.

1300 • 7.14.1 Residential Recycling Contractor Invoice. In accordance with the terms 1301 and conditions of the Memorandum of Understanding between CONTRACTOR, CITY and the 1302 Residential Recycling Contractor as set forth in Exhibit 15 which is attached to and included in 1303 this Contract, CONTRACTOR shall receive a monthly invoice based on the agreed upon 1304 number of SFD and MFD Dwelling Units and any ancillary services performed, in the form and 1305 format set forth in Exhibit 15, from the Residential Recycling Contractor within ten (10) calendar 1306 days of the end of each month beginning with the month of July 2015.

1307 7.14.2 Authorization of Payment by CITY. In accordance with the terms and 1308 conditions of the Memorandum of Understanding between CONTRACTOR, CITY and the 1309 Residential Recycling Contractor as set forth in Exhibit 15 to this Contract, CITY shall provide 1310 payment authorization to CONTRACTOR prior to the payment of each monthly invoice to the 1311 Residential Recycling Contractor.

1312 7.14.3 Timing of Monthly Invoice Payment. In the event CONTRACTOR 1313 receives payment authorization from CITY as set forth in Section 7.14.2, no later than twenty 1314 (20) calendar days from the date the monthly invoice was due to CONTRACTOR,

^ Gov. Code section 38773.5(b) provides that notice by certified mail "shall be given at the time of imposing the assessment."

Page 30



1315 CONTRACTOR shall remit payment of the monthly invoice to the Residential Recycling 1316 Contractor no later than thirty (30) calendar days from the date the monthly invoice was due to 1317 CONTRACTOR and send a copy to the Contract Manager. In the event CONTRACTOR does 1318 not receive payment authorization from CITY as set forth in Section 7.14.2, within twenty (20) 1319 calendar days from the date the monthly invoice was due to CONTRACTOR, CONTRACTOR 1320 shall remit payment of the monthly invoice to the Residential Recycling Contractor within ten 1321 (10) calendar days of receipt of such payment authorization and shall send a copy to the 1322 Contract Manager. . ^ ' ,

1323 7.14.4 Timing of Payment of Ancillary Charges. CONTRACTOR shall be 1324 responsible for payment to the Residential Recycling Contractor of those ancillary charges 1325 included in the SFD and MFD invoices provided for in Sections 7.04.2 and 7.05.2, only to the 1326 extent such ancillary charges are collected by CONTRACTOR. Such payment shall be made 1327 no later than ten (10) calendar days following the month in which the funds were collected and 1328 shall be accompanied by a remittance form in the format approved by CITY and include at a 1329 minimum the Customer name and billing address along with a specific description of each 1330 ancillary charge and the date invoiced with a copy to the Contract Manager.

1331 7.14.5 Non-Payment of Monthly Invoice or Ancillary Charges. In the event 1332 CONTRACTOR does not provide payment of monthly invoices or ancillary charges to 1333 Residential Recycling Contractor in the time and manner set forth in this Section, CITY shall, 1334 within five (5) Work Days of receiving knowledge of such non-payment, draw such funds as are 1335 necessary from CONTRACTOR'S letter of credit established in Section 24.03 of this Contract to 1336 pay the Residential Recycling Contractor. [Delete if MMO and RR are the same contractor]

1337 7.15 CONTRACTOR'S Maximum Service Rates. Maximum Service Rates shall 1338 consist of a Maximum MMO Service Rate, which includes all costs of providing Collection 1339 Services including but not limited to Collection, Processing, Disposal, and franchise fee costs, 1340 and such other charges as may be added by CITY during the term of this Contract and a 1341 Maximum Per Dwelling Unit Recycling Rate as approved by CITY. CONTRACTOR shall not be 1342 entitled to any compensation that is not listed in Exhibit 1. On or after July 1, 2015, and each 1343 subsequent July 1, CONTRACTOR'S Maximum Service Rates shall be adjusted as set forth in 1344 the next section below. ,

1345 7.16 Annual Rate Adjustments.

1346 7.16.1 Annual Adjustment to Maximum Service Rates Prior to Start of Collection 1347 Services. In order to provide some mitigation for inflation between the time that the Maximum 1348 Service Rates were proposed and the time when Collection Services will commence, the 1349 Maximum Collection Service Rates as set forth in Exhibit 1 to this Contract shall be adjusted on 1350 July 1, 2015 by the annual change in the Consumer Price Index - All Urban Consumers, Series 1351 ID cuura422sa0. Not Seasonally adjusted, San Francisco-Oakland-San Jose, CA for the prior 1352 calendar year, January 1, 2014 through December 31, 2014.

1353 7.16.2 Annual Adjustment to Maximum Service Rates After Start of Collection 1354 Services. On each Adjustment Date, the Maximum Service Rates as set forth in Exhibit 1 shall 1355 be adjusted by an Annual Rate Adjustment, which will include a RRI adjustment, pursuant to 1356 this Section 7.16.2. and Exhibit 2 to this Contract, as well as Franchise Fee and Government 1357 Fee/Tax adjustments. The RRI adjustment is calculated independently of the Franchise Fee 1358 and Government Fee/Tax adjustments.

City of Oakland <' . Page 31


1359 7.16.2.1 Annual Rate Adjustment. On the Adjustment Date during 1360 the term of this Contract, the Maximum Service Rates set forth in Exhibit 1 shall be adjusted by 1361 a RRI adjustment pursuant to this Section 7.16.2.1 and Exhibit 2 to this Contract.

1362 7.16.2.1.1. Cost Category Weight. Contractor will calculate the total of all 1363 Allowable Expenses (as defined in Exhibit 2) for each Cost Category (also defined in Exhibit 2) 1364 for the period of July 1, 2015 through December 31, 2015. Each Cost Category will then be 1365 assigned an "item weight" based on the proportionate share of its Allowable Expenses total to 1366 the total of all Allowable Expenses for all Cost Categories. For example, if the Allowable 1367 Expenses of the Diesel Fuel Cost Category total One Hundred Dollars ($100), and the 1368 Allowable Expenses within all Cost Categories is Two Thousand Dollars ($2,000), then the 1369 Diesel Fuel Cost Category's item weight will be five (5) percent. The Cost Categories shall be 1370 reweighed every year based on allowable expenses thereafter from January 1 through 1371 December 31. • ; \ ,

1372 7.16.2.1.2. Annual Rate Adjustment Calculation. The RRI adjustment (a 1373 component of the Annual Rate Adjustment) shall be the lower of: (i) six (6) percent, or (ii) the 1374 sum of the weighted percentage change (based on the total of all Cost Categories) in the Cost 1375 Indicators of Cost Categories 1 - 8 (each described in Exhibit 2) from the previous review date 1376 to the current review date. For Cost Category Items 2 (Diesel Fuel), 3 (CNG Fuel), 4 (Vehicle 1377 Replacement), 5 (Vehicle Maintenance), and all but the Union Labor Cost Category of Items 6 1378 (Davis Street Processing) and 7 (Disposal) and 8 (All Other), the current review year is the most 1379 recent calendar year ended December 31. For Cost Category Item 1 (MM&O Union Labor), and 1380 the Union Labor Cost Category of Items 6 (Davis Street Processing) and 7 (Disposal), the 1381 current review date is July 1 of the current year. See Exhibit 2.

1382 7.16.2.1.3. The weighted percentage change in the Cost Indicator of a Cost 1383 Category may be either positive or negative. There shall be no limit on Annual Rate 1384 Adjustments, but an RRI adjustment shall not be greater than six (6) percent in any individual 1385 year (except the final year of the original Contract term and the final year of any extension 1386 Contract terms when it may not be greater than eight (8) percent) or lower than Negative 5 (-5) 1387 percent. In any year that the RRI adjustment calculation is more than six (6) percent, the 1388 amount above six (6) percent and up to eight (8) percent shall be carried-forward to successive 1389 RRI adjustments under this Contract until applied or the Contract terminates. RRI adjustments 1390 in any year in excess of eight (8) percent shall not be carried forward to any future year. With 1391 regard to the July 1, 2024, RRI adjustment, carried-forward RRI adjustment amounts that had 1392 not been recouped in previous RRI adjustments due to the six (6) percent cap shall be recouped 1393 to the extent they do not exceed eight (8) percent. With regard to the Ju ly l , 2029, RRI 1394 adjustment, carried-forward RRI adjustment amounts that had not been recouped in 2025, 1395 2026, 2027 or 2028 RRI adjustments due to the six (6) percent cap shall be recouped to the 1396 extent they do not exceed eight (8) percent. With regard to the July 1, 2034, RRI adjustment, 1397 carried-forward RRI adjustment amounts that had not been recouped in 2030, 2031, 2032 or

^ Categories 9 (Government Fees/Taxes - Disposal), 10 (Government Fees/Taxes -Processing), 11 (Government Fees/Taxes - Collection), and 12 (Franchise Fees) will be used for purposes of weighting the RRI Cost Categories, but they will not be included in the RRI calculation. Instead, they will be added to the RRI calculation.

Page 32



1398 2033 RRI adjustments due to the six (6) percent cap shall be recouped to the extent they do not 1399 exceed eight (8) percent.

1400 7.16.2.1.4. Should CONTRACTOR agree to labor increases with Local 70 1401 that exceed the labor increase allowable under the 2009 CBA ("differential"), those differential 1402 amounts shall not be included in the RRI adjustment (i.e., as a CONTRACTOR cost for 1403 purposes of calculating a percent change of the MM&O Union Labor Cost Category). However, 1404 such differential amounts shall be recovered by CONTRACTOR in Annual Rate Adjustments by 1405 applying them to the Maximum Service Rates in equal installments over a three (3) year period, 1406 including the year in which the differential is first incurred. For example, if the weighted 1407 differential between the 2009 CBA and a subsequent CBA is three tenths (0.3) percent, then the 1408 current Annual Rate Adjustment would be increased by one tenth (0.1) percent and the two (2) 1409 subsequent Annual Rate Adjustments by one tenth (0.1) percent. For purposes of clarity, 1410 recovery of the differential amounts shall not be subject to any cap under this section.

1411 7.16.2.2 Diversion Adjustment. Beginning with the Ju ly l , 2017, 1412 rate adjustment, the diversion adjustment shall be applied to all RRI adjustments. Except for 1413 those instances as set forth in Section 7.16.2.4 when the reciprocal of the diversion adjustment 1414 is required to be used, the diversion adjustment shall be the lesser of one hundred (100) 1415 percent or the percentage calculated by dividing the diversion rate achieved by CONTRACTOR 1416 in the calendar year immediately preceding the effective date of the rate adjustment, by the 1417 minimum annual Diversion requirement for that calendar year, pursuant to Articles of this 1418 Contract and as set forth in Exhibit 8, which is attached to and included in this Contract. The 1419 diversion rate achieved by CONTRACTOR each calendar year will be calculated using Table B 1420 of Exhibit 8. In the event the diversion adjustment is less than one hundred (100) percent, the 1421 adjustment shall only be effective for one (1) year and shall be removed prior to calculating the 1422 subsequent year's rate adjustment as set forth in Section 7.16.2.1 above.

1423 7.16.2.3 In any year that the RRI adjustment results in a positive 1424 number, the RRI Adjustment shall be adjusted by multiplying the RRI adjustment by the 1425 diversion adjustment.

1426 7.16.2.4 In any year that the RRI adjustment results in a negative 1427 number, RRI Adjustment shall be adjusted by multiplying the RRI adjustment by the reciprocal 1428 of the diversion adjustment. For example if the diversion adjustment was ninety-five (95) 1429 percent, the reciprocal of the diversion adjustment would be calculated by dividing one hundred 1430 (100) percent by ninety-five (95) percent. (100.00% / 95% = 105.26%).

1431 7.16.2.5 In any year that the Annual Rate Adjustment is a negative 1432 number, CITY may, at its sole discretion, choose to postpone the implementation of the 1433 adjustment for one (1) year. In that event the current year rate would remain the same and the 1434 subsequent year rate would be calculated by first, applying the negative Annual Rate 1435 Adjustment to the current rate and then applying the subsequent years Annual Rate Adjustment 1436 to that rate. For example if the Year X rate was $100.00 and the Year X+1 Annual Rate 1437 Adjustment was -2.2% and the Year X+2 Annual Rate Adjustment was +2.2% and CITY chose 1438 to not apply the negative Annual Rate Adjustment in Year X+1 then the rate in Year X+1 would 1439 be $100.00 and the rate in Year X+2 would be $99.95 ($100.00 x -2.2% = $97.80 x 2.2% = 1440 $99.95).

1441 7.16.2.6 In any year that CITY choses to postpone the 1442 implementation of a negative Annual Rate Adjustment for one (1) year, CONTRACTOR shall 1443 retain those excess funds that it collects as a result of the Maximum Service Rates not being 1444 reduced for that year in the Recycling stability account as set forth in Section 7.21.1 below for

City of Oakland / " Page 33


1445 use in such manner as may be directed by the Contract Manager. An accounting of the funds 1446 shall be provided to the Contract Manager by the fifteenth (15th) day of each month after the 1447 month in which the funds are collected and shall be accompanied by such documentation as 1448 may be requested by CITY. ' • ' .<

1449 7.17 Reguired Information. «

1450 7.17.1 Financial Information. On or before March 1, 2016, and annually 1451 thereafter during the term of this Contract, CONTRACTOR shall deliver to CITY financial 1452 information for the specific services performed under this Contract for the preceding calendar 1453 year. Such financial information shall be in the format as set forth in Exhibit 2, or as may be 1454 further revised by CITY from time to time. If CONTRACTOR fails to submit the financial 1455 information in the required format by March 1, it is agreed that CONTRACTOR shall be deemed 1456 to have waived the RRI adjustment for the next billing period and if the delayed submission 1457 exceeds three (3) months then the increase will be delayed for a second billing period.

1458 7.17.2 Diversion Data. On or before March 1, 2017, and annually thereafter 1459 during the term of this Contract, CONTRACTOR shall deliver to CITY diversion data for the 1460 specific services performed under this Contract in the format specified by CITY. If 1461 CONTRACTOR fails to submit the diversion data in the required format by March 1, 1462 CONTRACTOR may be subject to daily liquidated damages pursuant to Article 22.

1463 . • • ' 7.17.3 Adjustments. Annual Maximum Service Rate adjustments shall be made 1464 only in units of one cent ($0.01). Fractions of less than one cent ($0.01) shall not be considered 1465 in making adjustments. The indices shall be rounded at four (4) decimal places for the 1466 adjustment calculations.

1467 7.17.4 If CONTRACTOR'S failure to submit the financial required under Section 1468 7.16 is the result of extraordinary or unusual circumstances as demonstrated by 1469 CONTRACTOR to the reasonable satisfaction of the Contract Manager, CITY, at its reasonable 1470 discretion, may consider the request for the annual Maximum Service Rate adjustment.

1471 7.17.5 As of May 15, 2016, and annually thereafter during the term of this 1472 Contract, the Contract Manager shall notify CONTRACTOR of the Maximum Service Rate 1473 adjustment to the affected service rates to take place on the subsequent July 1.

1474 i ' 7.17.6 Adjustments Due to Changes In Law. CONTRACTOR agrees that no 1475 extraordinary adjustment shall occur or rate adjustment be provided except as set forth in Article 1476 30 and Sections 28.01 and 28.02.

1477 7.17.7 CONTRACTOR'S Payments to CITY. CONTRACTOR shall make 1478 payment to CITY of a negotiated franchise fee, and such other fees as may be specified in this 1479 Contract.

1480 .. . 7.17.8 Franchise Fee. The franchise fee for the fiscal year July 1, 2015, through 1481 June 30, 2016, shall be the initial franchise fee of Twenty-five Million Thirty-four Thousand 1482 Dollars ($25,034,000) adjusted by the annual change in the Consumer Price Index - All Urban 1483 Consumers, Series ID cuura422sa0, Not Seasonally adjusted, San Francisco-Oakland-San 1484 Jose, CA for the prior calendar year, January 1, 2014, through December 31, 2014. The 1485 franchise fee for the next fiscal year and each subsequent fiscal year shall be adjusted annually 1486 by the percentage change in the annual average of the Franchise Fee cost indicator (Series ID: 1487 cuura422sa0 Consumer Price Index, All urban Consumers, All Items, San Francisco-San Jose-1488 Oakland, CA) as set forth in Section 2 of Exhibit 2 to this Contract except that in no year shall 1489 the franchise fee adjustment be less than zero (0) percent. Notwithstanding the foregoing, no

Page 34



1490 adjustment shall be implemented for a particular fiscal year if CONTRACTOR'S Gross Receipts 1491 for the prior calendar year were less than the calendar year previous to that, but not including 1492 any calendar years prior to July 1, 2015. The franchise fee for each fiscal year shall be divided 1493 into twelve (12) equal payments, and paid monthly no later than the fifteenth (15th) day of each 1494 month for the preceding month except that the first franchise fee payment will be due no later 1495 than August 15, 2015.

1496 7.17.9 Proposal Development and Cost Reimbursement Fee. No later 1497 than thirty (30) calendar days after the execution of this Contract by CITY and CONTRACTOR, 1498 CONTRACTOR shall submit proposal development and cost reimbursement fee to CITY in the 1499 amount of Seven Hundred Fifty Thousand Dollars ($750,000). , . .

1500 7.17.10 Other Fees. CITY may set such other fees as it deems 1501 necessary. However, CONTRACTOR shall not be responsible for remitting such other fees to 1502 CITY until such time as the Maximum Service Rates as set forth in Exhibit 1 have been adjusted 1503 to include such other fees.

1504 7.17.11 Acceptance of Payment. No acceptance by CITY of any payment 1505 shall be construed as an accord that the amount is in-fact the correct amount, nor shall such 1506 acceptance of payment be construed as a release of any claim CITY may have against 1507 CONTRACTOR for any additional sums payable under the provisions of this Contract. All 1508 amounts paid shall be subject to independent audit and recalculation by CITY. If, after the 1509 audit, such recalculation indicates an underpayment CONTRACTOR shall pay to CITY the 1510 amount of the underpayment and shall reimburse CITY for all reasonable costs and expenses 1511 incurred in connection with the audit and recalculation within ten (10) Work Days of receipt of 1512 written notice from CITY that such is the case. If, after audit, such recompilation indicates an 1513 overpayment, CITY shall notify CONTRACTOR in writing of the amount of the overpayment, 1514 less costs and expenses incurred in connection with the audit and recalculation. 1515 CONTRACTOR may offset the amounts next due following receipt of such notice by the amount 1516 specified therein. , ^

1517 .. 7.18 Stability Funds. >.

1518 7.18.1 Recycling Stability Funds. Recycling stability funds represent the 1519 stabilization component of the SFD and MFD Maximum Per Dwelling Unit Recycling Rate, that 1520 may be included at the sole discretion of CITY, and to the extent included in the SFD and MFD 1521 Maximum Per Dwelling Unit Recycling Rate, are collected by CONTRACTOR for use in 1522 stabilizing recycling billing fluctuations or to make up for shortfalls experienced by 1523 CONTRACTOR, when required payments to the RR Contractor exceed the RR Contractor 1524 Component of the Maximum Per Dwelling Unit Recycling Rate funds collected over any 1525 calendar year. Recycling stability funds shall be maintained by CONTRACTOR in a separate 1526 interest bearing account, whose interest accrues to the account. Recycling stability funds may 1527 only be used at the direction of CITY.

1528 ^ 7.18.1.1 SFD Recycling stability funds are calculated by multiplying 1529 the stabilization component of the SFD Maximum Per Dwelling Unit Recycling Rate by the total 1530 number of SFD Dwelling Units associated with each of the invoices that were collected during 1531 each month.

1532 7.18.1.2 MFD Recycling stability funds are calculated by multiplying 1533 the stabilization component of the MFD Per Dwelling Unit Recycling Rate by the total number of 1534 MFD Dwelling Units associated with each of the invoices that were collected during each month.

City of Oakland \ ' ' Page 35

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1535 7.18.1.3 SFD and MFD Recycling stability fund account balances 1536 shall be reported to the Contract Manager no later than the tenth (10* ) day of each month 1537 beginning in August of 2015 and monthly thereafter during the term of this Contract.

1538

1539 7.19 Billing Records. CONTRACTOR shall keep records, electronically or paper, of all 1540 billing documents and Customer account records, including but not limited to, invoices, receipts, 1541 and collection notices, each in chronological order, for a period of three (3) years after the date 1542 of receipt or issuance.

1543 7.20 CITY Access to Customer Account and Service Information. Within a reasonable 1544 time after the commencement of the Collection Services, CONTRACTOR and CITY shall 1545 determine a means by which the following information shall be electronically provided to CITY 1546 via a live computer link or some other format acceptable to CITY: (i) all routing information from 1547 route audits to include name and address of Customer, Service Recipient and route number; (ii) 1548 records of daily Collection, Disposal, and Processing figures; (iii) names and addresses of 1549 Customers, Service Recipients and account classification (i.e., SFD, MFD, Commercial, Roll-Off 1550 Box), and service level (i.e., number and size of Containers, frequency of Collection); (iv) notes 1551 on location of Carts and Bins at Service Addresses; (v) record of missed pickups; and (vi) 1552 customer service log. Upon expiration or termination of this Contract, CITY shall have the 1553 immediate and permanent right to access and copy all such information contained in 1554 CONTRACTOR'S customer account and service information system relevant to this Contract.

1555 7.21 Collection Services Census Data. On or before July 15, 2016 and annually 1556 thereafter during the term of this Contract, CONTRACTOR shall deliver to CITY, Collection 1557 Services census data for all Service Addresses as of the preceding July 1. This information 1558 shall be delivered electronically in a format approved by CITY, using software approved by 1559 CITY.

1560 7.21.1 Census data for SFD Service Addresses shall consist of a list of SFD 1561 Service Recipients receiving, SFD Collection Services during the previous month and include at 1562 a minimum: (i) Service Recipient name and Service Address; (ii) name and address of 1563 Customer if different from Service Recipient and Service Address; and (iii) service level, 1564 separately for Mixed Materials and Organics (i.e., number and size of Containers, and 1565 frequency of Collection).

1566 7.21.2 Census data for MFD and Commercial Service Addresses shall consist of 1567 the number of Service Recipients receiving MFD or Commercial Collection Services during the 1568 preceding month. The census data shall be segregated by Customer type, and include at a 1569 minimum: (i) Service Recipient name and Service Address; (ii) name and address of Customer 1570 if different from Service Recipient and Service Address; and (iii) service level, separately for 1571 Mixed Materials and Organics (i.e., number and size of Containers, and frequency of 1572 Collection). ,

1573 ARTICLE 8. DIVERSION REQUIREMENTS 1574 8.01 Minimum Annual Diversion Reguirements. CONTRACTOR shall achieve 1575 minimum annual Diversion requirements beginning with Calendar year 2016 as set forth in Part 1576 1 of Table A of Exhibit 8 to this Contract, or such other Diversion requirements as may be set in 1577 accordance with the provisions of Article 30 of this Contract. Annual Diversion rates shall be 1578 calculated for each calendar year using Table B of Exhibit 8, and the methodology therein, 1579 beginning with calendar year 2016. > -

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1580 8.02 Failure to Meet Minimum Annual Diversion Reguirements. CONTRACTOR'S 1581 failure to meet the minimum annual Diversion requirement set forth in Part 1 of Table A of 1582 Exhibit 8 shall result in a diversion adjustment being applied to Maximum Service Rate 1583 adjustments as specified in Section 7.16.2.2 of this Contract.

1584 8.03 Minimum Diversion Requirement for Contract Extension. CONTRACTOR shall 1585 meet a minimum Diversion requirement of forty (40) percent in calendar year 2022, calculated 1586 as set forth in Section 8.01 of this Contract. Meeting the 2022 minimum Diversion requirement 1587 will be a significant factor in the CITY's decision, at its sole discretion, to offer the Contract 1588 extension set forth in Section 3.01.1 of this Contract or terminate this contract no later than 1589 June 30, 2025.

1590 8.04 Annual Diversion Reguirements for Contract Extension(s). By March 31, 2023, 1591 CONTRACTOR shall provide to CITY Part 2 of Table A of Exhibit 8 to this Contract by entering 1592 annual Diversion requirements for Contract Years ending June 30, 2026, June 30, 2027, 1593 June 30, 2028, June 30, 2029 and June 30, 3030. Should CONTRACTOR receive a Contract 1594 extension for such years as set forth in Article 3 of this Contract, the proposed annual Diversion 1595 requirements shall be incorporated into Exhibit 8 of the Contract extension.

1596 8.05 If the initial five (5)-year extension had been granted and CONTRACTOR seeks 1597 a second five (5)-year extension, by March 31, 2028, CONTRACTOR shall provide to CITY Part 1598 2 of Table A of Exhibit 8 to this Contract by entering annual Diversion requirements for Contract 1599 Years ending June 30, 2031, June 30, 2032, June 30, 2033, June 30, 2034, and June 30, 2035. 1600 Should CONTRACTOR receive a Contract extension(s) for such years as set forth in Article 3 of 1601 this Contract, the proposed annual Diversion requirements shall be incorporated into Exhibit 8 of 1602 the Contract extension

1603 8.06 CONTRACTOR shall use a statistically significant method approved by CITY to 1604 calculate the Tonnage of finished Processed material, net of Residue, attributable to material 1605 Collected under this Contract. CONTRACTOR shall use a statistically significant method 1606 approved by CITY to calculate the Tonnage of Residue attributable to material Collected under 1607 this Contract. Processed Mixed Materials, Organic Materials, and Recyclable Materials 1608 departing a Mixed Materials, Organic Materials, or Recyclable Materials Processing Facility 1609 (e.g., CONTRACTOR'S Davis Street facilities) for processes other than Disposal will be 1610 calculated as Diverted. , # , • .

1611 ARTICLE 9. SFD COLLECTION SERVICES 1612 9.01 SFD Collection Services. These services shall be governed by the following 1613 terms and conditions.

1614 9.01.1 Size and Freguencv of Service. CONTRACTOR shall offer Mixed 1615 Materials Carts in 20, 32, 64, and 96 gallon nominal Cart sizes, with the default Cart size being 1616 32 gallons. CONTRACTOR shall offer Organic Materials Carts in 20, 32, 64 and 96 gallon 1617 nominal Cart sizes, with the default Cart size being 64 gallons. The size of the Cart shall be 1618 selected by the SFD Customer. Service Recipients receiving Backyard Collection Service as set 1619 forth in Sections 9.01.4, 9.01.5 or 9.01.6 below may set out their Mixed Materials or Organic 1620 Materials in their own can. Except as set forth in Sections 9.04 through 9.08, SFD Collection 1621 Services shall be provided one (1) time per week on a scheduled route basis. SFD Collection 1622 Services shall be scheduled so that a SFD Service Address receives SFD Mixed Materials 1623 Collection Service and SFD Organic Materials Collection Service on the same Work Day.

City of Oakland ;< \ ; Page 37


1624 9.01.1.1 Overages. CONTRACTOR shall be required to Collect all 1625 Overages of Mixed Materials Carts that are set out for Collection regardless of whether the 1626 Overages are properly contained in bags affixed with an Extra Service Tag. CONTRACTOR 1627 may be compensated for the collection of such Overages if the Overages are not properly 1628 contained in bags affixed with an Extra Service Tag, and Contractor obtains and retains pictorial 1629 evidence of such Overages. Compensation shall be provided in accordance with the approved 1630 "Overage" surcharge set forth in Exhibit 1 or as may be adjusted under the terms of this 1631 Contract. V • . r :; , ^ • -

1632 9.01.1.2 Multiple Overages. In the case of repeated Overages of 1633 Mixed Materials Carts, CONTRACTOR may send written notification to the SFD Customer that 1634 includes dates of observed Overages, any previous notifications, photographic documentation 1635 of said Overages, and an offer to arrange for an appropriate change in Cart size and/or 1636 Collection frequency. Should Overages persist after three (3) notifications and CONTRACTOR 1637 is unable to reach an agreement with the SFD Customer regarding an appropriate change in 1638 Cart size and/or frequency of Collection, CONTRACTOR may impose such service level 1639 increase as is needed to avoid the Overages and notify the SFD Customer and Contract 1640 Manager in writing. The SFD Customer may petition CITY regarding any change in Cart size 1641 and/or Collection frequency. Should three (3) months elapse with no Overage recurrence taking 1642 place following the change in service, the Overage problem shall be considered resolved.

1643 ' 9.01.2 Manner of Collection. CONTRACTOR shall provide SFD Collection 1644 Services with as little disturbance as possible. Except in the case of backyard Collection 1645 Services CONTRACTOR shall leave any Cart in an upright position, with the lid closed, at the 1646 point of collection without obstructing alleys, roadways, driveways, sidewalks or mail boxes. In 1647 the case of Backyard Collection Service, CONTRACTOR shall remove the Containers from the 1648 back or side of the Service Address (or from such other location as agreed to by 1649 CONTRACTOR and the Service Recipient), shall empty the contents into the collection vehicle, 1650 and shall return the Containers to the location from which they were removed. CONTRACTOR 1651 will not be responsible for Carts or Bins being moved or open due to weather conditions or other 1652 factors beyond its control, such as scavengers.

1653 9.01.3 Curbside Collection Service. SFD Curbside Collection Service shall be 1654 provided where Mixed Materials and Organic Materials are placed within three (3) feet of the 1655 curb, or at edge of street pavement for streets without curbs.

1656 ' * 9.01.4 Premium Backyard Collection Service. CONTRACTOR shall provide 1657 premium backyard Collection of Mixed Materials and Organic Materials to a SFD Service 1658 Address if requested by the SFD Customer for their convenience. CONTRACTOR shall be 1659 compensated for such services at the approved Maximum Service Rates provided in Exhibit 1 1660 for premium backyard Collection Service.

1661 9.01.5 Exempt Backyard Collection Service. Notwithstanding any term or 1662 definition set forth in this Contract, CONTRACTOR shall provide exempt backyard Collection of 1663 Mixed Materials, and Organic Materials to SFD Service Addresses whose occupants meet the 1664 requirements for the exemption programs set forth below in Sections 9.01.6 through 9.01.8 and, 1665 based on information provided by CITY to CONTRACTOR, those Service Addresses receiving 1666 such service from the prior Collection Contractor. CONTRACTOR shall provide exempt 1667 backyard Collection of Mixed Materials, and Organic Materials to SFD Service Addresses at no 1668 additional charge to CITY or SFD Customer.

1669 9.01.6 Frail Senior Exemption Program. CONTRACTOR shall provide exempt 1670 backyard Collection of Mixed Materials and Organic Materials to SFD Service Addresses whose

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1671 occupants demonstrate that they meet the requirements set forth in this Section 9.01.6 through 1672 the submission of a complete application requesting this exemption along with all required 1673 documentation and certifications. Services shall begin on the next regularly scheduled 1674 Collection day of the Service Address after CONTRACTOR'S receipt of the completed 1675 application. No additional monies shall be due to CONTRACTOR for the exempt backyard 1676 Collection of Mixed Materials, and Organic Materials.

1677 9.01.6.1 Applicant must be sixty (60) years of age or older.

1678 , 5, 9.01.6.2 Applicant must be the owner of record or primary renter.

1679 9.01.6.3 The Dwelling Unit must be solely occupied by the 1680 applicant, unless all other occupants meet the requirements of frail senior exemption program 1681 as set forth in this Section 9.01.6, the disability exemption program as set forth in Section 1682 9.01.7, or are under the age of twelve (12) years old , . „ ,

1683 9.01.6.4 Applicant must provide a signed statement from a 1684 registered Doctor of Medicine (M.D.) stating that bringing the wheeled Containers to curbside 1685 creates an undue physical hardship on the applicant.

1686 9.01.7 Disability Exemption Program. CONTRACTOR shall provide exempt 1687 backyard Collection of Mixed Materials, and Organic Materials to SFD Service Addresses 1688 whose occupants demonstrate that they meet the requirements set forth in this Section 9.01.7 1689 through the submission of a complete application requesting this exemption along with all 1690 required documentation and certifications. Services shall begin on the next regularly scheduled 1691 Collection day of the Service Address after CONTRACTOR'S receipt of the completed 1692 application. No additional monies shall be due to CONTRACTOR for the exempt backyard 1693 Collection of Mixed Materials, and Organic Materials.

1694 9.01.7.1 Applicant must be the owner of record or primary renter.

1695 9.01.7.2 The Dwelling Unit must be solely occupied by the 1696 applicant, unless all other occupants meet the requirements of frail senior exemption program 1697 as set forth in Section 9.01.6, the disability exemption program as set forth in this Section 1698 9.01.7, or are under the age of twelve (12) years old. , ,

1699 9.01.7.3 Applicant must provide proof that is acceptable to 1700 CONTRACTOR of long term or permanent physical disability, which may include; 1) a signed 1701 statement from a registered Doctor of Medicine (M.D.); 2) proof or registration as a disabled 1702 driver as determined by the Department of Motor Vehicles; or 3) documentation of grant of 1703 permanent disability status by the State of California.

1704 9.01.8 Curbside Placement Exemption. CONTRACTOR may petition CITY for 1705 exempt backyard Collection of Mixed Materials and Organic Materials from SFD Service 1706 Recipients other than as required by Sections 9.01.6 and 9.01.7

1707 9.01.9 Collection Day. CONTRACTOR shall provide exempt backyard 1708 Collection of Mixed Materials and Organic Materials on the same Work Day that curbside 1709 Collection Service would otherwise be provided to the Service Address.

1710 9.02 SFD Mixed Materials Collection Service. This service will be governed by the 1711 following additional terms and conditions:

1712 9.02.1 Containerized Mixed Materials. CONTRACTOR shall provide SFD Mixed 1713 Materials Collection Service to all SFD Service Addresses in the Service Area whose Mixed 1714 Materials are properly containerized in Mixed Materials Containers, except as set forth in

City of Oakland . ' Page 39


1715 Section 9.02.2 below, regardless of whether or not the lid is fully closed, where the Containers 1716 have been placed within three (3) feet of the curb, paved surface of the public roadway, closest 1717 accessible roadway, or other such location agreed to by CONTRACTOR and Service Recipient 1718 which will provide safe and efficient accessibility to CONTRACTOR'S Collection crew and 1719 vehicle.

1720 9.02.2 Disposal Facility or Mixed Materials Processing Facility. All Mixed 1721 Materials Collected as a result of performing SFD Mixed Materials Collection Services shall be 1722 transported and delivered to the Disposal Facility or Mixed Materials Processing Facility.

1723 9.02.3 Residue From Mixed Materials Processing. An amount of Residue equal 1724 to the Residue generated as a result of Processing the Mixed Material Collected during the 1725 performance of SFD Mixed Materials Collection Services under the terms of this Contract shall 1726 be delivered to the Disposal Facility.

1727 9.02.4 Additional Mixed Materials Capacity. Upon notification to CONTRACTOR 1728 by CITY or a SFD Customer that additional Mixed Materials capacity is requested, 1729 CONTRACTOR shall deliver such Mixed Materials Carts as are needed to meet the capacity 1730 requirements of the Service Address by the next regularly scheduled Collection day or within six 1731 (6) Work Days (whichever is later). CONTRACTOR may be compensated for the cost of 1732 providing additional Mixed Material capacity in accordance with the approved Maximum Service 1733 Rate as provided in Exhibit 1 or as may be adjusted under the terms of this Contract.

1734 9.03 SFD Organic Materials Collection Service. This service will be governed by the 1735 following additional terms and conditions.

1736 9.03.1 Containerized Organic Materials. CONTRACTOR shall provide SFD 1737 Organic Materials Collection Service to all SFD Service Addresses in the Service Area whose 1738 Organic Materials, except as set forth in Sections 9.03.2, 9.04 and 9.05, are properly 1739 containerized in Organic Materials Containers, regardless of whether or not the lid is fully closed 1740 where the Containers have been placed within three (3) feet of the curb, paved surface of the 1741 public roadway, closest accessible roadway, or other such location agreed to by 1742 CONTRACTOR and Service Recipient, that will provide safe and efficient accessibility to 1743 CONTRACTOR'S Collection crew and vehicle. .

1744 9.03.2 Organic Materials in Excess of Container Capacity. SFD Service 1745 Recipients may set out unlimited additional Organic Materials each week in recyclable 32-gallon 1746 paper gardening bags, in bundles, or in Service Recipient's container, provided it meets the 1747 requirements of Oakland Municipal Code Section 8.28.140. No bag, bundle or container may 1748 exceed seventy five (75) pounds in weight. Branches and unpainted/untreated wood may not 1749 exceed four (4) feet in length or six (6) inches in diameter, CONTRACTOR may limit the 1750 amount of Organic Materials to be Collected from a SFD Service Address to sixty four (64) 1751 gallons per week if it is able to show to the satisfaction of CITY that the Service Recipient is 1752 setting out Organic Materials generated from a location other than the Service Address.

1753 9.03.2.1.1. In the event excess Organic Materials are set out in 1754 a plastic bag, CONTRACTOR may Collect the Organics as Mixed Materials Overage and 1755 invoice the SFD Customer at the Mixed Materials Overage Maximum Service Rate as set forth 1756 in Exhibit 1 to this Contract. K ,

1757 9.03.2.1.2. CONTRACTOR shall not be required to Collect 1758 excess Organic Materials that are not set out in compliance with Section 9.03.2. In the event of 1759 non-collection CONTRACTOR shall deliver a Non-Collection Notice to the Service Address,

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1760 which explains why Collection was not made and how the item(s) may be properly set out, and 1761 shall maintain a copy of such notice during the term of this Contract.

1762 9.03.3 Organic Materials Processing Services. Except for Organic Materials 1763 Residue, or as otherwise provided in this Contract, CONTRACTOR shall ensure that all Organic 1764 Materials Collected pursuant to this Contract are Diverted .

1765 9.03.4 Organic Materials Processing Facility. CONTRACTOR shall deliver all 1766 Collected Organic Materials to a fully permitted Organic Materials Processing Facility or a 1767 properly permitted transfer station. All expenses related to Organic Materials Processing and 1768 marketing will be the sole responsibility of CONTRACTOR.

1769 9.03.5 Additional Organic Materials Capacity. Upon notification to 1770 CONTRACTOR by CITY or a SFD Customer that additional Organic Materials Cart capacity is 1771 requested in the form of a larger Cart or an additional Cart, CONTRACTOR shall deliver such 1772 Organic Materials Carts as are needed to meet the capacity requirements of the Service 1773 Address by the next regularly scheduled Collection day or within six (6) Work Days (whichever 1774 is later). CONTRACTOR shall not receive additional compensation for the Collection of a larger 1775 Organic Materials Cart. However CONTRACTOR may be compensated for the Collection of 1776 more than one (1) Organic Materials Cart in accordance with the approved Maximum Service 1777 Rate as provided in Exhibit 1 or as may be adjusted under the terms of this Contract.

1778 9.03.6 Reduction or Discontinuation of Service. CONTRACTOR shall retain the 1779 right to reduce capacity or discontinue provision of Organic Materials Collection Service to SFD 1780 Customers under the following circumstances:

1781 9.03.6.1 The Organic Materials Cart is found to be contaminated 1782 through the inclusion of more than ten (10) percent of materials that are not Organic Materials 1783 as defined herein more than four (4) times in any twelve (12) month period. Upon a finding a 1784 fourth instance of such contamination in any twelve (1) month period, CONTRACTOR shall 1785 notify the SFD Customer in writing that an additional violation of the contamination requirements 1786 of the program will result in the discontinuation of service.

1787 9.04 Curbside Holiday Tree Collection. CONTRACTOR shall Collect Holiday Trees 1788 from all SFD Service Addresses as part of the SFD Organic Materials Collection Service when 1789 such trees are in lengths of four (4) feet or less and are set out at the curb. CONTRACTOR 1790 shall provide this service beginning on the first Work Day after December 25* through the end 1791 of the second full work week in January or dates approved by CITY.

1792 9.04.1 Contaminated Holiday Trees. Holiday trees that are flocked or contain 1793 tinsel or other decorations or are attached to a tree stand may be delivered to the Disposal 1794 Facility at the discretion of CONTRACTOR.

1795 9.05 Bulky Goods Collection Service. This service will be governed by the terms and 1796 conditions set forth in Exhibit 14 and such changes to that Exhibit as may be agreed to between 1797 CITY and CONTRACTOR.

1798 * 9.05.1 Annual Changes to Bulky Goods Collection Service Reguirements. 1799 Beginning with Bulky Goods Collection Service for Contract Year July 1, 2016, through June 30, 1800 2017 and annually thereafter during the term of this Contract, CITY and CONTRACTOR may 1801 mutually agree to changes in the Bulky Goods Collection Service program. Such mutually 1802 agreed to changes shall be documented through the revision of Exhibit 14 to this Contract and 1803 the revised Exhibit 14 shall be signed by authorized representatives of CITY and 1804 CONTRACTOR.

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1805 9.06 Temporary Roll-Off Box Collection Service. CONTRACTOR shall provide 1806 Temporary Roll-Off Collection Service to all SFD Customers in the Service Area subscribing to 1807 such service. CONTRACTOR shall respond to requests for service within two (2) Work Days of 1808 receipt of the request. CONTRACTOR shall be compensated for such services in accordance 1809 with the Maximum Service Rates as set forth in Exhibit 1 to this Contract as may be adjusted in 1810 accordance with the terms of this Contract.

1811 ARTICLE 10. MFD COLLECTION SERVICES 1812 10.01 MFD Collection Services. These services shall be governed by the following 1813 terms and conditions.

1814 10.01.1 Manner of Collection. CONTRACTOR shall provide MFD 1815 Collection Service with as little disturbance as possible and shall leave any Container in an 1816 upright position, with the lid closed, at the same point it was Collected without obstructing alleys, 1817 roadways, driveways, sidewalks or mail boxes. CONTRACTOR shall close or lock, as 1818 appropriate. Containers and Container enclosures that were opened by CONTRACTOR as part 1819 of the Collection process. CONTRACTOR will not be responsible for Carts or Bins being moved 1820 or open due to weather conditions or other factors beyond its control, such as scavengers.

1821 10.01.2 Collection Location. The default MFD Collection location shall be 1822 designated areas within the property confines, and in compliance with any applicable City codes 1823 and ordinances, unless with consent of the building owner/manager Collection may be from an 1824 alternate location, including at the curb.

1825 10.01.3 Accessibility. CONTRACTOR shall Collect all Mixed Materials 1826 and Organic Materials Containers that are readily accessible to CONTRACTOR'S crew and 1827 vehicles and not blocked. However, CONTRACTOR shall provide "push services" and "key 1828 services" as necessary during the provision of MFD Collection Services. Push services shall 1829 include, but not be limited to, dismounting from the Collection vehicle, moving the Bins or Carts 1830 from their storage location for Collection and returning the Bins or Carts to their storage location. 1831 Push services may include unlocking and relocking the Bin or enclosure Key services shall 1832 include the provision of a master lock and key by CONTRACTOR to the Service Address for the 1833 convenience of CONTRACTOR. CONTRACTOR shall be compensated for providing "push 1834 services" and or "key services" in accordance with the approved Maximum Service Rates as 1835 provided in Exhibit 1 or as may be adjusted in accordance with the terms of this Contract.

1836 10.01.4 Difficult to Serve. If CONTRACTOR determines that the set-out 1837 location for Carts or Bins is Difficult to Serve, CONTRACTOR shall contact the MFD Customer 1838 to discuss a change in the set out location. In the event a new set out location is not agreed to 1839 between the CONTRACTOR and MFD Customer, then CONTRACTOR shall be compensated 1840 for providing Difficult to Serve Collection Services in accordance with the approved Maximum 1841 Service Rates as provided in Exhibit 1 or as may be adjusted in accordance with the terms of 1842 this Contract.

1843 10.02 MFD Mixed Materials Collection Service.

1844 10.02.1 Containerized Mixed Materials. CONTRACTOR shall provide 1845 MFD Mixed Materials Collection Service to all MFD Service Addresses in the Service Area 1846 where the Mixed Materials are properly containerized in Mixed Materials Carts or Bins, except 1847 as set forth in Sections 10.02.5 or 10.04 regardless of whether or not the lid is fully closed.

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1848 10.02.2 Service Freguencv. CONTRACTOR shall provide MFD Mixed 1849 Materials Collection Service at least weekly. However, in those instances where the scheduled 1850 Collection day falls on a holiday as set forth in Section 6.11 herein, the Collection day may be 1851 adjusted in a manner agreed to between the MFD Service Recipient and CONTRACTOR as 1852 long as service is received a minimum of one (1) time per week.

1853 10.02.2.1 CONTRACTOR shall respond to requests for service 1854 utilizing Roll-Off Boxes within two (2) Work Days of the request from the MFD Customer.

1855 10.02.3 Container Sizes. CONTRACTOR shall offer Mixed Materials 1856 Containers in 20, 32, 64 and 96 gallon nominal Cart sizes and in 1, 1.5, 2, 3, 4, 6 and cubic yard 1857 Bins. CONTRACTOR shall offer Roll-Off Boxes in 6, 10, 20, 30, and 40 cubic yard sizes with 1858 lids.

1859 10.02.4 Minimum Capacity. CONTRACTOR shall provide Mixed Materials 1860 Container sizes and with Collection frequencies such that the total weekly capacity of Mixed 1861 Materials Collection Service is equal to the number of Dwelling Units in the MFD multiplied by 1862 twenty (20) gallons. The size and number of the Container(s) and the frequency (above the 1863 minimum) of Collection shall be determined by the MFD Customer. However, the size and 1864 frequency shall be sufficient to meet the minimum capacity set forth in this Section 10.02.4 and 1865 to provide that no Mixed Materials need be placed outside the appropriate Container on a 1866 regular basis. . - .

1867 10.02.4.1 For purposes of calculating minimum capacity in cubic 1868 yards under Section 10.02.4, the minimum gallons (calculated by multiplying the number of 1869 Dwelling Units in the MFD times twenty (20) gallons) shall be divided by two hundred (200) and 1870 the result calculated to the first decimal place. In those instances where the result does not 1871 equal a specific Container size offered by CONTRACTOR, the results shall be rounded to the 1872 nearest Container size, in accordance with the examples set forth below.

1873 10.02.4.2 For example, if a MFD is composed of twelve (12) Dwelling 1874 Units then the minimum capacity would be calculated as two hundred forty (240) gallons, (12 1875 Dwelling Units x 20 gallons per Dwelling Unit), which is equivalent to 1.2 cubic yards (240 1876 gallons /200 gallons per cubic yard = 1.2 cubic yards), and rounded down to 1 cubic yard.

1877 10.02.4.3 For example, if a MFD is composed of fifteen (15) Dwelling 1878 Units then the minimum capacity would be calculated as three hundred (300) gallons, (15 1879 Dwelling Units x 20 gallons per Dwelling Unit) which is equivalent to 1.5 cubic yard (300 gallons 1880 /200 gallons per cubic yard = 1.5 cubic yards). Since CONTRACTOR offers a 1.5 cubic yard Bin 1881 rounding is not necessary. .

1882 10.02.4.4 For example, if a MFD is composed of twenty five (25) 1883 Dwelling Units then the minimum capacity would be calculated as five hundred (500) gallons, 1884 (25 Dwelling Units x 20 gallons per Dwelling Unit) which is equivalent to 2.5 cubic yard (500 1885 gallons /200 gallons per cubic yard = 2.5 cubic yards), rounded up to 3 cubic yards.

1886 10.02.5 Collection of Mixed Materials Overage. CONTRACTOR shall be 1887 required to Collect all Mixed Materials Overage that are set out for Collection regardless of 1888 whether or not the Mixed Materials Overages are properly contained in a bag affixed with an 1889 Extra Service Tag. CONTRACTOR shall not be entitled to additional compensation for the 1890 Collection Mixed Materials Overages unless such Overages are not contained in bags with 1891 affixed Extra Service Tags in which case CONTRACTOR shall obtain and retain pictorial 1892 evidence of such Overages and may be compensated for the Collection of such Overages in

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1893 accordance with the approved "Overage" surcharge as provided in Exhibit 1 or as may be 1894 adjusted under the terms of this Contract.

1895 10.02.6 Multiple Overages. In the case of repeated Overages of Mixed 1896 Materials CONTRACTOR may send written notification to the MFD Customer that includes 1897 dates of observed Overages, any previous notifications, photographic documentation of said 1898 Overages, and an offer to arrange for an appropriate change in Bin or Cart size, and /or 1899 Collection frequency. Should Overages persist after three (3) notifications and CONTRACTOR 1900 is unable to reach an agreement with the MFD Customer regarding an appropriate change in 1901 Bin or Cart size and/or frequency of Collection, CONTRACTOR may impose such service level 1902 increase as is needed to avoid the Overages and notify the MFD Customer and Contract 1903 Manager in writing. The MFD Customer may petition CITY regarding any change in Bin or Cart 1904 size and/or Collection frequency. Should three (3) months elapse with no Overage recurrence 1905 taking place following the change in service the Overage problem shall be considered resolved.

1906 10.02.7 Additional Mixed Materials Capacity. Upon notification to 1907 CONTRACTOR by CITY or a MFD Customer that additional Mixed Materials capacity is 1908 requested, CONTRACTOR shall deliver such Mixed Materials Containers as are needed to 1909 meet the capacity requirements of the Service Address by the next regularly scheduled 1910 Collection day or within six (6) Work Days (whichever is later). CONTRACTOR may be 1911 compensated for the cost of providing additional Mixed Materials capacity in accordance with 1912 the approved Maximum Service Rates as provided in Exhibit 1 or as may be adjusted under the 1913 terms of this Contract. . , : • ; < * • ,i

1914 10.02.8 Mixed Materials Processing Facility. All Mixed Materials Collected 1915 as a result of performing MFD Mixed Material Collection Service shall be delivered to the Mixed 1916 Materials Processing Facility.

1917 10.02.9 Residue from Mixed Materials Processing. An amount of Residue 1918 equal to the Residue generated as a result of Processing the Mixed Material Collected during 1919 the performance of MFD Mixed Materials Collection Service under the terms of this Contract 1920 shall be delivered to the Disposal Facility.

1921 10.03 MFD Organic Materials Collection Service. This service will be governed by the 1922 following terms and conditions: [this may change depending on final Council decision]

1923 10.03.1 Containerized Organic Materials. CONTRACTOR shall provide 1924 MFD Organic Materials Collection Service to all MFD Customers in the Service Area who 1925 request such service and whose Organic Materials are properly containerized in Organic 1926 Materials Carts or Bins, except as set forth in Sections 10.03.5 and 10.04, regardless of whether 1927 the lids are closed CONTRACTOR shall provide all MFD Customers requesting this service with 1928 a written copy of the provisions of Section 10.03.7 regarding discontinuance of service.

1929 10.03.2 Service Freguencv. CONTRACTOR shall provide MFD Organic 1930 Materials Collection Service one (1) time per week. However, in those instances where the 1931 scheduled Collection day falls on a holiday as set forth in Section 6.11 herein, the Collection day 1932 may be adjusted in a manner agreed to between the Service Recipient and CONTRACTOR as 1933 long as service is received a minimum of one (1) time per week.

1934 10.03.3 Container Sizes. Except as set forth in Section 10.03.6 1935 CONTRACTOR shall offer Organic Materials Containers in 32, and 64 gallon nominal Cart 1936 sizes.

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: Mixed Materials and Organics Collection Services Contract 9/19/14

1937 10.03.4 Minimum Capacity. At a minimum, CONTRACTOR shall provide 1938 one (1) 32 gallon Organic Materials Cart to any MFD of twelve (12) or fewer Dwelling Units, and 1939 one (1) 64 gallon Organic Materials Cart to any MFD of thirteen or (13) more Dwelling Units.

1940 10.03.5 Collection of Organic Materials Overages. CONTRACTOR shall 1941 be required to Collect all Organic Materials that are set out for Collection regardless of whether 1942 or not the Organic Materials are contained in an Organic Materials Cart. CONTRACTOR shall 1943 be entitled to additional compensation for the Collection of Organic Materials Overages in 1944 accordance with the approved "Overage" surcharge as provided in Exhibit 1 or as may be 1945 adjusted under the terms of this Contract. r

1946 10.03.6 Additional Organic Materials Capacity. Upon notification to 1947 CONTRACTOR by CITY or a Customer that additional Organic Materials capacity is requested, 1948 CONTRACTOR shall deliver such Organic Materials Containers as are needed to meet the 1949 capacity requirements of the Service Address by the next regularly scheduled Collection day or 1950 within six (6) Work Days (whichever is later). CONTRACTOR must provide additional Container 1951 capacity if requested by the MFD Customer.

1952 10.03.7 Reduction or Discontinuation of Service. CONTRACTOR shall 1953 retain the right to reduce capacity or discontinue provision of Organic Materials Collection 1954 Service to Service Addresses under the following circumstances.

1955 ' ' 10.03.7.1 The Organics Cart is found to be contaminated through the 1956 inclusion of more than ten (10) percent of materials that are not Organic Materials as defined 1957 herein more than four (4 ) times in any twelve (12) month period. Upon finding a fourth instance 1958 of such contamination in any twelve (12) month period CONTRACTOR shall notify the MFD 1959 Customer in writing that an additional violation of the contamination requirements of the 1960 program will result in the discontinuance of service.

1961 10.03.8 Organic Materials Processing Facility. CONTRACTOR shall 1962 deliver all Collected Organic Materials to a fully permitted Organic Materials Processing Facility. 1963 All expenses related to Organic Materials Processing and marketing will be the sole 1964 responsibility of CONTRACTOR. "'

1965 10.03.9 Organic Materials Processing Services. Except for Organic 1966 Materials Residue or as otherwise provided in Section 30 of this Contract, CONTRACTOR shall 1967 ensure that all Organic Materials Collected pursuant to this Contract are Diverted.

1968 10.04 Holiday Tree Collection. CONTRACTOR shall Collect Holiday Trees from all 1969 MFD Customers in the manner set forth in Exhibit 10 to this Contract. CONTRACTOR shall 1970 provide this service beginning on the first Work Day after December 25* through the end of the 1971 second full work week in January or dates approved by CITY.

1972 10.04.1 Contaminated Holiday Trees. Holiday trees that are flocked or 1973 contain tinsel or other decorations or are attached to a tree stand may be delivered to the 1974 Disposal Facility at the discretion of CONTRACTOR.

1975 10.05 Bulky Goods Collection Service. This service will be governed by the terms and 1976 conditions set forth in Exhibit 14 and such changes to that Exhibit as may be agreed to between 1977 CITY and CONTRACTOR.

1978 10.05.1 Annual Changes to Bulky Goods Collection Service 1979 Reguirements. Beginning with Contract Year July 1, 2016, through June 30, 2017 and annually 1980 thereafter during the term of this Contract, CITY and CONTRACTOR may mutually agree to 1981 changes in the Bulky Goods Collection Service program. Such mutually agreed to changes

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. Mixed Materials and Organics Collection Services Contract 9/19/14

1982 shall be documented through the revision of Exhibit 14 to this Contract and the revised Exhibit 1983 14 shall be signed by authorized representatives of CITY and CONTRACTOR.

1984 10.06 Temporary Roll-Off Box Collection Service. CONTRACTOR shall provide 1985 Temporary Roll-Off Collection Service to all MFD Customers in the Service Area subscribing to 1986 such service. CONTRACTOR shall respond to requests for service within two (2) Work Days of 1987 receipt of the request. CONTRACTOR shall be compensated for such services in accordance 1988 with the Maximum Service Rates as set forth in Exhibit 1 to this Contractor as may be adjusted 1989 in accordance with the terms of this Contract.

1990 ' ARTICLE 11. COMMERCIAL COLLECTION SERVICES 1991 : i 11.01 Commercial Collection Services. These services will be governed by the 1992 following terms and conditions.

1993 11.01.1 Size and Freguencv of Service. CONTRACTOR shall offer Mixed 1994 Organic Materials Carts in Materials Carts in 20, 32, 64 and 96 gallon nominal Cart sizes, and 1995 Recyclable Materials and 32, 64 or 96 gallon nominal Cart sizes. CONTRACTOR shall offer 1996 Mixed Materials, Recyclable Materials, and Organic Materials Bins in 1, 1.5 2, 3, 4, 6 and 7 1997 cubic yard sizes. CONTRACTOR shall offer Mixed Materials, Recyclable Materials, and 1998 Organic Materials Roll-Off Boxes in 6, 10, 20, 30, and 40 cubic yard sizes with lids. However, in 1999 those instances where the scheduled Collection day falls on a holiday as set forth in Section 2000 6.11 herein, the Collection day may be adjusted in a manner agreed to between the Commercial 2001 Customer and CONTRACTOR as long as service is received a minimum of one (1) time per 2002 week. The size of the Container and the frequency (above the minimum) of Collection shall be 2003 determined between the Commercial Customer and CONTRACTOR. However, size and 2004 frequency shall be sufficient to provide that no Mixed Materials, Recyclable Materials, or 2005 Organic Materials need be placed outside the Container on a regular basis. CONTRACTOR 2006 shall respond to requests for services utilizing Roll-Off Boxes within two (2) Work Days of the 2007 request from the Commercial Customer. Commercial Customers may use a Compactor they 2008 own or lease provided that the Customer is completely responsible for its proper maintenance 2009 and that such Compactor shall be of a type that can be serviced by CONTRACTOR'S 2010 equipment.

2011 * 11.01.2 Manner of Collection. CONTRACTOR shall provide Commercial 2012 Collection Services with as little disturbance as possible and shall leave any Container in an 2013 upright position, with the lid closed, at the same point it was Collected without obstructing alleys, 2014 roadways, driveways, sidewalks or mail boxes. CONTRACTOR shall close or lock, as 2015 appropriate. Containers and Container enclosures that were opened by CONTRACTOR as part 2016 of the Collection process. CONTRACTOR will not be responsible for Carts or Bins being moved 2017 or open due to weather conditions or other factors beyond its control, such as scavengers

2018 11.01.3 Accessibility. CONTRACTOR shall Collect all Mixed Materials 2019 and Organic Materials Containers that are readily accessible to CONTRACTOR'S crew and 2020 vehicles and not blocked. However, CONTRACTOR shall provide "push services" and "key 2021 services" as necessary during the provision of Commercial Collection Services. Push services 2022 shall include, but not be limited to, dismounting from the Collection vehicle, moving the Bins or 2023 Carts from their storage location for Collection and returning the Bins or Carts to their storage 2024 location. Push services may include unlocking and relocking the Bin or enclosure Key services 2025 shall include the provision of a master lock and key by CONTRACTOR to the Service address 2026 for the convenience of CONTRACTOR. CONTRACTOR shall be compensated for providing

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2027 "push services" and or "key services" in accordance with the approved Maximum Service Rates 2028 as provided in Exhibit 1 or as may be adjusted in accordance with the terms of this Contract.

2029 11.01.4 Difficult to Serve. If CONTRACTOR determines that the set-out 2030 location for Carts or Bins is Difficult to Serve, CONTRACTOR shall contact the Commercial 2031 Customer to discuss a change in the set out location. In the event a new set out location is not 2032 agreed to between the CONTRACTOR and Commercial Customer, then CONTRACTOR shall 2033 be compensated for providing Difficult to Serve Collection Services in accordance with the 2034 approved Maximum Service Rates as provided in Exhibit 1 or as may be adjusted in accordance 2035 with the terms of this Contract.

2036 11.01.5 Multiple Overages. In the case of repeated Overages of Mixed 2037 Materials, Recyclable Materials, or Organic Materials, CONTRACTOR may send written 2038 notification to the Commercial Customer that includes dates of observed Overages, any 2039 previous notifications, photographic documentation of said Overages, and an offer to arrange for 2040 an appropriate change in Bin or Cart size, and/or Collection frequency. Should Overages persist 2041 after three (3) notifications and CONTRACTOR is unable to reach an agreement with the 2042 Commercial Customer regarding an appropriate change in Bin or Cart size and/or frequency of 2043 Collection, CONTRACTOR may impose such service level increase as is needed to avoid the 2044 Overages and notify the Commercial Customer and Contract Manager in writing. The 2045 Commercial Customer may petition CITY regarding any change in Bin or Cart size and/or 2046 Collection frequency. Should three (3) months elapse with no Overage recurrence taking place 2047 following the change in service the Overage problem shall be considered resolved.

2048 11.02 Commercial Mixed Materials Collection Service. This service will be governed by 2049 the following additional terms and conditions.

2050 11.02.1 Containerized Mixed Materials. CONTRACTOR shall provide 2051 Commercial Mixed Materials Collection Service to all Commercial Service Addresses in the 2052 Service Area where Mixed Materials are properly Containerized in Mixed Materials Containers, 2053 regardless of whether the lid is fully closed where the Containers are accessible as set forth in 2054 Section 11.01.3 above.

2055 11.02.2 Collection of Mixed Materials Overage. CONTRACTOR shall also 2056 be required to Collect all Mixed Materials Overages that are set out for Collection regardless of 2057 whether or not the Mixed Materials Overages are properly contained in a Container. 2058 CONTRACTOR shall obtain and retain pictorial evidence of such Overages and may be 2059 compensated for the Collection of such Overages in accordance with the approved "Overage" 2060 Maximum Service Rate as provided in Exhibit 1 or as may be adjusted under the terms of this 2061 Contract. *

2062 11.02.3 Disposal and Mixed Materials Processing Facilities. All Mixed 2063 Materials Collected as a result of performing Commercial Mixed Materials Collection Services 2064 shall be transported and delivered to the Disposal Facility or the Mixed Materials Processing 2065 Facility.

2066 11.02.4 Residue From Mixed Materials Processing. An amount of 2067 Residue equal to the Residue generated as a result of Processing the Mixed Materials Collected 2068 during the performance of Commercial Mixed Materials Collection Services under the terms of 2069 this Contract shall be delivered to the Disposal Facility.

2070 11.03 Additional Mixed Materials Capacity. Upon notification to CONTRACTOR by 2071 CITY or a Commercial Customer that additional Mixed Materials capacity is requested, 2072 CONTRACTOR shall deliver such Mixed Materials Containers as are needed to meet the


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' Mixed Materials and Organics Collection Services Contract 9/19/14

2073 capacity requirements of the Service Address by the next regularly scheduled Collection Day, or 2074 within six (6) Work Days (whichever is later). CONTRACTOR may be compensated for the cost 2075 of providing additional Mixed Materials capacity in accordance with the approved "Mixed 2076 Materials Collection" Maximum Service Rates provided in Exhibit 1 or as may be adjusted under 2077 the terms of this Contract. .

2078 11.04 Commercial Organic Materials Subscription Collection Service. This service will 2079 be governed by the following terms and conditions.

2080 11.04.1 Containerized Organic Materials. CONTRACTOR shall provide 2081 Commercial Organic Materials Subscription Collection Service to all Commercial Customers in 2082 the Service Area that subscribe to such service and whose Organic Materials are properly 2083 containerized in Organic Materials Carts or Bins, regardless of whether the lids are closed, 2084 where the Organic Materials Containers are accessible as set forth in Section 11.01.3. 2085 CONTRACTOR may be compensated for Commercial Organic Materials Collection Service in 2086 accordance with the approved "Commercial Organic Materials Collection" Maximum Service 2087 Rates as provided in Exhibit 1.

2088 11.04.2 Collection of Organic Materials Overages. CONTRACTOR shall 2089 be required to Collect all Organic Materials that are set out for Collection regardless of whether 2090 or not the Organic Materials are properly contained in a Container. CONTRACTOR shall obtain 2091 and retain pictorial evidence of such Overages and may be compensated for the Collection of 2092 such Overages in accordance with the approved "Overage" Maximum Service Rate as provided 2093 in Exhibit 1 or as may be adjusted under the terms of this Contract.

2094 11.04.3 Organic Materials Processing Facility. All Organic Materials 2095 Collected as a result of performing Commercial Organics Material Subscription Collection 2096 Services shall be delivered to the Organic Materials Processing Facility. All expenses related to 2097 Organic Materials Processing and marketing will be the sole responsibility of CONTRACTOR.

2098 11.04.4 Additional Organic Materials Capacity. Upon notification to 2099 CONTRACTOR by CITY or a Commercial Customer that additional Organic Materials Capacity 2100 is requested, CONTRACTOR shall deliver such Organic Materials Containers as are needed to 2101 meet the capacity requirements of the Service Address by the next regularly scheduled 2102 Collection day, or within six (6) Work Days (whichever is later). CONTRACTOR shall be 2103 compensated for the cost of providing additional Organic Materials Containers in accordance 2104 with the approved "Commercial Organic Materials Collection" Maximum Service Rate provided 2105 in Exhibit 1 or as may be adjusted under the terms of this Contract.

2106 11.04.5 Reduction or Discontinuation of Service. CONTRACTOR shall 2107 retain the right to reduce capacity or discontinue provision of Organic Materials Subscription 2108 Collection Services to Commercial Customers under the following circumstances:

2109 11.04.5.1 The Organic Materials Cart or Bin is found to be 2110 contaminated through the inclusion of more than ten (10) percent of materials that are not 2111 Organic Materials as defined herein more than four (4) times in any twelve (12) month period. 2112 Upon a finding a fourth instance of such contamination in any twelve (1) month period, 2113 CONTRACTOR shall notify the Commercial Customer in writing that an additional violation of 2114 the contamination requirements of the program will result in the discontinuation of service.

2115 11.05 Commercial Special Events Collection Service. CONTRACTOR shall offer Mixed 2116 Materials, Recyclable Materials and Organic Materials Collection, Disposal and processing 2117 services at special events in accordance with the approved "Special Events Collection" 2118 Maximum Service Rates provided in Exhibit 1 or as may be adjusted under the terms of this

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2119 Contract. Such services shall include the delivery and pickup of Containers. CONTRACTOR will 2120 deliver Containers the day before the event and pick up Containers the day following the event, 2121 unless arranged otherwise with Customer. If the event is on a weekend or Collection holiday, 2122 CONTRACTOR will deliver Containers the last Work Day before the event and pick up 2123 Containers the first Work Day following the event, unless arranged othenwise with Customer.

2124 11.06 Temporary Roll-Off Box Collection Service. CONTRACTOR shall provide 2125 Temporary Roll-Off Collection Service to all Commercial Customers in the Service Area 2126 subscribing to such service. CONTRACTOR shall respond to requests for service within two (2) 2127 Work Days of receipt of the request. CONTRACTOR shall be compensated for such services in 2128 accordance with the Maximum Service Rates as set forth in Exhibit 1 to this Contract as may be 2129 adjusted in accordance with the terms of this Contract.

2130 ARTICLE 12. CITY COLLECTION SERVICES 2131 » 12.01 CITY Collection Services. CONTRACTOR has offered to donate the following 2132 services as corporate good will:

2133 12.01.1 Conditions of Service. CONTRACTOR shall provide CITY 2134 Collection Services to all CITY Facilities existing in the Service Area as of the effective date of 2135 the Contract where Mixed Materials and Organic Materials are properly containerized in Bins, 2136 Carts, or Roll-Off Boxes regardless of whether the lid is closed, and where the Bins, Carts, or 2137 Roll-Off Boxes are accessible as set forth in Section 12.01.4. All such Mixed Materials and 2138 Organic Materials must be generated on City Facilities or on property maintained by CITY. To 2139 the extent the number of CITY Facilities being serviced by CONTRACTOR increases 2140 disproportionately to the reasonably expected growth in CITY Collection Services provided 2141 during the term of the Contract, the parties agree to meet and confer in good faith to discuss 2142 appropriate service levels as well as compensation for additional services. If the parties are 2143 unable to agree upon the appropriate amount of compensation, the parties shall resolve their 2144 disagreement through the dispute resolution process as set forth in Section 30.02.

2145 12.01.2 Size and Freguencv of Service. CONTRACTOR shall offer Mixed 2146 Materials Carts in 20, 32, 64 and 96 gallon nominal Cart sizes, and Organic Materials Carts in 2147 20, 32, 64 or 96 gallon nominal Cart sizes. CONTRACTOR shall offer Mixed Materials and 2148 Organic Materials Bins in 1, 1.5, 2, 3, 4, 6, and 7 cubic yard sizes. CONTRACTOR shall offer 2149 Mixed Materials and Organic Materials Roll-Off Boxes in 6, 10, 20, 30, and 40 cubic yard sizes 2150 with lids (if desired by CITY). Except for those services that utilize Roll-Off Boxes for Collection, 2151 each service shall be provided at least once every week on a scheduled route basis. However, 2152 in those instances where the scheduled Collection day falls on a holiday as set forth in Section 2153 6.11 herein, or on a CITY holiday or business closure day, the Collection day may be adjusted 2154 in a manner agreed to between CITY and CONTRACTOR as long as service is received a 2155 minimum of one (1) time per week. The size of the Container and the frequency (above the 2156 minimum) of Collection shall be determined between CITY and CONTRACTOR. However, size 2157 and frequency shall be sufficient to provide that no Mixed Materials or Organic Materials need 2158 be placed outside the Container on a regular basis. For those services utilizing Roll-Off Boxes 2159 for Collection, the frequency of Collection shall be on a regular or irregular basis as determined 2160 solely by the needs of CITY.

2161 12.01.3 Manner of Collection. CONTRACTOR shall provide CITY 2162 Collection Services with as little disturbance as possible and shall leave any Container an 2163 upright position, with the lid secure, at the same point it was Collected without obstructing 2164 alleys, roadways, driveways, sidewalks or other public areas. CONTRACTOR shall close or

i City of Oakland ' ' • > . Page 49


2165 lock, as appropriate. Container enclosures that were opened by CONTRACTOR as part of the 2166 Collection process.

2167 12.01.4 Accessibility. CONTRACTOR shall Collect all Mixed Materials 2168 and Organic Materials Containers that are readily accessible to CONTRACTOR'S crew and 2169 vehicles and not blocked. However, CONTRACTOR shall provide "push services" and "key 2170 services" as necessary during the provision of CITY Collection Services. Push services shall 2171 include, but not be limited to, dismounting from the Collection vehicle, moving the Bins or Carts 2172 from their storage location for Collection and returning the Bins or Carts to their storage location. 2173 Push services may include unlocking and relocking the Bin or enclosure Key services shall 2174 include the provision of a master lock and key by CONTRACTOR to the Service Address for the 2175 convenience of CONTRACTOR. CONTRACTOR shall not be compensated for providing "push 2176 services" and or "key services" to CITY.

2177 * • 12.01.4.1 Notification. CONTRACTOR shall notify CITY daily, by e-2178 mail, of all situations that prevent or hinder Collection from any CITY Facility, unless othen/vise 2179 directed by CITY.

2180 12.02 Street Litter Container Service. During the term of this Contract, CONTRACTOR 2181 shall Collect and maintain those street litter Containers as are set forth in Exhibit 4 to this 2182 Contract. CITY may modify Exhibit 4 as needed, by providing written notice to CONTRACTOR, 2183 but such modification shall not increase the number of street litter Containers by more than ten 2184 (10) per Contract Year. This service shall include daily emptying of street litter Containers 2185 including liners and enclosures, and removal of debris atop or around Container, on Work days 2186 (Monday-Friday), and monitoring and emptying of Containers on Saturday and Sunday, as 2187 directed by CITY. ... . ,

2188 12.02.1 CONTRACTOR shall be responsible for repairing and maintaining 2189 all street litter Containers, including liners, doors, locks, and any other attached hardware or 2190 mechanisms. Maintenance includes graffiti removal and/or paint-over. Repair to damaged 2191 Containers, including removal or paint-over of graffiti, must be completed made within six (6) 2192 Work Days of notice from CITY. If CITY requests that more than ten (10) litter containers be 2193 repaired or replaced during any week, CONTRACTOR and CITY shall meet to agree on repair 2194 schedules.

2195 * 12.02.2 CONTRACTOR shall be responsible for providing new street litter 2196 Containers as needed, replacing irreparably damaged Containers, and maintaining an adequate 2197 Container inventory. New street litter Containers shall have separate Garbage and Recyclable 2198 Materials capacity integrated into the Container and shall be approved by the Contract 2199 Manager. CONTRACTOR shall replace damaged Containers, and place new Containers 2200 requested by CITY within six (6) Work Days of CITY request.

2201 12.02.3 CONTRACTOR shall take ownership of CITY street litter 2202 Containers owned by CITY upon implementation of Contract (July 1, 2015). CONTRACTOR 2203 shall be responsible for Recycling, Disposal, or sale of surplus or damaged street litter 2204 Containers. At end of Contract, CITY may exercise option to take ownership of any street litter 2205 Containers then in use. >

2206 12.02.4 CONTRACTOR shall also be responsible for Collection from those 2207 street litter Containers placed in conformance with CITY standards by Business Improvement 2208 Districts and Community Benefit Districts if notified by CITY. CITY shall provide CONTRACTOR 2209 thirty (30) day notice of such additions to the Collection list and limit such additions to no more 2210 than twenty (20) per calendar year.

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2211 12.02.5 CONTRACTOR may petition CITY to remove street litter 2212 containers from problematic or underutilized locations.

2213 12.03 City Council and Mayor Roll-Off Boxes. CONTRACTOR shall provide delivery 2214 and Collection Services for Roll-Off Boxes requested by CITY Council and Mayor for use in the 2215 Service Area. CONTRACTOR shall allocate twelve (12) 20-cubic yard Roll-Off boxes to each of 2216 the eight (8) Council offices and the Mayor, for a total of up to one hundred eight (108) twenty-2217 yard Roll-Off Boxes each calendar year. Any unused portion of this allocation shall carry fon/vard 2218 to succeeding calendar years, up to a maximum of twenty four (24) additional 20-cubic yard 2219 Roll-Off Boxes that must be provided in any one (1) calendar year. Such services shall be 2220 provided in such a manner that all Collection, Processing and Disposal needs, and related staff 2221 support and public education materials for the event are adequately and properly provided for 2222 by CONTRACTOR.

2223 ' • * 12.03.1 CONTRACTOR is responsible for managing requests for Roll-Off 2224 Boxes from the offices of CITY Council and Mayor, and for monitoring the allocation and use of 2225 the Roll-Off Boxes. CONTRACTOR shall provide CITY a monthly report that shows the 2226 allocation of Roll-Off Boxes by office, including allocations that were carried forward, and use to-2227 date for the current calendar year.

2228 12.03.2 CONTRACTOR shall, in response to the written request of the 2229 offices of the City Council or Mayor, deliver and Collect Roll-Off Boxes for use in City Council 2230 and Mayor Roll-Off Box events. The appropriate office of the City Council or Mayor shall notify 2231 CONTRACTOR in writing not less than ten (10) calendar days prior to the date of the need for 2232 the Roll-Off Box. The notice to CONTRACTOR shall specify the date of delivery and Collection 2233 of the Roll-Off Box(es), the location(s) for delivery, and the number of the Roll-Off Boxes to be 2234 delivered. CONTRACTOR shall remove the Roll-Off Box no later than the end of the first Work 2235 Day following the event day. CONTRACTOR shall transport and deliver the Collected materials 2236 to a facility as is appropriate for the disposition of the materials and approved by the Contract 2237 Manager.

2238 12.04 CITY Sponsored Events. CONTRACTOR shall deliver and collect up to thirty 2239 (30) Roll-Off Boxes per calendar year in support of CITY sponsored events, as requested by the 2240 Contract Manager. At such events where CONTRACTOR provides Roll-Off Boxes, 2241 CONTRACTOR shall also provide Carts for CITY'S temporary use if requested by the Contract 2242 Manager. CITY may designate Roll-Off Boxes for Mixed Materials, Recyclable Materials or 2243 Organic Materials Collection. CITY shall empty Carts prior to removal by CONTRACTOR. 2244 CONTRACTOR shall remove Roll-Off Boxes and Carts no later than the end of the first Work 2245 Day following the event day. CONTRACTOR shall transport and deliver the Collected materials 2246 to a facility as is appropriate for the disposition of the materials, and as approved by the 2247 Contract Manager.

2248 12.05 CITY-Approved Adopt-a-Spot Mixed Material and Organics Services. 2249 CONTRACTOR shall provide up to One Hundred Fifty (150) 64-gallon Mixed Material or 2250 Organics Carts to CITY Adopt A Spot volunteers for use in cleaning and greening public spaces 2251 in Oakland. CITY shall provide CONTRACTOR with authorized list of Adopt A Spot volunteer 2252 Service Recipients annually. CONTRACTOR shall provide service to such Carts when they are 2253 set out for Collection with Service Recipient's other Containers. CONTRACTOR shall provide 2254 Mixed Material or Organic Carts and services at no additional cost to Customers, Service 2255 Recipients or CITY.

2256 12.06 Temporary Roll-Off Box Collection Service. CONTRACTOR shall provide 2257 Temporary Roll-Off Collection Service to all CITY Facilities in the Service Area requesting such

" City of Oakland » <• : . ' , - Page 51


2258 service at no charge to CITY. CONTRACTOR shall respond to requests for service within two 2259 (2) Work Days of receipt of the request.

2260 12.07 CITY Delivered Materials. CONTRACTOR shall accept up to seven thousand 2261 five hundred (7,500) Tons of material (the "tonnage allowance") during the period July 1, 2015 2262 through December 31, 2015 at no charge to CITY. Beginning Calendar Year 2016, and each 2263 subsequent Calendar Year, the Tonnage allowance shall be fifteen-thousand (15,000) Tons. In 2264 any Calendar Year, CITY shall be allowed to deliver dirt and debris. Garbage, Recyclable 2265 Materials, Organic Materials and Bulky Goods above the Tonnage allowance, but not more than 2266 the unused Tonnage allowance from the prior two (2) calendar years, at no charge to CITY. 2267 Source Separated Recyclable Materials delivered to CONTRACTOR'S facilities shall not count 2268 toward the Tonnage allowance established pursuant to this Section. The CITY shall make 2269 reasonable efforts to deliver materials properly separated to facilitate processing where feasible 2270 such as with park landscaping green waste. CONTRACTOR shall be compensated for those 2271 Tons that exceed the Tonnage allowance for any calendar year, except as othenfl/ise provided in 2272 this Section. Such compensation shall be based on the per Ton fee for Disposal at the Disposal 2273 Facility. > • - ;

2274 - • 12.08 Illegal Dumping Notification and Collection. CONTRACTOR shall direct its 2275 Collection vehicle drivers to note (i) the addresses of any premises at which the driver observes 2276 that Garbage, Mixed Materials, Recyclable Materials, and/or Organic Materials Material is 2277 accumulating; and (ii) the address, or other location description, at which Garbage, Mixed 2278 Materials, Recyclable Materials, and/or Organic Materials has been dumped in an apparently 2279 unauthorized manner. CONTRACTOR shall deliver the address or description to CITY within 2280 three (3) Work Days of such observation. CONTRACTOR shall also provide Collection services 2281 at up to twenty-five (25) locations per Work Day of up to three (3) cubic yards of such illegally 2282 dumped materials per location provided, however, CONTRACTOR shall not be required to 2283 collect materials not safely accessible by Collection vehicles and/or personnel.

2284 12.09 Provision of Compost. CONTRACTOR shall provide up to five hundred (500) 2285 cubic yards per Contract Year of premium quality compost or other soil amendment or mulch 2286 products delivered to locations in the Service Area and in amounts as directed by the Contract 2287 Manager. Should CITY require greater amounts of these products than five hundred (500) 2288 cubic yards per Contract Year CONTRACTOR shall provide such at a preferential price. For 2289 deliveries of 20 yards or less, CITY must schedule the delivery at least three (3) days in 2290 advance. For deliveries over twenty (20) yards, delivery dates are subject to CONTRACTOR'S 2291 available inventory.

2292 , ; 12.10 Disposal and Processing Facilities. .

2293 12.10.1 Mixed Materials Processing Facility and Disposal Facility. All 2294 Mixed Materials Collected as a result of CITY Collection Services shall be transported and 2295 delivered to the Disposal Facility or the Mixed Materials Processing Facility.

2296 12.10.1.1 Residue From Mixed Materials Processing. An amount of 2297 Residue equal to the Residue generated as a result of Processing the Mixed Materials Collected 2298 during the performance of CITY Mixed Material Collection Service under the terms of this 2299 Contract shall be delivered to the Disposal Facility.

2300 12.10.2 Organic Materials Processing Facility. All Organic Materials 2301 Collected as a result of performing CITY Collection Services shall be delivered to the Organic 2302 Materials Processing Facility. All expenses related to Organic Materials Processing and 2303 marketing will be the sole responsibility of CONTRACTOR.

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2304 12.10.3 Residue From Organic Materials Processing. An amount of 2305 Residue equal to the Residue generated as a result of Processing the Organic Materials 2306 Collected during the performance of CITY Organic Material Collection Service under the terms 2307 of this Contract shall be delivered to the Disposal Facility.

2308 12.11 Modification of CITY Collection Services. CITY may from time to time direct 2309 modifications of CITY Collection Services. Any such modification which materially increases or 2310 decreases the cost of CONTRACTOR providing CITY Collection Services shall be handled 2311 pursuant to the procedures set forth in Article 30.

2312 ^ ARTICLE 13. COLLECTION ROUTES 2313 . 13.01 Collection Routes. Within five (5) Work Days of receipt of a reguest from CITY, 2314 CONTRACTOR shall provide CITY with maps precisely defining Collection routes, and the 2315 travel routes to the Collection routes, together with the days and the times at which Collection 2316 shall regularly commence.

2317 13.02 Subseguent Collection Route Changes. In the event a Residential Collection 2318 route change will change the Collection day of ten (10) percent or more of the Service 2319 Addresses on that route, CONTRACTOR shall provide a written plan, which is subject City 2320 approval, not less than sixty (60) days before the proposed date of implementation. 2321 CONTRACTOR shall coordinate implementation of route changes with the Residential 2322 Recycling Contractor and shall notify affected Service Addresses of the Collection route 2323 changes.

2324 13.02.1 In the event a Residential Collection route change will change the 2325 Collection day of less than ten (10) percent of the Service Addresses on that route, 2326 CONTRACTOR shall provide written notification to the affected Service Addresses and the 2327 Contract Manager not less than two (2) weeks prior to the new Collection day. [CONTRACTOR 2328 shall coordinate implementation of route changes with the Residential Recycling Contractor.]

2329 13.03 Route Map Update. CONTRACTOR shall revise the Customer route maps to 2330 show the addition of Customers added due to construction / occupancy and shall provide such 2331 revised maps to the Contract Manager upon request. .

2332 / 13.04 CONTRACTOR Audit of Routes. In addition to any other auditing requirements 2333 under this Contract, CONTRACTOR shall perform a comprehensive audit of SFD, MFD and 2334 Commercial Customer Routes every full or partial three (3) calendar years, and submit to CITY 2335 a written report on the results of that audit, no later than thirty (30) calendar days after 2336 completion of the audit. The report should include the testing protocols, and the details of the 2337 route audit findings along with recommendations, if any, on how CONTRACTOR will modify the 2338 current system to correct any errors noted during the audit. If CITY requests, CONTRACTOR 2339 shall cooperate fully with CITY to allow CITY to verify the accuracy of CONTRACTOR'S route 2340 audit report. „ *; -v , 4-. ' .

2341 13.05 Coordination with Street Sweeping. CITY AND CONTRACTOR acknowledge 2342 that CONTRACTOR may have to modify Collection days to accommodate CITY's street 2343 sweeping schedule.

2344 ^ ARTICLE 14. COLLECTION EQUIPMENT 2345 14.01 General Provisions. All equipment used by CONTRACTOR in the performance 2346 of Collection Services under this Contract shall be of a high quality. The vehicles shall be

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2347 designed and operated so as to prevent Collected materials from escaping from the vehicles. 2348 Hoppers shall be closed on top and on all sides with screening material to prevent Collected 2349 materials from leaking, blowing or falling from the vehicles. All trucks and Containers shall be 2350 watertight and shall be operated so that liquids do not spill during Collection or in transit.

2351 14.02 Vehicle Registration. Licensing and Inspection. On or before July 1, 2015 and 2352 upon request by CITY thereafter during the term of this Contract, CONTRACTOR shall submit 2353 documentation to the Contract Manager to verify that each of CONTRACTOR'S Collection 2354 vehicles is in compliance with all registration, licensing and inspection requirements of the 2355 California Highway Patrol, the California Department of Motor Vehicles, and any other 2356 applicable laws or regulations. CONTRACTOR shall not use any vehicle that is not in 2357 compliance with applicable registration, licensing and inspection requirements to perform 2358 Collection Services. Each vehicle shall comply, at all times, with all applicable statutes, laws or 2359 ordinances of any public agency.

2360 14.03 Clean Air Vehicles. During the term of this Contract, to the extent required by 2361 law, CONTRACTOR shall provide its Collection vehicles to be in full compliance with local, 2362 State and federal clean air requirements that were enacted or scheduled to be enacted, 2363 including, but not limited to, the California Air Resources Board Heavy Duty Engine Standards 2364 as currently proposed to be contained in OCR Title 13, Section 2020 et seq.; the Federal EPA's 2365 Highway Diesel Fuel Sulfur regulations and any other applicable air pollution control.

2366 14.04 Bulky Goods. Vehicles used for Collection of Bulky Goods containing Freon or 2367 other gases shall not use compactor mechanisms or mechanical handling equipment that may 2368 release Freon or other gases from pressurized appliances.

2369 14.05 Global Positioning Systems (GPS). CONTRACTOR shall provide all route 2370 Collection vehicles equipped with fully functioning on-board GPS with direct and real-time 2371 linkages to CONTRACTOR'S Customer service system.

2372 14.06 Vehicle Noise Level. All Collection operations shall be conducted as quietly as 2373 possible and must comply with U.S. EPA noise emission regulations currently codified at 40 2374 CFR Part 205, California Vehicle Code Section 27207, and other applicable State, County, and 2375 CITY noise control regulations.

2376 14.07 Safety Eguipment. All Collection equipment used by CONTRACTOR shall have 2377 appropriate safety markings including, but not limited to, highway lighting, flashing and warning 2378 lights, clearance lights, and warning flags. All such safety markings shall be in accordance with 2379 the requirements of the California Vehicle Code, as may be amended from time to time. All 2380 Collection vehicles shall be equipped with audible back-up warning devices.

2381 14.08 Vehicle Signage and Painting. Collection vehicles shall have signage in letters of 2382 contrasting color, at a size approved by CITY, on each side and the rear of each vehicle that 2383 clearly states that the Collection vehicle is servicing the CITY of Oakland provides 2384 CONTRACTOR'S name, CONTRACTOR'S Customer service telephone number, CITY'S 2385 Oakland Recycles logo and the number of the vehicle. CONTRACTOR shall repaint all vehicles 2386 (including vehicles striping) during the term of this Contract on a frequency as necessary to 2387 maintain a positive public image as reasonably determined by the Contract Manager.

2388 14.09 Collection Vehicle Education Reguirements. All new Collection vehicles shall 2389 include space for outdoor poster advertising to be utilized by CITY. No advertising shall be 2390 permitted other than the name and corporate logo of CONTRACTOR except promotional 2391 advertisement of the Recyclable Materials and Organic Materials programs.

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2392 14.10 Bin, Compactor and Roll-Off Box Signage, Painting, and Cleaning. All metal 2393 Bins, Compactors or Roll-Off Boxes furnished by CONTRACTOR shall be either painted or 2394 galvanized. All Bins, Compactors or Roll-Off Boxes shall display CONTRACTOR'S name, 2395 CONTRACTOR'S toll free customer service telephone number, and shall be kept in a clean and 2396 sanitary condition. Each Bin, Compactor or Roll-Off Box shall include a description of the type 2397 of material to be placed in the Container and shall be painted in a color and manner, acceptable 2398 to CITY, which is unique to that type of material. Such Bins, Compactors or Roll-Off Boxes as 2399 are provided by CONTRACTOR shall be steam cleaned and repainted by CONTRACTOR as 2400 frequently as necessary, but no more often than one (1) time per quarter, so as to maintain 2401 them in a sanitary condition. However, no more often than one (1) time per quarter, upon 2402 receipt of notification (from CITY or Customer) by CONTRACTOR of graffiti on a Bin, 2403 Compactor or Roll-Off Box, CONTRACTOR shall clean or replace such Bin, Compactor or Roll-2404 Off Box within five (5) Work Days. Instances of CONTRACTOR cleaning, repainting or 2405 replacement exceeding the quarterly limits set forth above are subject to CONTRACTOR fees, 2406 as provided in Exhibit 1. *

2407 . 14.11 Vehicle Maintenance. CONTRACTOR shall maintain Collection vehicles in a 2408 clean condition and in good repair at all times and ensure that no Collected materials, oil, 2409 grease, or other substances will blow, fall out, escape or leak out of the vehicle, with the 2410 exceptions of vehicle emission. All parts and systems of the Collection vehicles shall operate 2411 properly and be maintained in a condition satisfactory to CITY. CONTRACTOR shall wash all 2412 Collection vehicles at least once a week. All washings shall be conducted in a manner that 2413 conforms to the BMP Guidelines for Non-Point Source Pollutants in the publication entitled 2414 Storm Water Best Management Practices Handbook for Industrial Commercial published by the 2415 California Storm Water Quality Association (CASQA).

2416 14.12 Maintenance Log. CONTRACTOR shall maintain a maintenance log for all 2417 Collection vehicles. The log shall at all times be accessible to CITY for physical inspection upon 2418 request of Contract Manager, and shall show, at a minimum, each vehicles' CONTRACTOR 2419 assigned identification number, date purchased or initial lease, dates of performance of routine 2420 maintenance, dates of performance of any additional maintenance, and description of additional 2421 maintenance performed.

2422 14.13 Eguipment Inventory. On or before Ju l y l , 2015, and annually thereafter, 2423 CONTRACTOR shall provide to CITY an inventory of Collection vehicles and major equipment 2424 used by CONTRACTOR for Collection or transportation and performance of services under this 2425 Contract. The inventory shall indicate each Collection vehicle by CONTRACTOR-assigned 2426 identification number, DMV license number, the ages of the chassis and body, type of fuel used, 2427 the type and capacity of vehicle body, the date of acquisition, the decibel rating, the 2428 maintenance status, and the number of vehicles by type. CONTRACTOR shall submit to the 2429 Contract Manager, by web, cloud, or e-mail, an updated inventory annually, or more often at the 2430 request of the Contract Manager. Each vehicle inventory shall be accompanied by a 2431 certification signed by CONTRACTOR that all Collection vehicles meet the requirements of this 2432 Contract.

2433 14.14 Reserve Eguipment. CONTRACTOR shall have available to it, at all times, 2434 reserve Collection equipment that can be put into service and operation within one (1) hour of 2435 any breakdown. Such reserve equipment shall correspond in size and capacity to the 2436 equipment used by CONTRACTOR to perform the contractual duties.

2437 • 14.15 Covering of Loads. All loads not in covered body trucks shall be tarped or 2438 restrained to prevent spilling.

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2439 14.16 Weight Restrictions. CONTRACTOR shall not load vehicles in excess of the 2440 manufacturer's recommendations or limitations imposed by federal. State or local weight 2441 restrictions on vehicles. CONTRACTOR acknowledges that CITY may document compliance 2442 with this provision of the Contract through review of scale tickets and records of the Disposal 2443 and Processing Facilities.

2444 14.17 Vehicle Tare Weights. Between the time this Contract is executed and July 1, 2445 2015, CONTRACTOR shall have the Disposal Contractor weigh and determine the unloaded 2446 ("tare") weight of each of CONTRACTOR'S vehicles that will be used to deliver Mixed materials 2447 and other materials to the Disposal Facility. CONTRACTOR shall, at least every two (2) years, 2448 have the Disposal Contractor reweigh and revise tare weights for all CONTRACTOR'S vehicles 2449 used to deliver Mixed Materials and other materials to the Disposal Facility. *

2450 ARTICLE 15. LOCAL OFFICE 2451 15.01 Oakland Office. During the term of this Contract CONTRACTOR shall maintain 2452 an office in the Service Area. CONTRACTOR'S office shall provide toll-free telephone access 2453 to CITY residents, and shall be located where Customers can pay their bills or make service 2454 requests or inquires in person. The office shall be open and staffed from 8:00 am to 6:00 pm on 2455 Work Days, except for designated holidays. The office shall have a responsible person in 2456 charge who is familiar with the specific Collection Services provided by CONTRACTOR to CITY. 2457 CONTRACTOR shall equip the office with a direct terminal connection to the customer service * 2458 system operated at CONTRACTOR'S call center.

2459 ARTICLE 16. CUSTOMER SERVICE 2460 16.01 Customer Service Program. CONTRACTOR shall develop, implement, and 2461 maintain a customer service program approved by CITY to ensure that all services provided 2462 under this Contract are high quality. CONTRACTOR'S customer service plan is set forth as 2463 Exhibit 9, which is attached to and included in this Contract.

2464 " 16.02 CONTRACTOR'S Customer Service Center and Telephone and Email Access." 2465 CONTRACTOR shall maintain a Customer center that provides toll-free telephone and email 2466 access to residents and businesses of CITY, and is staffed by trained and experienced 2467 Customer Service Representatives (CSRs). Such Customer service center shall have 2468 responsible persons in charge during Collection hours, and shall be open 8:00 a.m. to 6:00 p.m. 2469 on regularly scheduled Work Days (Monday through Friday) and when SFD or MFD Collection 2470 Services are scheduled to be provided on Saturday; and be staffed with a sufficient number of 2471 CSRs and equipped with sufficient telephone and email capacity such that:

2472 16.02.1 Up to ten (10) incoming calls can be received at one time;

2473 16.02.2 Customer or Service Recipient calls received during normal ^ 2474 business hours are answered by system within five (5) rings;

2475 16.02.3 Average Speed to Answer for Residential Customer calls shall be 2476 three (3) minutes or less based on a weekly average. Speed to Answer is the time commencing 2477 when a caller is placed in a queue (immediately after a caller hears CONTRACTOR recorded 2478 messages and makes a choice from the phone tree) and ending when a live agent picks up the 2479 call; *

2480 16.02.4 During any on-hold waiting time and when the call center is .v 2481 closed, Customers or Service Recipients are offered the option to leave a voice message;



2482 16.02.5 Any call "on-hold" in excess of one and one half (1.5) minutes 2483 shall have the option to remain "on-hold" or to be switched to a message center where the 2484 Customer can leave a message;

2485 16.02.6 Customer or Service Recipient voice messages are returned in 2486 the order received and left by 6:00 p.m. Pacific time at latest by the close of the Work Day 2487 following the day the voice message is received; and

2488 16.02.7 Customer or Service Recipient mails are responded to in the order 2489 received and left by 6:00 p.m. Pacific time at latest by the close of the Work Day following the 2490 day the email is received.

2491 16.03 Telephone Access to the Residential Recycling Contractor. CONTRACTOR 2492 shall provide a local telephone number that allows callers to be automatically transferred to the 2493 Residential Recycling Contractor, as appropriate. It shall be CONTRACTOR'S responsibility to 2494 ensure that transferred callers experience no changes in volume or clarity from that associated 2495 with direct calls to CONTRACTOR. The Residential Recycling Contractor shall reasonably 2496 determine the appropriate volume for call transfers. ?

2497 16.04 Multilingual/TDD Service. CONTRACTOR'S call center shall at all times during 2498 the normal business hours set forth in Section 16.02 maintain the capability of responding to 2499 telephone calls in English, Chinese (Cantonese), Vietnamese, Spanish, and such other 2500 languages as reasonably may be directed by CITY in accordance with its Equal Access 2501 Program requirements. CONTRACTOR shall at all times maintain the capability of responding 2502 to telephone calls through Telecommunications Device for the Deaf (TDD) Services.

2503 16.05 Website. CONTRACTOR shall develop and maintain a state-of-the-art website 2504 dedicated to services provided in CITY, which is accessible by the public. The website shall 2505 include answers to frequently asked questions, rates for Collection Services, listing and 2506 description of Mixed Materials, Recyclable Materials and Organic Materials, Collection Service 2507 schedules and maps, and other related topics. The website shall also have a link to CITY'S 2508 website and a link to the Recyclable Materials Collection Contractor's website. CONTRACTOR 2509 shall arrange for CITY'S website to include an e-mail link to CONTRACTOR and a link to 2510 CONTRACTOR'S website. CONTRACTOR'S website shall provide the public the ability to e-2511 mail comments inquiries and request services or service changes to CONTRACTOR.

2512 ARTICLE 17. COMMUNITY OUTREACH SERVICES 2513 17.01 Community Outreach Services. CONTRACTOR shall be required to implement, 2514 at its own expense, CONTRACTOR'S Community Outreach Strategy set forth in Exhibit 7 to this 2515 Contract. The Community Outreach Strategy will provide an overview of the Contractor's plans 2516 to engage the community in full use of the Collection Services and the Diversion goals of the 2517 Contract.

2518 17.01.1 Transitional Outreach Plan. CONTRACTOR shall prepare and 2519 implement, at its own expense, a transitional outreach plan consisting of a community outreach 2520 campaign that makes aware and fully informs SFD, MFD, and Commercial Customers of the 2521 Collection Services, highlighting changes to the current services, relevant to the Customer 2522 experience, which will occur through execution of the Contract. The transitional outreach plan 2523 will be consistent with and informed by CONTRACTOR'S Community Outreach Strategy as set 2524 forth in Exhibit 7. The transitional outreach plan will be implemented beginning January 2015, 2525 or with execution of the Contract, whichever is later. The transitional plan will cover all

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2526 CONTRACTOR'S community outreach services in Calendar Year 2015. The budget for the 2527 transitional plan shall be not more than One Million Dollars ($1,000,000).

2528 17.01.2 Annual Outreach Plan. CONTRACTOR, at its own expense, shall 2529 prepare, submit and implement an annual outreach plan that is consistent with and informed by 2530 CONTRACTOR'S Community Outreach Strategy as set forth in Exhibit 7. CONTRACTOR shall 2531 submit the initial annual outreach plan for CITY approval no later than September 1, 2015, and 2532 subsequent annual outreach plans no later than September 1 each year thereafter. CITY shall 2533 review and respond to the proposal within forty five (45) days. Implementation of the annual 2534 outreach plan would begin on January 1 of each year. The annual outreach plan must include 2535 specific steps designed to increase Diversion and Customer participation in the Collection 2536 Services, and measure the effectiveness of these efforts. The annual outreach plan should 2537 target specific materials, or demographic or service sectors where improvements can be 2538 maximized. Outreach targets should be based on measured trends and patterns in recycling 2539 and disposal activities, participation, and tonnages by service sector, within the Service Area 2540 and within identified Service Area localities, as indicated by information obtained by both the 2541 Contract Manager and CONTRACTOR'S staff.

2542 • . • 17.01.3 Community Outreach Budget. CONTRACTOR shall be required 2543 to allocate or spend no more than One Million Dollars ($1,000,000) in the first calendar year of 2544 the Contract, to implement the transitional outreach plan, and not more than Five Hundred 2545 Thousand Dollars ($500,000) per calendar year thereafter to implement the annual outreach 2546 plan. All such expenditures require prior approval from CITY unless included in outreach plan. 2547 CITY and CONTRACTOR may mutually agree to perform joint Public Outreach activities using 2548 all or some of the annual Public Outreach budget. Public relations activity costs cannot be 2549 applied to the Public Outreach budget. At the end of the calendar year, any funds in the 2550 approved annual outreach budget that remain unspent shall be carried forward to the following 2551 calendar year. However, in the event CONTRACTOR has unspent funds at the end of three (3) 2552 consecutive calendar years, the unspent funds shall be deposited in the Rate Stabilization 2553 Fund. •

2554 ' 17.01.4 Community Outreach Professional Services. Contractor will 2555 engage the services of a professional firm or firms that specialize in community outreach, 2556 marketing, public relations, and graphic design that preferably are based in Oakland or the Bay 2557 Area. Such firms shall possess a minimum five (5) years' experience in marketing, 2558 communications and/or community outreach, including two (2) years' experience conducting 2559 outreach in a city comparable to Oakland in size and complexity; and knowledge of outreach 2560 best practices, such as community-based social marketing.

2561 17.02 CITY Approval Reguired. All marketing, messaging or other mass 2562 communications, including but not limited to print, outdoor media, broadcast, web-based, e-mail, 2563 and telephone voice messages, directed to Customers or Service Recipients, must be approved 2564 by the Contract Manager prior to execution or delivery to the Customer or Service Recipient, 2565 regardless of whether these communications relate to the Collection Services. All public 2566 relations, press and community outreach activities that involve the Collection Services, or that 2567 are targeted to the Service Recipients or Customers, must have prior written approval from the 2568 Contract Manager, whether or not they are being paid for from the Community Outreach budget. 2569 CONTRACTOR shall not perform any work on Community Outreach materials or activities 2570 without prior written approval from the Contract Manager. All materials shall be submitted in 2571 writing for review and approval. Written authorization by the Contract Manager is required prior 2572 to final production of any Community Outreach materials. National marketing efforts by 2573 corporate affiliates of CONTRACTOR are outside the scope of this Article 17; however, any

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2574 national efforts which are to be targeted directly to Oakland or East Bay customers shall require 2575 reasonable prior notification to CITY.

2576 17.03 Outreach Production Reguirements. CONTRACTOR shall utilize designers, 2577 printers and mail houses located within the Service Area for the design, development, printing 2578 and mailing of all community outreach materials related to this Contract, unless othenwise 2579 approved by Contract Manager. In addition, unless Contract Manager has granted an exception 2580 in writing, the Community Outreach materials shall:

2581 17.03.1 Be printed on one hundred (100) percent recycled paper with at 2582 least fifty (50) percent post-consumer recycled content using soy based (or other non-toxic) 2583 inks; ' ' '

2584 17.03.2 Include CITY'S Oakland Recycles logo and the CITY'S recycling

2585 hotline phone number;

2586 17.03.3 Include four (4) languages whenever possible and/or needed; and

2587 . 17.03.4 Be made accessible to those with disabilities, in accordance with 2588 all applicable federal, state, and local laws and regulations. 2589 17.04 Copyrights. At CONTRACTOR'S sole expense, CONTRACTOR shall execute 2590 appropriate documents to assign to CITY either a copyright to works created pursuant to this 2591 Article 17, or a license limited for the term of the Contract for use of such works, if so requested 2592 by CITY. CONTRACTOR shall provide space in CONTRACTOR'S printed public outreach 2593 materials, for CITY to include announcements, community information, articles, and 2594 photographs.

2595 17.05 Annual Collection Service Notice. Each full or partial calendar year during the 2596 term of this Contract, CONTRACTOR shall publish and distribute separate notices to all SFD 2597 Customers and Service Recipients regarding the SFD Collection Service, to all MFD Customers 2598 and Service Recipients regarding MFD Collection Service, and to all Commercial Customers 2599 regarding Commercial Collection Service. To the extent appropriate, based on the category of 2600 Customer receiving the notice, it shall contain at a minimum: definitions of the materials to be 2601 Collected, procedures for setting out the materials, Collection and Disposal options for 2602 unacceptable materials such as Hazardous Waste, maps of the Service Area indicating the day 2603 of the week that Collection Service will be provided, and CONTRACTOR Customer service 2604 phone number, email address and website address. The notice shall be provided in English, 2605 Spanish, Vietnamese and Chinese (Cantonese) and such other languages as reasonably may 2606 be directed by CITY in accordance with its Equal Access Program requirements, and shall be 2607 distributed by CONTRACTOR no later than June 1, 2015 for the first partial calendar year and 2608 by November 15, 2016 and annually thereafter for the remaining term of the Contract.

2609 17.06 Bill Inserts. CITY may provide educational and other material to CONTRACTOR 2610 for inclusion in the invoices provided by CONTRACTOR to SFD, MFD and Commercial 2611 Customers for Collection Services. CONTRACTOR shall not charge CITY for the inclusion of up 2612 to three (3) 8 Yt" by 11" pages per billing. To the extent CITY provides the insert material in an 2613 electronic format, CONTRACTOR shall ensure that such materials are delivered or made 2614 available to Customers utilizing electronic billing options provided by CONTRACTOR. In the 2615 case of bill inserts developed jointly by CITY and CONTRACTOR, the cost of bill insert 2616 development and production shall be allocated to the annual community outreach budget.

2617 17.07 Bulky Goods Collection Service. Outreach requirements for the Bulky Goods 2618 Collection Service program include an annual announcement sent to all residential Service

City of Oakland " - . > Page 59


2619 Addresses, a mid-year reminder notice to all service addresses, and an appointment 2620 confirmation notice sent to Service Recipients following the scheduling of an appointment. 2621 These materials are described in the Bulky Services Agreement, attached as Exhibit 14, which 2622 may be modified as needed by agreement of CONTRACTOR and CITY.

2623 17.08 CONTRACTOR'S Website. CONTRACTOR shall maintain a website that uses 2624 graphics and statistics illustrating CITY progress toward becoming a Zero Waste Community, 2625 and provides resources the community can use to support Zero Waste and Sustainability 2626 efforts, the Collection Services, and other programs as requested by CITY. CITY shall review 2627 and approve CONTRACTOR'S website content that is related to this Contract.

2628 ^ 17.09 News Media Relations. CITY shall oversee all press activities including press 2629 releases, press conferences, press kits, press packets and general press inquiries regarding the 2630 Program. CONTRACTOR shall notify the Contract Manager by e-mail or phone of all requests 2631 for news media interviews related to the Collection Services program within twenty-four (24) 2632 hours of CONTRACTOR'S receipt of the request. Before responding to any news media 2633 inquiries involving controversial issues or any issues likely to affect participation or Customer 2634 perception of services, CONTRACTOR will discuss CONTRACTOR'S proposed response with 2635 the Contract Manager. However, notwithstanding anything to the contrary in this Section 17.09, 2636 there may be instances of unannounced media visits where CONTRACTOR responses would 2637 be beneficial, in CONTRACTOR'S reasonable judgment. In such cases, CONTRACTOR will not 2638 be obligated to obtain CITY consent to media communication, but will summarize such 2639 communication to CITY as soon as practicable. Copies of draft news releases or proposed 2640 trade journal articles shall be submitted to CITY for prior review and approval at least five (5) 2641 Work Days in advance of release. Copies of articles resulting from media interviews or news 2642 releases shall be provided to CITY within five (5) Work Days after publication.

2643 * 17.10 Compost for CITY Residents. CONTRACTOR shall make available a total of 2644 eighty (80) cubic yards per calendar year of pre-bagged compost for distribution to Oakland 2645 residents at two (2) annual compost give-back events within the jurisdictional limits of CITY 2646 during each of the first two (2) years of the Contract. CONTRACTOR shall work with CITY to 2647 determine the dates and locations of the give-back events.

2648 * • 17.10.1 CONTRACTOR shall be responsible for all aspects related to 2649 planning, managing, and staffing of the compost give-back event. Residents shall be required 2650 to show proof of residency to receive the compost product. No later than ten (10) Work Days 2651 following the compost give-back event, CONTRACTOR shall submit to CITY a written report 2652 identifying the number of residents who accepted materials; the number of bags given away; the 2653 total tonnage of material given away; a summary of feedback and suggestions provided by 2654 residents; and any suggestions CONTRACTOR proposes for the next compost give-back 2655 event(s).

2656 V ARTICLE 18. EMERGENCY SERVICE PROVISIONS 2657 18.01 Emergency Services. CONTRACTOR shall provide emergency services (i.e., 2658 special collections, transport, processing,) at CITY'S request in the event of a declared local, 2659 State, or federal state of emergency, major accidents, disruptions or natural calamities. 2660 CONTRACTOR shall be capable of providing emergency services within twenty-four (24) hours 2661 of notification by CITY, or as soon thereafter as is reasonably practical in light of the 2662 circumstances. An emergency contact person designated by CONTRACTOR shall be 2663 accessible during the term of this Contract twenty-four (24) hours per day for the Contract 2664 Manager or other CITY Administrator designee to contact CONTRACTOR. CONTRACTOR

in;: ' ' Page 60 CITY I OF O A K L A N D


2665 shall receive additional compensation, above the normal compensation contained in this 2666 Contract, to cover the costs of rental equipment, additional personnel, overtime hours and other 2667 documented expenses based on the rates set forth in Exhibit 1 to this Contract provided 2668 CONTRACTOR has first secured written authorization and approval from CITY through the 2669 CITY Administrator. • . ,

2670 18.02 In the event of an emergency as set forth above, the Contract Manager may 2671 grant CONTRACTOR a variance from regular routes and schedules. As soon as practicable 2672 after such event, CONTRACTOR shall advise the Contract Manager when it is anticipated that 2673 normal routes and schedules can be resumed. The Contract Manager shall make an effort 2674 through the local news media to inform the public when regular services may be resumed.

2675 ARTICLE 19. RECORD KEEPING & REPORTING REQUIREMENTS 2676 19.01 Record Keeping.

2677 19.01.1 Accounting Records. CONTRACTOR shall maintain full, complete 2678 and separate financial, statistical and accounting records, pertaining to cash and billing, and 2679 provision of all Collection Services provided under this Contract, prepared on an accrual basis in 2680 accordance with generally accepted accounting principles. Such records shall be subject to 2681 audit and inspection by CITY. Gross Receipts derived from provision of the Collection Services 2682 shall be recorded as revenues in the accounts of CONTRACTOR. These records shall be 2683 separate and segregated from other records maintained by CONTRACTOR for services outside 2684 the scope of this Contract as may be provided by CONTRACTOR. CONTRACTOR shall 2685 maintain and preserve all cash, billing and Disposal records for a period of not less than five (5) 2686 years following the close of each of CONTRACTOR'S fiscal years.

2687 . : ' 19.01.2 CONTRACTOR Payments to CITY. CONTRACTOR shall 2688 maintain records of all payments made to CITY for all items listed in Section 7.17.7, 7.17.8, 2689 7.17.9, and 7.17.10.

2690 19.01.3 Tonnage Records. CONTRACTOR shall maintain records of the 2691 incoming and outgoing quantities, measured in pounds, of (i) Mixed Materials, Recyclable 2692 Materials, and Organics Material, and Bulky Materials Collected, Processed, composted, and 2693 Disposed under the terms of this Contract, and (ii) Recyclable Materials and Organic Materials, 2694 by material type, sold, donated or given for no compensation, and Residue Disposed.

2695 19.01.4 Records. CONTRACTOR shall maintain all other records relevant 2696 to the provision of Collection Services under this Contract. After a meet and confer if 2697 CONTRACTOR so requests, CONTRACTOR shall maintain such additional records as 2698 reasonably required by CITY and agreed to by CONTRACTOR.

2699 19.01.4.1 CONTRACTOR shall maintain a relational database that 2700 includes data from all required reports for the term of this Contract, and provide CITY with 2701 access to the database. Database shall be flexible to accommodate changing needs and 2702 conditions over the term of this Contract. - >

^ - • 2703 19.02 Reporting Reguirements. Monthly reports shall be delivered to CITY no later 2704 than fifteen (15) calendar days after the end of the prior month. Quarterly reports shall be 2705 delivered to CITY no later than twenty (20) calendar days after the end of the reporting quarter. 2706 Annual reports shall be delivered to CITY no later than thirty (30) days after the end of each 2707 preceding calendar year. Monthly, quarterly and annual reports shall be provided electronically 2708 in forms and formats acceptable to the CITY.

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i t; Mixed Materials and Organics Collection Services Contract 9/19/14

2709 19.02.1 Monthly Reports. CONTRACTOR shall provide reports that 2710 include the following data for each month and year to date.

2711 19.02.1.1 Collection Service Account Data. Number of SFD and 2712 MFD buildings and units served; number of Commercial and CITY accounts served. Number of 2713 containers in service by Collection Service type, container size, and material type (e.g.. Mixed 2714 Materials, Organic Materials), and container service location (e.g., curbside placement, 2715 Premium Backyard, Exempt Backyard). Number of Non-Collection Notices issued by Collection 2716 Service type and by reason for non-collection.

2717 19.02.1.2 Collected Tonnage Data. Tonnage for all materials 2718 Collected, by Collection Service type and by material type, e.g.. Mixed Material, Organic 2719 Materials. Bulky Goods Collection Service, including Collected tonnage, bulky goods item 2720 counts, and other data and information per Exhibit 14 of this Contract. Tonnage for all materials 2721 delivered to the transfer facility by CITY vehicles, and tonnage and pull data for CITY Roll-Off 2722 boxes serviced by CONTRACTOR. ,

2723 . ,1. i 19.02.1.3 Processed Tonnage Data. Tonnage for all Collected 2724 materials that are delivered to Processing facilities by Collection Service type, and by 2725 processing facilities.

2726 19.02.1.4 Processed Materials Data. Tonnage of each material 2727 produced through the Processing of Collected materials at CONTRACTOR'S Processing 2728 Facility, e.g., finished compost, old corrugated containers, mixed paper and other recycled 2729 commodity grades, feedstock for biomass or refuse derived fuel, and energy products derived 2730 from CONTRACTOR'S Processing of Organic materials (should CONTRACTOR produce such 2731 energy products). CONTRACTOR shall use a statistically significant method approved by CITY 2732 to calculate the Tonnage of finished Processed material, net of Residue, attributable to material 2733 Collected under this Contract.

2734 19.02.1.5 Disposal Tonnage Data. Tonnage for all materials 2735 Collected that are transferred to the Disposal Facility without Processing, by Collection Service 2736 type. Tonnage for all Residue from Processing of Collected materials, by processing facility. 2737 CONTRACTOR shall use a statistically significant method approved by CITY to calculate the 2738 tonnage of Residue attributable to material Collected under this Contract.

2739 19.02.1.6 Customer Service Data. Number of Customer and Service 2740 Recipient contacts, e.g., phone calls or electronic communications, by date. Collection Service 2741 type, and topic including but not limited to the topics listed.

2742 ^ ^ f 19.02.1.7 Local Hire Reguirement Update. CONTRACTOR shall 2743 provide monthly updates on its compliance with Local Hire Requirements in Article 55 of this 2744 Contract.

2745 19.02.1.8 Roll-Off Box Report. CONTRACTOR shall provide a City 2746 Council and Mayor Roll-Off Box report that shows the allocation of Roll-Off Boxes by office, 2747 including allocations that were carried forward, and use to-date for the then current calendar 2748 year in compliance with Section 12.03.1.

2749 19.02.2 Quarterly Reports. CONTRACTOR shall provide the following 2750 information each quarter:

2751 19.02.2.1 Public Outreach and Information Activities. Report on all 2752 public outreach and information activities undertaken during the period, including distribution of 2753 outreach materials and other promotional activities.

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^ - • Mixed Materials and Organics Collection Services Contract 9/19/14

2754 19.02.2.2 Processing and Marketing Activities. Report on Recyclable 2755 Materials and Organic Materials Processing and marketing issues or conditions, if any, 2756 occurring during the previous quarter. 2757 19.02.2.3 Customer Service Activities. Report on customer service 2758 and Call Center issues or conditions, if any, occurring during the previous quarter. 2759 19.02.2.4 Operational Issues and Activities. Report on significant 2760 changes in Collection Service or Processing operations, instances of property damage or 2761 accidents, scavenging, or other operational issues. 2762 19.03 Annual Reports. CONTRACTOR shall provide the following data and information 2763 each year. 2764 19.03.1.1 Customer and Collection Services Data. List of all 2765 Customers serviced under this Contract including and sortable by Collection Service type, 2766 Customer name. Service Address (street number, street name. Zip Code), number of 2767 Containers billed for by Collection Service type. Container size, and material type, e.g., Mixed 2768 Material, Organic Material. 2769 • ' .vL: . 19.03.1.2 [reserved] 2770 " " 19.03.1.3 Local Hire Reguirement Annual Report. CONTRACTOR 2771 shall provide an annual report on its compliance with Local Hire Requirements in Article 55 of 2772 this Contract. ... ; : 2773 19.03.1.4 Gross Receipts. CONTRACTOR shall provide a summary 2774 of the prior year's Gross Receipts received, by Collection Service type. 2775 19.03.1.5 Equipment Inventon/. Updated complete inventory of 2776 Collection vehicles used pursuant to this Contract, by vehicle chassis identification number, 2777 vehicle body identification number, license number and model year. 2778 19.03.1.6 Business Tax Certificate. Copy of current business tax

2779 certificate.

2780 ; 19.04 Additional Reporting and Access to Information.

2781 19.04.1 CONTRACTOR shall provide CITY with any additional data and 2782 information requested by CITY that is maintained by, or readily available to, CONTRACTOR 2783 and that is specifically related to the Collection Services. Such reports shall be provided within 2784 a reasonable time following the request. 2785 19.04.2 CONTRACTOR shall provide CITY with CONTRACTOR'S Call 2786 Center records as requested by CITY and which are required pursuant to other provisions of 2787 this Contract. 2788 19.04.3 CONTRACTOR shall provide a large wall map of the Service Area 2789 that shows Collection day of service for SFD and MFD routes. CONTRACTOR shall provide an 2790 updated map whenever route changes include a change to day of service. 2791 19.04.4 CONTRACTOR shall provide CITY with Collection Route 2792 information as requested by CITY, as may reasonably be provided. Such information to be 2793 provided within a reasonable time following the request.

City of Oakland ; . * Page 63


2794 19.04.5 CONTRACTOR shall provide CITY with CONTRACTOR'S 2795 Collection vehicle global positioning system (GPS) reports as requested by CITY, as may 2796 reasonably be provided.

2797 19.05 Nothing in this Article 19, or elsewhere in this Contract, shall be construed to 2798 require CONTRACTOR to provide cost (other than the weight of costs for purposes of 2799 calculating RRI) or profit information. .

2800 f ' " ARTICLE 20. NONDISCRIMINATION 2801 20.01 Nondiscrimination. In the performance of all work and services under this 2802 Contract, CONTRACTOR shall not discriminate against any person on the basis of such 2803 person's race, color, religion/religious creed, sex/gender, pregnancy, marital status, age, 2804 national origin/ancestry, physical and/or mental disability, medical condition, sexual orientation, 2805 gender identity, military or veteran status, or status in any other group protected by federal, 2806 State or local law. CONTRACTOR shall comply with all applicable local, state and federal laws 2807 and regulations regarding nondiscrimination, including those prohibiting discrimination in 2808 employment.

2809 ' ARTICLE 21. SERVICE INQUIRIES AND COMPLAINTS 2810 21.01 CONTRACTOR'S Customer Service. All Customer and Service Recipient 2811 inquiries and complaints about the Services shall be directed to CONTRACTOR. A 2812 representative of CONTRACTOR shall be available to receive the inquiries and complaints 2813 during normal business hours. All service inquiries and requests will be handled by 2814 CONTRACTOR in a prompt, courteous, and efficient manner. In the case of a dispute between 2815 CONTRACTOR and a Customer, the matter may be reviewed and a decision made by the 2816 Contract Manager.

2817 21.01.1 Customer Service System. CONTRACTOR will utilize an 2818 automated Customer service system to maintain a record of all inquiries and complaints in a 2819 manner prescribed by CITY. In addition thereto, CONTRACTOR shall maintain, at 2820 CONTRACTOR'S place of business, an automated Customer service system, listing all 2821 Customer service requests, complaints and CONTRACTOR notices. Said system shall contain 2822 the names and addresses of parties involved, date of such service request, complaint or 2823 noticing, nature of same, and the date and manner of disposition of each case. Such system 2824 shall be kept so that it may conveniently be inspected by representatives of CITY upon request.

2825 21.01.2 Response Reguirements. For those complaints related to missed 2826 Collections that are received by 12:00 noon on a Work Day, CONTRACTOR will return to the 2827 Customer address and Collect the missed Carts or Bins by 12:00 noon on the following Work 2828 Day. For those complaints related to missed Collections that are received after 12:00 noon on a 2829 Work Day, CONTRACTOR shall have until the end of the following Work Day to resolve the 2830 complaint. For those complaints or service requests related to Carts or Bins for new 2831 Customers, or repair, replacement or exchange of Carts or Bins, the appropriate Articles of this 2832 Contract shall apply.

2833 * 21.01.3 Missed Collections. CONTRACTOR agrees that it is in the best 2834 interest of CITY that all Mixed Materials, Recyclable Materials, Organic Materials and Bulky 2835 Goods be Collected on the scheduled Collection day. Accordingly, missed Collections will 2836 normally be Collected as set forth herein regardless of the reason that the Collection was 2837 missed. However, in the event a Sen/ice Address reports missed Collection Services more than



2838 two (2) times in any consecutive two (2) month period the Contract Manager will work with 2839 CONTRACTOR to determine an appropriate resolution to that situation. In the event 2840 CONTRACTOR believes any complaint to be without merit, CONTRACTOR shall notify the 2841 Contract Manager, by e-mail. The Contract Manager will investigate all disputed complaints and 2842 render a decision. . , . . ,

2843 ARTICLE 22. QUALITY OF PERFORMANCE OF CONTRACTOR 2844 22.01 Intent. CONTRACTOR acknowledges and agrees that one of CITY'S primary 2845 goals in entering into this Contract is to ensure that the Collection Services are of the highest 2846 caliber, that Service Recipient and Customer satisfaction remains at the highest level, that 2847 maximum Diversion levels are achieved, and that materials Collected are put to the highest and 2848 best use to the extent feasible.

2849 22.02 Contract Compliance Coordinator. CONTRACTOR will provide for a full-time 2850 Contract Compliance Coordinator dedicated to CITY. The Contract Compliance Coordinator 2851 shall be responsible for monitoring CONTRACTOR'S programs and services and assisting CITY 2852 in maintaining full contractual compliance at all times during the term of the Contract. These 2853 duties shall include but not be limited to issues related to new and existing Customer needs, 2854 public education, routing, and customer service. The Contract compliance Coordinator shall 2855 meet monthly with CITY staff to provide updates on all areas of service as needed.

2856 22.03 Services Manager. CONTRACTOR shall designate a manager to be in charge of 2857 the Collection Services within the Service Area. The manager shall have the authority and 2858 knowledge to direct CONTRACTOR resources as need to resolve matters of concern to CITY. 2859 The Services Manager, or designee shall be available to the Contract Manager through the use 2860 of a mobile telephone at all times that CONTRACTOR is providing Collection Services.

2861 22.04 Liguidated Damages. The parties further acknowledge that consistent and 2862 reliable Collection Services are of utmost importance to CITY, and that CITY has considered 2863 and relied on CONTRACTOR'S representations as to its quality of service commitment in 2864 awarding the Contract. The parties further recognize that some quantified standards of 2865 performance are necessary and appropriate to ensure consistent and reliable service and 2866 performance. The parties further recognize that if CONTRACTOR fails to achieve the 2867 performance standards, or fails to submit required documents in a timely manner, CITY, and 2868 CITY'S residents and businesses will suffer damages and that it is and will be impractical and 2869 extremely difficult to ascertain and determine the exact amount of damages. Therefore, without 2870 prejudice to CITY'S right to treat such non-performance as an event of default under Article 29, 2871 the parties agree that the liquidated damages amount defined in this Article represent 2872 reasonable estimates of the amount of such damages considering all of the circumstances 2873 existing on the effective date of this Contract, including the relationship of the sums to the range 2874 of harm to CITY, Customers, Service Recipients, and the community as a whole, which 2875 reasonably could be anticipated, and the anticipation that proof of actual damages would be 2876 costly or impractical. In placing their initials at the places provided, each party specifically 2877 confirms the accuracy of the statements made above and the fact that each party has had 2878 ample opportunity to consult with legal counsel and obtain an explanation of the liquidated 2879 damage provisions at the time that the Contract was made.

2880 CITY Initial Here CONTRACTOR Initial Here

2881 CONTRACTOR agrees to pay (as liquidated damages and not as penalty) the following 2882 amounts: . , . .



1 Failure to timely submit or make available to CITY documents and reports as required under the provisions of this Contract (Various Sections).

$100 per incident per day

2 Failure to correct identified billing errors as required in (Article 7).

$10 per incident per billing cycle capped at $100,000 per billing cycle

3 Failure to pay the amount due to the Residential Recycling Contractor within the time period set forth herein after receiving invoice approval from CITY (Section 7.14).


4 Failure to remit the Franchise Fee and other payments to CITY by the 15' of each month (Section 7.20).


omitted

6 Failure to provide timely transition documents or meet transition requirements (Section Article 6.19).

$300 per item per day

omitted

8 Failure to notify CITY daily of all situations that prevent or hinder Collection from any CITY Facility, unless othenwise directed by CITY (Article 12). ,

$100 per day

9

. • •

Failure to Collect or otherwise recover within the time set forth in Section 21.01.2 materials that are set out for Collection including materials that have been rejected but where a Non-Collection Notice was not provided which exceeds one (1) such failures per 1,000 services per service category (e.g.. Mixed Materials, Organics) per service sector (SFD, MFD, Commercial) per month, or which exceeds twenty-five (25) such failures per 1,000 services per month for Bulky.


10 Failure to service, repair, maintain, or replace street litter Containers (as provided in Section 12.02) which exceeds 5 such failures per week.


11 Missed or incomplete SFD Residential Collection at the same Service address for: Two consecutive scheduled Collections

Three of six scheduled Collections ^ j Eight Collections in six months

Twelve Collections in twelve months '

(Article 9).

$50 per incident $250 per incident $500 per incident $1,000 per incident


Page 66


12 Failure to repair or replace, deliver, remove or exchange damaged, missing or abandoned Carts or Bins within the time required by this Contract (Sections 6.06.4 through 6.06.9.3) which exceeds 10 such failures per week.


13 Failure to commence clean-up of spills, leaks, or litter caused by CONTRACTOR by end of Work Day, upon notification from CITY (Section 6.15).

$300 per incident

14 Failure to properly return empty Carts or Bins to the point of Collection, upright with lids closed and locks secured, as required by Section 6.04, which exceeds 50 such failures per month.


15 Failure to answer a Customer call within five (5) rings (Section 16.02.2). Answer" includes any method of picking up Customer calls, including recorded greetings.

$50 per incident

16 Customer on-hold wait time, based on a weekly average that is:

• Greater than three minutes and up to four minutes • Greater than four minutes and up to five minutes • Over five minutes (Section 16.02.3).

$1,000 per week $2,000 per week $3,000 per week

17 Failure to return a Customer voice message or respond to a Customer e-mail by the close of the Work Day following the day the voice message or e-mail is received (Section 16.02.6) provided it is received by 6:00 p.m.

$150 per incident per day s

18 Failure to make Extra Service Tags available to Customers in the manner set out by this Contract (Section 6.09).


19 Failure to begin Collection Service within 7 work days for a new customer account, or receipt of an application for premium backyard Collection, exempt backyard Collection programs or the curbside placement exemption within the time required by Section 6.06.4, which exceeds 20 such failures per calendar quarter


omitted

omitted

22 Failure to provide delivery of compost within the times required by (Section 12.09).


23 Failure to maintain Collection vehicles pursuant to Article 14.




24 Failure to mark and label Carts, Bins and Roll-Off Boxes; to inspect, clean and maintain metal Bins, Compactors or Roll-Off Boxes in a clean and sanitary manner which exceeds 100 such failures annually (Section 6.06.1, 6.06.2, 6.06.3, and 14.10).


25 Failure to meet vehicle noise requirements (Section 14.06).


omitted

27 Commingling Mixed Materials, Organic Materials, or Recyclable Materials with other material types prior to delivery to the designated processing facility, except as permitted in the Contract (Section 6.14).

$500 per incident

28 Failure to ensure that a vehicle operator is properly licensed (Section 33.01.4).


29 Failure to maintain office and call center hours as required by this Contract (Section 15.01).


30 Failure to maintain Collection hours and days as required by this Contract (Section 6.02).


31 Failure to have CONTRACTOR personnel in proper uniform (Section 33.01.3).


32 Failure to repair damage or compensate CITY for damage to CITY property, including all City structures, public roadways and sidewalks caused by CONTRACTOR or its personnel (Section 26.12).

$500 per incident

33 Changing Collection day often (10) percent or more of the Service Addresses on a Residential Route without proper authorization by the Contract Manager and proper notification to the Service Addresses (Section 13.02).

$5,000 per route per incident

34 Failure to provide adequate primary and alternate capacity to accept and process Mixed Materials, Recyclable Materials or Organic Materials (Sections 6.12.3, 6.12.4 and 6.12.5).

$500 per day

35 Failure to provide a transfer station or Processing facility for City Delivered Materials (Section 12.07).

$500 per day

36 Failure to respond timely to CITY requests for services or information (Section 22.02).

$150 per incident

37 Disposal of Recyclable Materials or Organic Materials in the Disposal Facility without first obtaining the required permission of CITY (Sections 6.12.4 and 6.12.5).

$1,000 per load


Page 68


38 Failure to deliver any Collected materials to CITY approved Disposal Facility, Mixed Materials Processing Facility, Materials Recovery Facility, or Organic Materials Processing Facility, as appropriate, except as othen/vise expressly provided in this Contract (Sections 6.12.3, 6.12.4, and 6.12.5).

$5,000 per load

omitted

40 Failure or neglect to complete at least ninety percent (90%) of each route on the regular scheduled Collection day (Sections 9.01.2, 10.01.1, 11.01.2 and 12.01.3).

$1,000 for each route not completed

41 Transferring loads on CITY streets except as othenwise expressly provided in this Contract (Section 6.03).

$150 per incident

42 Failure to provide Customers the payment methods for billings in the manner set out in this Contract (Section 7.11).


43 Failure to provide Mayor and City Council Roll-Off Box within 10 calendar days of a request by the Mayor or Council Office (Section 12.03.2). * -


44 Changing the Collection day of less than ten (10) percent of the Service Addresses on a Residential Collection route without proper notification to Service Addresses and Contract Manager, as appropriate (Section 13.02.1).

$500 per route per day

45 Failure to conduct route audits and report results to CITY in a timely manner (Section 13.04).

$150 per audit per day

46 Failure to maintain the capability of responding to telephone calls in English, Chinese (Cantonese), Vietnamese, Spanish, and such other languages as reasonably may be directed by CITY and TDD Services at all times (Section 16.04).

$150.00 per day

^y

•.• •' . •' 47 Failure to comply with the public outreach standards in the manner set out in Sections 7.01.2 - 17.09.

. _ " 6 ' . - - ' , . . • - . 1

$150.00 per incident per day for time-related standards

$5,000 per incident for other standards not time-related



48 Exclusive of and not in addition to or duplicative of other specific Liquidated Damages listed herein, the failure to cure non-compliance with the provisions of this Contract in the manner and time set forth in the Contract (Various Sections).

$150.00 per incident per day

49 Failure to comply with 50% local hire preference for Oakland residents provision for new employees (Article 55) herein.

$5000 per position annually

omitted

omitted

omitted

53 Failure to comply with worker retention requirements $5000 per position

2883 22.05 Liquidated damages shall apply to service disruptions caused by a 2884 CONTRACTOR-initiated lockout or similar CONTRACTOR-initiated work stoppage.

2885 22.06 Procedure for Review of Liguidated Damages Before assessing liquidated 2886 damages pursuant to Items 1, 6, 25, 32, 34, 35, 36, 41, 45, 47, 48, 49, and 53 of this Article 22, 2887 the CITY and CONTRACTOR shall meet and confer regarding these specific areas of 2888 substandard performance. If, despite such meeting, incidents of the type(s) addressed at the 2889 meeting continue to occur, the CITY may proceed to assess liquidated damages as provided 2890 above. The Contract Manager may assess liquidated damages pursuant to this Article 22 on a 2891 monthly basis. However, liquidated damages may only be assessed if CONTRACTOR is 2892 notified of the event within sixty (60) days of the City's knowledge of its occurrence. Prior to 2893 assessing liquidated damages, CITY shall give the CONTRACTOR written notice of its intention 2894 to do so ("Notice of Assessment"). The notice shall include a description of the event of non-2895 performance. The CONTRACTOR may review and make copies (at its own expense) of all non-2896 confidential information in the CITY's possession relating to the event of non-performance. 2897 During the first 90 days of the Contract, the CITY agrees not to assess liquidated damages due 2898 to challenges which may occur during implementation of the new Contract. If in the future there 2899 shall be an implementation period required to commence a new level or type of service, the 2900 CITY and CONTRACTOR agree to discuss a similar suspension of liquidated damages for a 2901 specified period of time.

2902 22.06.1 The assessment shall become final unless, within thirty (30) 2903 calendar days of the date of the Notice of Assessment, CONTRACTOR provides a written 2904 request for a meeting with the Contract Manager to present evidence that the assessment 2905 should not be made.

2906 22.06.2 The Contract Manager shall schedule a meeting between 2907 CONTRACTOR and the CITY Administrator or the CITY Administrator's designee as soon as 2908 reasonably possible after timely receipt of CONTRACTOR'S request.

2909 > 22.06.3 The CITY Administrator or the CITY Administrator's designee shall 2910 review CONTRACTOR'S evidence and render a decision sustaining or reversing the liquidated 2911 damages as soon as reasonably possible after the meeting. Written notice of the decision shall 2912 be provided to CONTRACTOR.

2913 22.06.4 In the event CONTRACTOR does not submit a written request for 2914 a meeting within thirty (30) calendar days of the date of the Notice of Assessment, the Contract

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/ CITY f OF O A K L A N D


2915 Manager's determination shall be final and CONTRACTOR shall submit payment to CITY no 2916 later than fifteen (15) calendar days following final determination. At the sole option of CITY, if 2917 monies are owed to CONTRACTOR, CITY may deduct the liquidated damages from the letter of 2918 credit required by Section 24.03 of this Contract.

2919 22.06.5 CITY'S assessment or Collection of liquidated damages shall not 2920 prevent CITY from exercising any other right or remedy, including the right to terminate this 2921 Contract, for CONTRACTOR'S failure to perform the work and services in the manner set forth 2922 in this Contract.

2923 ARTICLE 23. BILLING AUDIT AND PERFORMANCE REVIEWS 2924 23.01 Billing Audit and Performance Review.

2925 23.01.1 Selection and Cost. CITY may conduct two (2) billing audit and 2926 performance reviews ("review") of CONTRACTOR'S performance during the initial term of this 2927 Contract. The review will be performed by a qualified firm under contract to CITY. CITY shall 2928 have the final responsibility for the selection of the firm but shall seek and accept comments and 2929 recommendations from CONTRACTOR. CONTRACTOR shall be responsible for the cost of 2930 the reviews up to a maximum of One Hundred Fifty Thousand Dollars ($150,000) per review.

2931 23.01.2 Purpose. The review shall be designed to meet the following 2932 objectives.

2933 23.01.2.1 Verify that Customer billing rates have been properly 2934 calculated and they correspond to the level of service received by the Customer.

2935 23.01.2.2 Verify that franchise fees, and other charges required 2936 under this Contract have been properly calculated and paid to CITY. •

2937 • •' .••V' 23.01.2.3 Verify CONTRACTOR'S compliance with the reporting 2938 requirements and performance standards of the Collection Services Contract.

2939 23.01.2.4 Verify the Diversion percentages reported by 2940 CONTRACTOR.

2941 23.01.3 CONTRACTOR'S Cooperation. CONTRACTOR shall cooperate 2942 fully with the review and provide all requested data othenwise required to be provided under this 2943 Contract, including certain operational data, financial data and other data requested by CITY 2944 within thirty (30) calendar days. Failure of CONTRACTOR to cooperate or provide the 2945 requested documents in the required time shall be considered an event of default.

2946 23.02 CITY Reguested Program Review. CITY reserves the right to require 2947 CONTRACTOR to periodically conduct reviews of the SFD, MFD, Commercial, and CITY 2948 Collection Services programs to assess performance indicators, including but not limited to: 2949 average volume of Recyclable Materials per setout per Service Address , average volume of 2950 Organic Materials per setout per Service Address, Collection Services participation levels, 2951 contamination levels, etc. Prior to the program review, CITY and CONTRACTOR shall meet to 2952 discuss the purpose of the review and the method, scope, time frame for completion and data to 2953 be provided by CONTRACTOR. CONTRACTOR shall then prepare and submit to the Contract 2954 Manager a written program review plan for review and approval. The Contract Manager shall 2955 review and, to the extent necessary at the sole discretion of CITY, modify the program review 2956 plan, and return it to CONTRACTOR for implementation.

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2957 23.03 Cooperation with Other Program Reviews. If CITY wants to collect program 2958 data, perform field work, conduct route audits to investigate Service Recipient participation 2959 levels and setout volumes and/or evaluate and monitor program results related to Mixed 2960 Materials, Garbage, Recyclable Materials and Organic Materials Collected in the Service Area 2961 by CONTRACTOR, CONTRACTOR shall cooperate with CITY or its agent(s), including 2962 StopWaste.Org. CONTRACTOR shall also cooperate with any waste generation studies 2963 conducted by CITY or its agent(s).

2964 23.04 Waste Generation and Characterization Studies. CONTRACTOR acknowledges 2965 that CITY must perform waste generation and characterization studies periodically to comply 2966 with AB 32, AB 341 and AB 939 requirements. CONTRACTOR agrees to participate and 2967 cooperate with CITY and its agents, including StopWaste.Org and to perform studies and data 2968 Collection exercises, as needed, to determine weights, volumes and composition of materials 2969 generated. Disposed, transformed, Diverted or otherwise processed to comply with AB 32, AB 2970 341 and AB 939.

2971 V ARTICLE 24. PERFORMANCE SECURITY 2972 24.01 Performance Bond. A performance bond must be furnished by CONTRACTOR 2973 within fifteen (15) calendar days of notification to CONTRACTOR that that the Contract has 2974 been executed. CONTRACTOR shall furnish to CITY, and keep current, a performance bond in 2975 a form and with language that is acceptable to CITY, for the faithful performance of this Contract 2976 and all obligations arising hereunder in an amount of Seven Million Dollars ($7,000,000).

2977 24.02 Renewal. Beginning Ju l y l , 2016, and each April 1 thereafter, CONTRACTOR 2978 shall have the performance bond renewed annually and executed by a surety company that is 2979 acceptable to CITY; an admitted surety company licensed to do business in the State of 2980 California; has an "A:Vir' or better rating by A. M. Best or Standard and Poor's; and is included 2981 on the list of surety companies approved by the Treasurer of the United States.

2982 •* 24.03 Letter of Credit. As an alternative to the performance bond required by Section 2983 24.01, at CITY'S option, CONTRACTOR may deposit with CITY an irrevocable letter of credit in 2984 an amount as set forth in Section 24.01. If allowed, the letter of credit must be issued by an 2985 FDIC insured banking institution chartered to do business in the state of California, consistent 2986 with the Uniform Customs and Practice for Documentary Credits, then current revision or similar 2987 uniform convention approved by CITY in CITY'S name, and be callable at the discretion of 2988 CITY. Nothing in this Article shall, in any way, obligate CITY to accept a letter of credit in lieu of 2989 the performance bond.

2990 * ARTICLE 25. INSURANCE ? 2991 25.01 Insurance Policies. CONTRACTOR shall secure and maintain throughout the 2992 term of this Contract, at CONTRACTOR'S own cost and expense, insurance against claims for 2993 injuries to persons or damages to property, which may arise from or in connection with 2994 CONTRACTOR'S performance of work or services under this Contract. CONTRACTOR'S 2995 performance of work or services shall include performance by CONTRACTOR'S employees, 2996 agents, representatives and subcontractors.

2997 25.02 Minimum Scope of Insurance. Insurance coverage shall be at least this broad:

Page 72



2998 25.02.1 Commercial General Liability: Insurance Services Office (ISO) 2999 Occurrence Form CG 0001 or, if approved by CITY, Claims Made Form No. CGO 0002. 3000 Automobile Liability: Insurance Services Office Form No. CA 0001, code 1 "any auto."

3001 25.02.2 Workers' Compensation Insurance as required by the State of 3002 California and Employers Liability Insurance.

3003 25.02.3 Hazardous Waste and Environmental Impairment Liability

3004 Insurance. ^ „ .

3005 25.02.4 Crime Insurance for Employee Theft.

3006 25.02.5 Minimum Limits of Insurance. CONTRACTOR shall maintain 3007 insurance limits no less than: 3008 25.02.6 Commercial General Liability: Twenty Million Dollars 3009 ($20,000,000) each occurrence, including products and completed operations coverage.

3010 25.02.6.1 Coverage afforded on behalf of the CITY, 3011 Councilmembers, directors, officers, agents, employees and volunteers shall be primary 3012 insurance, but only as respects the services provided by CONTRACTOR under this Contract. 3013 Any other insurance available to the City, Councilmembers, directors, officers, agents, 3014 employees and volunteers under any other policies shall be excess insurance (over the 3015 insurance required by this Contract).

3016 f 25.02.7 Automobile Liability: Ten Million Dollars ($10,000,000) combined 3017 single limit per accident for bodily injury and property damage.

3018 25.02.8 Workers' Compensation and Employers Liability: Workers' 3019 Compensation insurance as required by the State of California, with statutory limits, and 3020 Employers Liability insurance with limits not less than Two Million Dollars ($2,000,000) each 3021 accident. Two Million Dollars ($2,000,000) policy limit bodily injury by disease, and Two Million 3022 Dollars ($2,000,000) each employee bodily injury by disease.

3023 25.02.9 Hazardous Waste and Environmental Impairment Liability: Ten 3024 Million Dollars ($10,000,000.00) each occurrence covering liability arising from the release of 3025 waste materials and/or irritants, contaminants or pollutants. Hazardous Waste and 3026 Environmental Impairment Liability will include coverage for all operations of CONTRACTOR, 3027 and include all owned, landfills or waste disposal sites and transfer stations. If coverage is on a 3028 Claims Made basis, the retroactive date must be shown, and must be before the date of the 3029 Contract or the beginning of Contract work. Insurance must be maintained and evidence of 3030 insurance must be provided for at least five (5) years after completion of the Contract of work. 3031 If coverage is cancelled or non-renewed, and not replaced with another claims made policy form 3032 with a retroactive date prior to the contract effective date, CONTRACTOR must purchase 3033 "extended reporting" coverage for a minimum of five (5) years after completion of work. CITY, 3034 its Councilmembers, directors, officers, agents, employees and volunteers are to be covered as 3035 additional insureds with respect to liability arising from the release of waste materials and/or 3036 irritants, contaminants or pollutants. Such coverage shall, if commercially available without 3037 involvement of CITY, automatically broaden in its form of coverage to include legislated 3038 changes in the definition of waste material and/or irritants, contaminants or pollutants.

3039 25.02.10 Crime Insurance for Employee Theft. Five Hundred Thousand 3040 Dollars ($500,000) per loss coverage.

City of Oakland " ' ' Page 73


3041 25.03 Deductibles and Self-Insured Retention. Any deductibles or self-insured 3042 retention shall be for the account of CONTRACTOR and shall be paid entirely by 3043 CONTRACTOR without any contribution from CITY.

3044 25.04 Endorsements. The liability policies are to contain, or be endorsed to contain, 3045 the following provisions:

3046 25.04.1 CITY, its Councilmembers, directors, officers, employees, agents 3047 and volunteers are to be covered as additional insureds with respect to liability arising out of 3048 automobiles owned, leased, hired or borrowed by or on behalf of CONTRACTOR; products and 3049 completed operations of CONTRACTOR; liability arising out of work or operations performed by 3050 or on behalf of CONTRACTOR, including material parts or equipment furnished in connection 3051 with such work or operations; and with respect to Hazardous Waste, Pollution and/or 3052 Environmental Impairment Liability.

3053 25.04.2 CONTRACTOR'S insurance coverage shall be primary insurance 3054 as respects CITY, its officers, officials, employees, agents and volunteers but only as respects 3055 the services provided by CONTRACTOR under this Contract. Any insurance or self-insurance 3056 maintained by CITY, its officers, officials, employees, agents or volunteers shall be excess of 3057 CONTRACTOR'S insurance and shall not contribute with it.

3058 25.04.3 CONTRACTOR'S insurance shall apply separately to each 3059 insured against whom claim is made or suit is brought, except with respect to the limits of the 3060 insurer's liability. v ' ' ' '

3061 25.04.4 The limits of insurance are the minimum required limits and if 3062 CONTRACTOR maintains higher limits, CITY shall be entitled to coverage for the higher limits 3063 maintained by CONTRACTOR.

3064 25.04.5 The Automobile Liability policy shall be endorsed to delete the 3065 Pollution and/or the Asbestos exclusion, or documentation that CONTRACTOR carries 3066 environmental pollution liability coverage for solid waste transported by CONTRACTOR. The 3067 Automobile Liability policy shall also be endorsed to add the Motor Carrier act endorsement 3068 (MCS-90) TL 1005, TL 1007 and /or other endorsements required by federal or state authorities.

3069 25.05 Waiver of Subrogation. CONTRACTOR hereby agrees to waive subrogation 3070 which any insurer of CONTRACTOR may acquire from CONTRACTOR by virtue of the payment 3071 of any loss. CONTRACTOR agrees to obtain any endorsement that may be necessary to effect 3072 this waiver of subrogation. The Workers' Compensation policy shall be endorsed with a waiver 3073 of subrogation in favor of CITY for all work performed by CONTRACTOR, its employees, agents 3074 and subcontractors.

3075 25.06 Cancellation. Each insurance policy required by this clause shall be occurrence-3076 based or an alternate form as approved by CITY and endorsed to state that coverage shall not 3077 be cancelled by either party, except after sixty (60) days' prior written notice has been given to 3078 CITY. CONTRACTOR shall provide at least sixty (60) days' written notice to CITY, by certified 3079 mail, return receipt requested, of any insurance policy required hereunder being suspended, 3080 voided, or reduced in coverage or limits. Any failure to comply with reporting provisions of the 3081 policies shall not affect CONTRACTOR'S obligations to CITY, its officers, officials, employees, 3082 agents or volunteers.

3083 25.07 Claims Made Coverage. If General Liability or Hazardous Waste and 3084 Environmental Impairment Liability coverage is written on a claims-made from:

Page 74 CITY f OF O A K L A N D


3085 25.07.1 The "Retro Date" must be shown, and must be before the date of 3086 the contract or the beginning of contract work.

3087 25.07.2 Insurance must be maintained and evidence of insurance must be 3088 provided for at least five (5) years after completion of the contract of work.

3089 25.07.3 If coverage is canceled or non-renewed, and not replaced with 3090 another claims-made policy form with a "Retro Date" prior to the contract effective date, 3091 CONTRACTOR must purchase "extended reporting" coverage for a minimum of five (5) years 3092 after completion of contract work.

3093 25.07.4 A copy of the claims reporting requirements must be submitted to 3094 CITY for review.

3095 25.08 Acceptability of Insurers. Insurance is to be placed with insurers admitted to 3096 transact business in California with a current A.M. Best's rating of no less than A:VII. If pollution 3097 and/or Environmental Impairment and/or errors and omission coverage are not available from 3098 an admitted" insurer, the coverage may be written with CITY's permission, by a non-admitted 3099 insurance company. A Non-admitted company should have an A.M. Best's rating of A:X or 3100 higher. ? •

3101 25.09 Verification of Coverage. CONTRACTOR shall furnish CITY with original 3102 certificates and amendatory endorsements effecting coverage required by this clause. All 3103 certificates and endorsements are to be received and approved by CITY before work 3104 commences. However, failure to obtain the required documents prior to the work beginning 3105 shall not waive CONTRACTOR'S obligation to provide them. CITY reserves the right to require 3106 complete copies of all required insurance policies, including endorsements required by these 3107 specifications, at any time. Such documents shall remain confidential.

3108 25.10 Subcontractors. CONTRACTOR shall include all subcontractors as insureds 3109 under its policies or require and verify that all subcontractors maintain insurance meeting all the 3110 requirements of this contract.

3111 . • 25.10.1 Proof of insurance shall be mailed to the following address or any 3112 subsequent address as may be directed in writing by CITY.

3113 . Contract Manager 3114 ' . Environmental Services Division, PWA 3115 ; 250 Frank Ogawa Plaza, Suite 5301 . -3116 Oakland, CA 94612 ' 3117 25.11 Modification of Insurance Reguirements. The insurance requirements provided 3118 in this Contract may be modified or waived by CITY, in writing, upon the request of 3119 CONTRACTOR if CITY determines such modification or waiver is in the best interest of CITY 3120 considering all relevant factors, including exposure to CITY.

3121 i ' ARTICLE 26. INDEMNIFICATION 3122 26.01 Indemnification of CITY. CONTRACTOR shall defend, with counsel acceptable 3123 to CITY, indemnify and hold harmless, to the fullest extent allowed by law, CITY, its officers, 3124 officials, employees, volunteers agents and assignees (indemnitees)), from and against any and 3125 all loss, liability, penalties, forfeitures, claims, demands, actions, proceedings or suits, in law or 3126 in equity, of every kind and description, (including, but not limited to, injury to and death of any 3127 person and damage to property, or for contribution or indemnity claimed by third parties) arising 3128 or resulting from or in any way connected with: (i) the operation of CONTRACTOR, its agents.

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V Mixed Materials and Organics Collection Services Contract 9/19/14

3129 employees, contractors, and/or subcontractors, in exercising the privileges granted to it by this 3130 Contract; (ii) the failure of CONTRACTOR, its agents, employees, contractors, and/or 3131 subcontractors to comply in all respects with the provisions and requirements of this Contract, 3132 applicable laws, ordinances and regulations, and/or applicable permits and licenses; and (iii) the 3133 acts of CONTRACTOR, its agents, employees, contractors, and/or subcontractors in performing 3134 services under this Contract for which strict liability is imposed by law. The foregoing indemnity 3135 shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, action, suit injury, 3136 death or damage is also caused in part by any of the indemnitees' negligence. Notwithstanding 3137 anything to the contrary in this Contract, the indemnity obligations of CONTRACTOR shall not in 3138 any way extend to indemnifying and/or defending the CITY or any other indemnitees for any 3139 claim, liability, damages, liens, penalties, or any costs or obligations whatsoever arising from, or 3140 related to, the CITY's setting of rates or fees under this Contract or in connection with 3141 Proposition 218, Article XIIIC and Article XIIID ofthe California Constitution.

3142 26.02 Contractor Indemnity Regarding City Approvals. To the maximum extent 3143 permitted by law, CONTRACTOR shall defend (with counsel reasonably acceptable to the City), 3144 indemnify, and hold harmless the CITY, the Oakland City Council, and their respective agents, 3145 officers, employees and volunteers (hereafter collectively called "City Parties") from any liability, 3146 damages, claim, judgment, loss (direct or indirect) action, causes of action, or proceeding 3147 (including legal costs, attorneys' fees, expert witness or consultant fees. City Attorney or staff 3148 time, expenses or costs) (collectively called "Action") against the CITY to set aside, void or 3149 annul this Agreement or any City Approvals approved concurrently herewith or any Subsequent 3150 Approval or the implementation of the same based upon an allegation that the City shall have 3151 failed to comply with the California Environmental Quality Act. The CITY may elect, in its sole 3152 discretion, to participate in the defense of said Action, and CONTRACTOR shall reimburse the 3153 CITY for its reasonable legal costs and attorneys' fees. CONTRACTOR shall not be obligated to 3154 reimburse CITY for attorneys' fees paid to outside counsel in such defense.

3155 26.02.1 Within ten (10) calendar days of the filing of any Action as 3156 specified in the preceding paragraph, CONTRACTOR shall execute a Joint Defense Letter 3157 Agreement with the CITY, acceptable to the Office of the City Attorney, which memorializes the 3158 above obligations. These obligations and the Joint Defense Letter of Agreement shall survive 3159 termination, extinguishment, or invalidation of the City Approval or any Subsequent Approval 3160 requested by CONTRACTOR. Failure to timely execute the Letter Agreement does not relieve 3161 the CONTRACTOR of any of the obligations contained in this Section or other requirements or 3162 Conditions of Approval that may be imposed by the CITY.

3163 26.03 Contractor Cooperation. In the event there is a legal challenge by a third party to 3164 the City's award of the MM&O Contract, CONTRACTOR agrees to cooperate with the CITY in 3165 the defense of such a challenge to the extent CITY's and CONTRACTOR'S respective legal 3166 positions are not in conflict. As a condition of the acceptance of the award of the MM&O 3167 Contract, CONTRACTOR agrees to waive any claims it may have against the CITY pertaining 3168 to any issues arising from and/or related to the Zero Waste Services procurement process 3169 regarding the MM&O Contract award.

3170 26.04 CONTRACTOR'S Obligation Not Excused. CONTRACTOR'S obligation to 3171 defend, hold harmless, and indemnify shall not be excused because of CONTRACTOR'S 3172 inability to evaluate liability or because CONTRACTOR evaluates liability and determines that 3173 CONTRACTOR is not liable to the claimant. CONTRACTOR must respond within thirty (30) 3174 days to the tender of a claim for defense and indemnity by CITY, unless this time has been 3175 extended by CITY. If CONTRACTOR fails to accept or reject a tender of defense and indemnity 3176 within thirty (30) days, in addition to any other remedy authorized by law, so much of any money



3177 due CONTRACTOR by virtue of this Contract as shall reasonably be considered necessary by 3178 CITY, may be retained by CITY as an offset against its costs and damages until final disposition 3179 has been made or the claim or suit for damages, or until CONTRACTOR accepts or rejects the 3180 tender of defense, whichever occurs first.

3181 With respect to third party claims against CONTRACTOR, CONTRACTOR waives any and all 3182 rights of any type to express or implied indemnity against the Indemnities. -. 5* .

3183 26.05 Hazardous Substances Indemnification. CONTRACTOR shall indemnify, defend 3184 with counsel acceptable to CITY, protect and hold harmless CITY, its officers, officials, 3185 employees, agents, assigns and any successor or successors to CITY'S interest from and 3186 against all claims, damages (including but not limited to special, consequential, natural 3187 resources and punitive damages) injuries, hazardous materials response mediation and 3188 removal costs, losses, demands, liens, liabilities, causes of action, suits, legal or administrative 3189 proceedings, interest, fines, charges, penalties, attorney's fees for the adverse party and 3190 expenses (including but not limited to attorney's and expert witness fees and costs incurred in 3191 connection with defending against any of the foregoing or enforcing this indemnity) of any kind 3192 whatsoever paid, incurred or suffered by, or asserted against CITY or its officers, officials, 3193 employees, agents, assigns, or contactors arising from or attributable to acts or omissions of 3194 CONTRACTOR, or its agents, including but not limited to any repair, cleanup or detoxification, 3195 or preparation and implementation of any removal, remedial, response, closure and post-3196 closure or other plan (regardless of whether undertaken due to governmental action) concerning 3197 any hazardous substance or hazardous wastes at any place where CONTRACTOR transports, 3198 stores, or Disposes of Mixed Materials pursuant to this Contract. The foregoing indemnity is 3199 intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 U.S.C. section 3200 9607(c) and California Health and Safety Code section 25364, to defend insure, protect, hold 3201 harmless and indemnify CITY from liability.

3202 26.05.1 This provision is in addition to all other provisions in this Contract 3203 and is intended to survive the end of the term of this Contract. CONTRACTOR'S Guaranty shall 3204 extend to the indemnification obligation hereunder.

3205 26.06 Maximum Service Rates.

3206 26.06.1 Consistent with the limitations provided by Public Resources Code 3207 section 40059.2 and the obligations of CONTRACTOR set forth above, the following provisions 3208 are intended to address issues of defense and acceptance of the tender of defense and 3209 indemnity by CITY in the event that CITY and/or CONTRACTOR are named in any lawsuit (a) 3210 challenging the CITY's setting of Maximum Service Rates for Collection Services under this 3211 Contract, (b) impacting the ability of CONTRACTOR to collect or retain up to the Maximum 3212 Service Rates for Collection Services, and/or (c) in connection with the application of the 3213 California Constitution to the imposition, payment, or collection of Maximum Service Rates and 3214 charges for services provided by CONTRACTOR under this Contract ("Maximum Service Rates 3215 Lawsuit"). . *

3216 26.06.2 In the event of a Maximum Service Rates Lawsuit, CITY shall 3217 actively defend such lawsuit, and CONTRACTOR agrees to cooperate with CITY to the extent 3218 practical and/or necessary. CONTRACTOR and CITY further agree to toll, during the pendency 3219 of any Maximum Service Rates Lawsuit, all cross claims against each other which are 3220 inconsistent with the Contract, including, but not limited to the tolling of any claim filed under the 3221 California Government Code. CONTRACTOR shall have no obligation to defend any lawsuit 3222 based on the Maximum Service Rates or that otherwise addresses any portion of the rates 3223 proposed by CONTRACTOR or the award of the Contract by CITY. In the event said lawsuit

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,i - * Mixed Materials and Organics Collection Services Contract 9/19/14

3224 results in the reduction or elimination of any portion of the proposed rates by CONTRACTOR, 3225 the remedies set forth in the provisions below shall apply.

3226 26.06.3 Nothing in this Section is intended to imply that any action of CITY 3227 or CONTRACTOR with regard to adoption, imposition or collection of Maximum Service Rates 3228 is violative of any laws, regulations or Constitutional provisions. These provisions are merely 3229 intended as a statement of an agreed upon process for defense and allocation of risks between 3230 CITY and CONTRACTOR in the event of a Maximum Service Rates Lawsuit, regardless of the 3231 merit or lack of merit of any of the claims set forth therein.

3232 ' 26.07 Environmental Indemnification. CONTRACTOR shall indemnify, defend with 3233 counsel acceptable to CITY, and hold harmless, at CONTRACTOR'S sole cost and expense, 3234 CITY, its City Council, officers, officials, employees, volunteers and agents, and the Collection 3235 Contractor (collectively, "Indemnitees") from and against any and all claims, damages, injuries, 3236 costs (including and without limit any and all response, remediation and removal costs), losses, 3237 demands, debts, liens, liabilities, causes of action suits, legal or administrative proceedings, 3238 interest, fines, charges, penalties, and expenses (including reasonable attorneys' and expert 3239 witness fees, expenditures for investigation and remediation) and costs of any kind whatsoever, 3240 paid, imposed upon, incurred, or suffered by or asserted against any of the Indemnitees by any 3241 lawsuit brought or threatened, settlement reached, or government hearing, investigation, inquiry, 3242 proceeding, or order relating to, or arising from, directly or indirectly, CONTRACTOR'S alleged 3243 failure or actual failure to comply with the environmental laws and regulations. This 3244 indemnification will not extend to environmental claims to the extent they are caused by the sole 3245 or joint or contributory negligence or intentional misconduct or omission of CITY, its officers, 3246 employees or agents, or the Collection Contractor(s).

3247 26.07.1 This provision is in addition to all other provisions in this Contract 3248 and is intended to survive the end of the term of this Contract. CONTRACTOR'S Guaranty shall 3249 extend to the indemnification obligation hereunder.

3250 26.08 Separate Counsel. CITY may elect to have separate legal counsel from 3251 CONTRACTOR at any time at its sole discretion, and in such case CONTRACTOR will pay one-3252 half (1/2) of all fees and costs and charges for such separate legal counsel.

3253 26.09 Consideration. It is specifically understood and agreed that the consideration 3254 inuring to CONTRACTOR for the execution of this Contract consists of the promises, payments, 3255 covenants, rights and responsibilities contained in this Contract.

3256 26.10 Obligation. The execution of this Contract by CONTRACTOR shall obligate 3257 CONTRACTOR to comply with the foregoing indemnification provisions; however, the collateral 3258 obligation of providing insurance must also be fully complied with as set forth in Article 25 3259 above.

3260 26.11 Subcontractors. CONTRACTOR shall require all subcontractors to enter into a 3261 contract containing the provisions set forth Sections 26.01, 26.02, 26.03, 26.04, 26.05, 26.06, 3262 26.07, and Article 25 in its entirety and in the preceding subsection in which contract the 3263 subcontractor fully indemnifies CITY in accordance with this Contract.

3264 26.12 Exception. Notwithstanding Sections 26.01, 26.02 and 26.03, CONTRACTOR'S 3265 obligation to indemnify, hold harmless and defend CITY, its officers and employees pursuant to 3266 this Article 26 shall not extend to any loss, liability, penalty, claim, damage, action or suit to the 3267 extent caused by or based on the acts or omissions constituting willful misconduct or active 3268 negligence on the part of CITY or any other indemnitee. This section is not intended to modify in 3269 any way the parties' respective rights and obligations under Section 26.05.

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3270 26.13 Damage by CONTRACTOR. If CONTRACTOR'S employees or subcontractors 3271 cause any injury, damage or loss to CITY property, including but not limited to CITY streets or 3272 curbs, CONTRACTOR shall reimburse CITY for CITY'S cost of repairing such injury, damage or 3273 loss. Such reimbursement is not in derogation of any right of CITY to be indemnified by 3274 CONTRACTOR for any such injury, damage or loss. With the prior written approval of CITY, 3275 CONTRACTOR may repair the damage at CONTRACTOR'S sole cost and expense.

3276 . ARTICLE 27. DEFENSE OF CONTRACTOR'S RIGHTS 3277 " 27.01 When either CITY or CONTRACTOR determines in their reasonable discretion 3278 that there are infringements of CONTRACTOR'S rights under this Contract, CITY shall take all 3279 commercially reasonable actions necessary to prevent the infringement, including legal actions. 3280 If requested by CITY, CONTRACTOR shall, with counsel reasonably acceptable to CITY, 3281 assume the prosecution necessary to enforce such rights, and, shall defend, with counsel 3282 reasonably approved by the CITY, indemnify and hold harmless CITY, its employees and 3283 officials, against any and all claims arising out of CITY'S performance under this Article 27. 3284 CITY will fully cooperate with CONTRACTOR in prosecuting and defending CONTRACTOR'S 3285 exclusive Contract rights. CONTRACTOR shall reimburse CITY within thirty (30) days of receipt 3286 of an invoice, for all actual, reasonable costs associated with defense of Contract rights 3287 (including, but not limited to, CITY staff and CITY Attorney time, including applicable CITY 3288 overhead allocations, and outside consultants, including attorney fees and costs).

3289 ' 27.02 CITY and CONTRACTOR believe that it is in the best interests of CITY to ensure 3290 that Mixed Materials and Organics are not collected by third parties in violation of the City's 3291 Municipal Code and CONTRACTOR'S exclusive rights under this Contract and that all 3292 appropriate steps should be taken within the parties' power to eliminate the occurrence of such 3293 violations within CITY. Accordingly, the CITY shall consider, in its discretion, revisions to the 3294 Municipal Code, in sufficient time for them to become effective on or before July 1, 2015, that to 3295 the extent permitted by law, would make unlawful the placement of containers and/or provision 3296 of services for the collection of Mixed Materials or Organics within CITY that are not authorized 3297 by the CITY and would, among other things, authorize CITY to impound such containers after 3298 notice to the violator. The proposed revisions shall give the City Administrator the ability to 3299 delegate the authority to impound such containers to CONTRACTOR. In the event such 3300 revisions are adopted, the City Administrator will delegate such authority to CONTRACTOR in 3301 such circumstances he or she deems appropriate, consistent with the first sentence of this 3302 section. Any actions taken by CONTRACTOR pursuant to the delegation shall be at 3303 CONTRACTOR'S sole risk.

3304 1 ARTICLE 28. OBLIGATION TO PROVIDE SERVICE 3305 • • 28.01 CITY and CONTRACTOR agree, as more fully set forth in the Recitals to this 3306 Contract, that proper Collection of Mixed Materials and Organic Materials is fundamental to the 3307 protection of the public health, safety and the well-being of the residents of CITY. CITY'S 3308 responsibility for ensuring the adequacy of these sanitation services in part provides the 3309 justification for the granting of an exclusive franchise to CONTRACTOR. This exclusive grant 3310 creates an obligation, subject to the terms and conditions of the Contract, that Collection 3311 Services are continued to be provided even under difficult or adverse circumstances, such as 3312 but not limited to, natural disaster, labor unrest, and any period where legal actions impact the 3313 effectiveness of portions of this Contract.

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3314 28.02 Specifically, with reference to any Maximum Service Rates Lawsuit as defined in 3315 Section 26.04, such legal actions shall not be considered a change in law or force majeure 3316 event excusing CONTRACTOR'S performance, except as otherwise excused as set forth 3317 below. • .. • - * A

3318 .- » 28.02.1 During the pendency of any such litigation, and in the event a court of 3319 competent jurisdiction or other regulatory agency sets aside, invalidates or stays all or a portion 3320 of the Maximum Service Rates, then CITY and CONTRACTOR agree to undertake the 3321 following:

3322 ' 28.02.1.1 CITY and CONTRACTOR agree to immediately meet and 3323 confer to negotiate in good faith any modifications to CONTRACTOR'S obligations under this 3324 Contract to ensure provision of basic Collection Services and enable CONTRACTOR to 3325 continue to bill and collect for the ongoing cost of services, including its return on capital and 3326 costs of operations. Nothing in this Contract, including those provisions relating to the CITY's 3327 regulation of Maximum Service Rates, shall be read to limit CONTRACTOR'S right to bill and 3328 collect for the cost of continuing provision of Collection Service.

3329 28.02.1.2 CONTRACTOR shall provide basic Collection Services. 3330 For the purposes of this Article 28, basic Collection Services are those minimum services 3331 necessary to protect human health and the environment within the CITY as agreed to by and 3332 between CITY and CONTRACTOR. In the event CITY and CONTRACTOR are unable to agree 3333 on basic Collection Services within a period not to exceed two weeks from that date on which a 3334 court of competent jurisdiction or other regulatory agency with authority reduces Maximum 3335 Service Rates, CONTRACTOR shall have the authority to make adjustments in services to 3336 mitigate against any revenue impacts resulting from a Maximum Service Rates lawsuit. 3337 CONTRACTOR shall also have the right to implement all lawful "self-help" actions in order to 3338 receive payment for providing basic Collection Services. CITY shall continue to provide 3339 nuisance abatement and may also take other urgency actions as necessary to facilitate 3340 CONTRACTOR'S continuation of basic Collection Services and ability to obtain compensation 3341 from Customers therefor. The intent of this provision is to ensure that CONTRACTOR 3342 continues to receive compensation, including its rate of return, consistent with that specified in 3343 the Contract for the level of services provided. If certain services are reduced and/or eliminated 3344 as a result of a Maximum Service Rates Lawsuit, the CITY agrees that during the term of the 3345 elimination of said services it shall not contract with any other company or party to provide these 3346 services and will contract only with CONTRACTOR to restore said services either during or after 3347 the conclusion of the Maximum Service Rates Lawsuit. If CITY finds it necessary to procure 3348 eliminated services, it shall do so from CONTRACTOR at commercially reasonable rates.

3349 28.02.1.3 In connection with providing basic Collection Sen/ices, 3350 CONTRACTOR shall continue to charge Customers for the cost of providing such services. 3351 CONTRACTOR shall, in coordination with CITY, reduce its charges to Customers in an amount 3352 corresponding to any CITY fee or charge set aside, invalidated, or stayed by such court, 3353 regulatory agency, or otherwise agreed to. CONTRACTOR'S reduced charges, to the extent 3354 they correspond to the Maximum Service Rates allowed under this Contract minus any such fee 3355 or charge set aside, are intended to generate revenue to CONTRACTOR not less than 3356 CONTRACTOR'S anticipated return on investment for the applicable calendar year. 3357 CONTRACTOR shall thereafter not be required to remit the amount of any disallowed fee or 3358 charge, provided it is not collected from Customers.

3359 * 28.02.1.4 CONTRACTOR shall not be obligated to refund Customers 3360 for any amount of previously collected fees or charges later set aside or invalidated by a court.

Page 80 CITY l O F O A K L A N D


3361 CONTRACTOR and CITY deem the Maximum Service Rates to fix the actual reasonable cost 3362 of service to Customers as these rates and the escalation methodology set forth in this Contract 3363 are the result of a multi-year open competition for the CITY's franchise Collection Services. Any 3364 CITY fees or charges set aside by any court or the CITY during the pendency of any Maximum 3365 Service Rates Lawsuit shall, to the extent they are collected from Customers, be paid into an 3366 escrow account established by the CITY, which shall be made available for use pursuant to 3367 order of the court, or in the absence of such order to address CONTRACTOR'S losses, if any, 3368 consistent with CITY'S obligations set forth below.

3369 28.02.2 If by virtue of an order by a court of competent jurisdiction, an 3370 order issued by a regulatory agency with authority, or pursuant to or an agreement between 3371 petitioner/plaintiff and CITY that affects all or a portion of the Maximum Service Rates, and this 3372 results in a loss to CONTRACTOR not othenwise recovered through a temporary reduction in 3373 services, CITY shall implement, with CONTRACTOR'S consent, methods to recapture any 3374 losses that CONTRACTOR sustained under this Article 28. Such methods may include an 3375 adjustment in future Maximum Service Rates, a reduction in, or adjustment to, services and/or 3376 other obligations under the Contract, or such other lawful methods which may be agreed to by 3377 CITY and CONTRACTOR. Any method selected shall be designed to produce revenues that 3378 ensure CONTRACTOR fully recoups any and all demonstrated losses within no more than two 3379 years from that date on which Maximum Service Rates were reduced (or within two years 3380 following the trial court's determination in the event of a Maximum Service Rates Lawsuit), or, 3381 by the termination date of said Contract if less than two (2) years remain on the Term. 3382 CONTRACTOR shall have the right to terminate the Contract upon twelve (12) months written 3383 notice after the two (2) year period for recoupment of CONTRACTOR losses has expired, in the 3384 event CONTRACTOR has not been made whole for the demonstrated losses and no 3385 satisfactory agreement to address this shortfall has been reached between CONTRACTOR and 3386 CITY.

3387 28.02.3 Nothing herein is intended to imply that California Constitution 3388 Articles XI11(C) or (D) apply to the Maximum Service Rates provided for under this Contract. 3389 The foregoing paragraphs are merely intended as a contractual allocation of risks in the event of 3390 an unanticipated event affecting the ability to impose or collect Maximum Service Rates. 3391 Furthermore, nothing herein is intended to abrogate CONTRACTOR'S rights under Sections 3392 7.12 and 7.13. , ^

3393 28.03 Service Resumption Protocol (Labor Disruptions). In the event of a Labor 3394 Disruption whereby employees of CONTRACTOR do not perform work for CONTRACTOR at 3395 normally anticipated levels or efficiency which affects the ability of the CONTRACTOR to 3396 provide Collection Services in accordance with this Contract, CONTRACTOR shall comply with 3397 the following provisions, and only for the periods set forth below:

3398 28.03.1 In conjunction with the execution of this Contract CONTRACTOR 3399 shall develop and provide a General Contingency Plan to address CONTRACTOR'S program to 3400 best provide continued service during a Labor Disruption that may significantly interfere with 3401 CONTRACTOR'S ability to provide Collection Services. The Contingency Plan shall be provided 3402 to the City sufficiently in advance for review and acceptance prior to July 1, 2015. From time to 3403 time during the term of this Contract, CONTRACTOR and CITY shall meet to discuss whether 3404 modifications and updates to the General Contingency Plan are needed.

3405 * 28.03.2 Within two (2) hours of notification to CONTRACTOR by labor that 3406 a Labor Disruption has been authorized, CONTRACTOR shall notify the Public Works Director

City of Oakland - ' V : Page 81


3407 and Contract Manager by telephone and or electronic communication and follow up with 3408 confirmation to the CITY Administrator within twelve (12) hours of such notice.

3409 28.03.3 From the outset of any Labor Disruption, CONTRACTOR shall 3410 take all commercially reasonable actions to minimize disruptions to service, focusing initially on 3411 the Collection of putrescible waste to protect public health and safety.

3412 28.03.4 Within three (3) Work Days of notice of a Labor Disruption, if 3413 CONTRACTOR is not providing Collection Services in accordance with normal scheduled pick-3414 ups, CONTRACTOR shall meet with CITY to develop any agreed upon modifications to the 3415 General Contingency Plan which may be required to successfully carry out the plan's objectives.

3416 28.03.5 CONTRACTOR will bring in alternate work forces within three (3) 3417 Work Days of the commencement of a Labor Disruption for the purpose of providing Essential 3418 Collection Services (i.e., collection of putrescible waste as needed and at least once per week 3419 from public facilities, such as hospitals, airports, ports and certain government facilities, where a 3420 failure to so collect would impede critical public services) in accordance with this Contract and to 3421 implement the General Contingency Plan. In this regard, it is recognized that CONTRACTOR 3422 would not be able to provide CITY with priority over other priority type services required in 3423 governmental jurisdictions receiving services from CONTRACTOR and likewise affected by 3424 such Labor Disruption, but other such jurisdictional limits are not to receive priority with regard 3425 to Essential Collection Services over CITY.

3426 28.03.6 In addition to providing Essential Collection Services within three 3427 (3) Work Days of a Labor Disruption, within ten (10) Work Days of a Labor Disruption, 3428 CONTRACTOR shall bring in an alternative work force to provide Basic Collection Services (i.e. 3429 residential and commercial garbage and organics) in accordance with the typical collection 3430 intervals (i.e. weekly, twice weekly) as set forth in this Contract, unless the schedules and 3431 volumes set forth in the General Contingency Plan, as modified with the agreement of CITY, 3432 alter the above. In this regard, CITY is not to receive priority over other governmental 3433 jurisdictions receiving services from CONTRACTOR and likewise affected by such strike, but 3434 other such jurisdictional limits are not to receive priority over CITY with regard to the 3435 promptness and/or quality of service provided to CITY.

3436 28.03.7 Within twelve (12) Work Days of a Labor Disruption, 3437 CONTRACTOR shall provide Bulky Waste Service and provide for active cleanup of any 3438 accumulated waste which has been set out for collection and not properly picked up during the 3439 Labor Disruption. These services shall be in addition to the provision of Essential Collection 3440 Services and Basic Collection Services; however failure to do so shall not be a material breach 3441 of this Protocol.

3442 28.03.8 In the event CONTRACTOR'S alternate work force is unable to 3443 provide Collection Services in accordance with the schedules, volumes and routing set forth in 3444 this Contract, or the schedules, volumes and routing in the General Contingency Plan, CITY 3445 shall have the right, but not the obligation, to bring in outside forces to provide Collection 3446 Services which are not being provided by CONTRACTOR and charge CONTRACTOR for the 3447 reasonable direct and indirect expenses (including administrative and overhead) incurred by 3448 CITY in this regard.

3449 28.03.9 In the event CITY retains its own forces to provide full or partial 3450 Collection Service in accordance with Section 28.03.9 above, CONTRACTOR agrees that the 3451 materials Collected by those forces can be taken directly from CITY to the landfill of 3452 CONTRACTOR at Altamont, California in the event the Davis Street Transfer Station owned by

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Mixed Materials and Organics Collection Services Contract 9/19/14 f. • • - . . } • . .

3453 CONTRACTOR is not operational. In the event neither the CONTRACTOR'S Davis Street 3454 Transfer Station nor Altamont Landfill are operational during the period of such Labor 3455 Disruption, CONTRACTOR agrees that the materials Collected by those forces retained by 3456 CITY can be taken directly from CITY to such other landfill and/or transfer station as selected by 3457 CITY. ........

, . • .A • • • '

3458 28.03.10 If after thirty (30) days from the commencement of a Labor 3459 Disruption there is a continuing CONTRACTOR failure to materially perform the services set 3460 forth in this Section, such failure to perform shall be considered a default under Section 29.01 3461 and CITY may cancel this Contract. In such an event, CITY shall not waive its right to seek 3462 damages from CONTRACTOR for any increase in cost of Collection incurred by CITY as a 3463 result of the breach of this Contract by CONTRACTOR and the consequential election by CITY 3464 to cancel the Contract and move forward with alternate collection alternatives. 3465 28.03.11 CONTRACTOR may not be able to ensure that Organic Materials 3466 are Source Separated from Mixed Materials. Therefore, for the purposes of a Labor Disruption 3467 only, CONTRACTOR may commingle Organic Materials and Mixed Materials during Collection, 3468 and CONTRACTOR shall take commercially reasonable actions to prevent the commingled 3469 Organic Materials from being delivered to any Disposal Facility.

3470 ; 28.03.12 Liguidated Damages for Labor Disruptions

3471 :v. ^ 28.03.12.1 If CONTRACTOR fails to provide Essential Collection 3472 Services within three (3) Work Days of the Labor Disruption or Basic Collection Services within 3473 ten (10) Work Days ofthe Labor Disruption, then CITY may begin to impose liquidated damages 3474 under Section 22.04 for such failure, no earlier than five (5) Work Days for Essential Collection 3475 Services or fifteen (15) Work Days for Basic Collection Services, after CONTRACTOR provides 3476 notice ofthe Labor Disruption to CITY, subject to the limitations in 28.03.14.

3477 28.03.12.2 If CONTRACTOR fails to provide any other services, 3478 including, but not limited to. Bulky Waste Services within twelve (12) Work Days of any Labor 3479 Disruption, then CITY may begin to impose liquidated damages under Section 22.04 for such 3480 failure, no earlier than fifteen (15) Work Days after CONTRACTOR provides notice of the Labor 3481 Disruption to CITY, subject to the limitations in 28.03.14. . _

3482 28.03.13 A claim for liquidated damages may not be sought unless the 3483 Labor Disruption is caused by a dispute between CONTRACTOR and the employees employed 3484 at facilities covered by this Contract. The following limitations shall also apply with regard to 3485 application of liquidated damages:

3486 . 28.03.13.1 In the event the application of the liquidated damage is 3487 conditioned upon CONTRACTOR'S failure to complete a certain percentage of a task, that 3488 percentage shall be multiplied by eighty percent (80%).

3489 28.03.13.2 In the event the application of the liquidated damage is 3490 conditioned upon the number of times CONTRACTOR fails to perform or incorrectly performs a 3491 task, that number shall be divided by eighty percent (80%) and rounded up to the nearest whole 3492 number. , . . ,

3493 28.03.13.3 In the event the application of the liquidated damage is 3494 conditioned upon a single occurrence, the amount of the liquidated damage shall be multiplied 3495 by eighty percent (80%) and rounded up to the nearest whole number.


Mixed Materials and Organics Collection Services Contract 9/19/14 • • • , ... • ' .s.. . • -

3496 ARTICLE 29. DEFAULT OF CONTRACT V ' 3497 29.01 CITY Termination.

3498 29.01.1 CONTRACTOR Events of Default, The following shall be 3499 CONTRACTOR Events of Default, following which the CITY may cancel this Contract (except 3500 as otherwise provided below in this Article), by giving CONTRACTOR thirty (30) calendar days 3501 advance written notice, to be served as provided in Article 45:

3502 29.01.1.1 CONTRACTOR shall take the benefit of any present or 3503 future insolvency statute, or shall make a general assignment for the benefit of creditors, or file 3504 a voluntary petition in bankruptcy (court) or a petition or answer seeking an arrangement for its 3505 reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws or 3506 under any other law or statute of the United States or any state thereof, or consent to the 3507 appointment of a receiver, trustee or liquidator of all or substantially all of its property; or

3508 29.01.1.2 By order or decree of a Court, CONTRACTOR shall be 3509 adjudged bankrupt or an order shall be made approving a petition filed by any of its creditors or 3510 by any of the stockholders of CONTRACTOR, seeking its reorganization or the readjustment of 3511 its indebtedness under the Federal bankruptcy laws or under any law or statute of the United 3512 States or of any state thereof, provided that if any such judgment or order is stayed or vacated 3513 within sixty (60) calendar days after the entry thereof, any notice of default shall be and become 3514 null, void and of no effect; unless such stayed judgment or order is reinstated in which case, 3515 said default shall be deemed immediate; or

3516 29.01.1.3 By, or pursuant to, or under the authority of any legislative 3517 act, resolution or rule or any order or decree of any Court or governmental board, agency or 3518 officer having jurisdiction, a receiver, trustee or liquidator shall take possession or control of all 3519 or substantially all of the property of CONTRACTOR, and such possession or control shall 3520 continue in effect for a period of sixty (60) calendar days; or

3521 " ' - ' 29.01.1.4 CONTRACTOR has failed or refused to pay in a timely 3522 manner the liquidated damages or any other monies due CITY and said failure is not cured 3523 within thirty (30) calendar days of receipt of written notice from CITY to do so; or

3524 29.01.1.5 CONTRACTOR has allowed any final judgment, in favor of 3525 CITY, for the payment of money to stand against it unsatisfied and said default is not cured 3526 within thirty (30) calendar days of receipt of written notice from CITY to do so; or

3527 - 29.01.1.6 CONTRACTOR has failed or refused to perform or 3528 observe the terms, conditions or covenants in this Contract not othenwise addressed in this 3529 Section 29.01, the service levels prescribed herein, or any of the rules and regulations 3530 promulgated by CITY pursuant thereto or has wrongfully failed or refused to comply with the 3531 instructions of the Contract Manager relative thereto; provided that said default is not cured 3532 within thirty (30) calendar days of receipt of written notice from CITY to do so, or if by reason of 3533 the nature of such default, the same cannot be remedied within thirty (30) calendar days 3534 following receipt by CONTRACTOR of written demand from CITY to do so, CONTRACTOR fails 3535 to commence the remedy of such default within said thirty (30) calendar days following such 3536 written notice or having so commenced shall fail thereafter to continue with diligence the curing 3537 thereof. In any dispute concerning failure to remedy or diligence in pursuing a cure, 3538 CONTRACTOR shall have the burden of proof to demonstrate (a) that the default cannot be 3539 cured within thirty (30) calendar days, and (b) that it is proceeding with diligence to cure said 3540 default, and such default will be cured within a reasonable period of time.

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. . . . . . . . e . . . ,

ic f Mixed Materials and Organics Collection Services Contract 9/19/14

3541 29.01.1.7 Except in the event of a Labor Disruption, CONTRACTOR 3542 has failed or refused to provide Essential Collection Services for a period of three (3) 3543 consecutive Work Days, on the fourth (4th) Work Day CITY may secure CONTRACTOR'S 3544 equipment, records and other property used or useful in providing Collection Services under this 3545 Contract in order to provide interim Essential Collection Services until such time as the matter is 3546 resolved and CONTRACTOR is again able to perform pursuant to this Contract; provided, 3547 however, if CONTRACTOR is unable for any reason or cause to resume performance at the 3548 end of thirty (30) calendar days all liability of CITY under this Contract to CONTRACTOR shall 3549 cease and this Contract may be deemed terminated by CITY, and CITY shall retain equipment, 3550 records and other property used in providing Collection Services on an interim basis until CITY 3551 has made other suitable arrangements for the provision of Collection Services, which may 3552 include award of the Contract to another contractor. Notwithstanding any other provision in this 3553 Contract to the contrary, CITY'S right to take interim possession of, or make use of, any of 3554 CONTRACTOR'S equipment, including, without limitation, vehicles. Carts, Bins and Containers, 3555 shall not allow CITY to assign ownership of such vehicles. Carts, Bins and Containers to 3556 another contractor and CITY acknowledges that CONTRACTOR'S lender has a security interest 3557 in such equipment. For purposes of clarity, this Section 29.01.6 shall not apply where the failure 3558 to perform is caused by a Force Majeure event; or

3559 29.01.1.8 In the event of a Labor Disruption, CONTRACTOR has 3560 failed to meet the obligations by the time periods set forth in Section 28.03; or

3561 29.01.1.9 CONTRACTOR has failed or refused to remit payment to 3562 the Recyclable Materials Collection Contractor for billing invoices successively for three (3) 3563 months or longer. [This section may be deleted depending on award of RR Contract.]

3564 29.01.2 In the event that CONTRACTOR'S annual Diversion percentage 3565 for any calendar year, as calculated on Table B to Exhibit 8 of this Contract, is more than five (5) 3566 percentage points lower than the minimum annual Diversion requirement for that calendar year 3567 as set forth in Table A to Exhibit 8 of this Contract, CITY and CONTRACTOR shall meet and 3568 confer to implement a corrective action plan for CONTRACTOR to achieve compliance. Failure 3569 to meet the agreed-upon corrective action plan may result in liquidated damages not to exceed 3570 One Hundred Fifty Dollars ($150.00) for each Work Day until compliance is met.

3571 29.01.3 In the event that the Contract is terminated, CONTRACTOR shall 3572 furnish CITY with immediate access to all of its business records related to its Customer and 3573 billing accounts for Collection Services.

3574 29.01.4 Repetitive Compliance Issues. Notwithstanding CONTRACTOR'S 3575 timely cure of previous breaches, in the event that CONTRACTOR'S record of performance 3576 shows that it has regularly and frequently failed to meet a particular material Contract obligation, 3577 despite written notices from CITY and beyond what is common by industry standards, CITY and 3578 CONTRACTOR agree to meet and confer, in good faith, regarding operational changes 3579 necessary to resolve the issue. If the parties cannot agree on necessary operational changes, 3580 then the matter will be mediated pursuant to Section 30.02.1. Once the operational changes 3581 have been agreed upon, CONTRACTOR shall be responsible for their implementation.

3582 29.02 Effective Date. In the event of the aforesaid events specified above, and except 3583 as otherwise provided in said subsections, termination shall be effective upon the date specified 3584 in CITY'S written notice to CONTRACTOR and upon said date this Contract shall be deemed 3585 immediately terminated and upon such termination all liability of CITY under this Contract to 3586 CONTRACTOR shall cease, and CITY shall have the right to call the performance bond and 3587 shall be free to negotiate with other contractors for the operation of the herein specified

City of Oakland - ^ , ^ Page 85


3588 services. CONTRACTOR for failure to perform shall reimburse CITY all direct and indirect costs 3589 of providing interim Collection Services.

3590 29.02.1 Immediate Termination. CITY may terminate this Contract 3591 immediately upon written notice to CONTRACTOR (provided CITY has first given i 3592 CONTRACTOR written notice of breach and ten (10) Work Days to cure) in the event 3593 CONTRACTOR fails to provide and maintain the performance bond as required by this 3594 Contract, or if CONTRACTOR fails to obtain or maintain insurance policies endorsements as 3595 required by this Contract, or if CONTRACTOR fails to provide the proof of insurance as required » 3596 by this Contract, or if CONTRACTOR offers or gives any gift prohibited by CITY administrative 3597 policy. . . ,

3598 29.03 CONTRACTOR Termination. » ' t "

3599 29.03.1 CITY Events of Default. The following shall be CITY Events of Default, 3600 following which the CONTRACTOR may cancel this Contract (except as otherwise provided 3601 below in this Article) by giving CITY thirty (30) calendar days advance written notice, to be 3602 served as provided in Article 45: »; , . v . ?

3603 29.03.1.1 CITY has allowed any final judgment, in favor of 3604 CONTRACTOR, for the payment of money to stand against it unsatisfied and said default is not 3605 cured within ninety (90) calendar days of receipt of written notice from CONTRACTOR to do so; 3606 or

3607 * 29.03.1.2 CITY has failed or refused to perform or observe the terms, 3608 conditions or covenants in this Contract not othenwise addressed in this Section 29.03; provided 3609 that said breach is not cured within thirty (30) calendar days of receipt of written notice from 3610 CONTRACTOR to do so, or if by reason of the nature of such breach, the same cannot be 3611 remedied within thirty (30) calendar days following receipt by CITY of written demand from 3612 CONTRACTOR to do so, CITY fails to commence the remedy of such breach within said thirty 3613 (30) calendar days following such written notice or having so commenced shall fail thereafter to 3614 continue with diligence the curing thereof. In any dispute concerning failure to remedy or 3615 diligence in pursuing a cure, CITY shall have the burden of proof to demonstrate (a) that the 3616 breach cannot be cured within thirty (30) calendar days, and (b) that it is proceeding with 3617 diligence to cure said breach, and such breach will be cured within a reasonable period of time. 3618 In the event that CITY fails to cure any breach pursuant to this provision, CONTRACTOR shall 3619 have the right to terminate this Contract. CONTRACTOR shall provide written notice of 3620 termination to CITY upon CITY's failure to cure and this Contract shall terminate one (1) year 3621 after service of such notice.

3622 29.04 Termination Cumulative. A party's right to terminate this Contract is cumulative 3623 to any other rights and remedies provided by law or by this Contract.

3624 29.05 Force Majeure. The parties shall be excused from performing their respective 3625 obligations under this Contract in the event they are prevented from so performing by reason of -3626 Force Majeure.

3627 ARTICLE 30. MODIFICATIONS TO THE CONTRACT 3628 ' 30.01 Contract Modifications and Changes in Law. CITY and CONTRACTOR 3629 understand and agree that the California Legislature has the authority to make comprehensive 3630 changes in Mixed Materials, Garbage, Recyclable Materials, or Organic Materials management 3631 legislation and that these and other changes in law in the future that mandate certain actions or

Page 86


-if


3632 programs for counties or municipalities may require changes or modifications in some of the 3633 terms, conditions or obligations under this Contract. CONTRACTOR agrees that the terms and 3634 provisions of CITY'S Municipal Code, as it now exists or as it may be amended in the future, 3635 shall apply to all of the provisions of this Contract and the Customers of CONTRACTOR located 3636 within the Service Area, provided, however, that CITY will not amend CITY'S Municipal Code in 3637 a way that is inconsistent with the Contract unless compelled to do so by federal or State law. 3638 In the event any Change in Law, modifications to CITY'S Municipal Code, or directed changes 3639 by CITY materially alters the obligations of CONTRACTOR, then the affected compensation as 3640 established under this Contract shall be adjusted. Nothing contained in this Contract shall 3641 require any party to perform any act or function contrary to law. CITY and CONTRACTOR 3642 agree to enter into good faith negotiations regarding modifications to this Contract, which may 3643 be required in order to implement changes in the interest of the public welfare or due to Change 3644 in Law. When such modifications are made to this Contract, CITY and CONTRACTOR shall 3645 negotiate in good faith a reasonable and appropriate compensation adjustment for any increase 3646 or decrease in the services or other obligations required of CONTRACTOR due to any 3647 modification in the Contract under this Section 30.01. CITY and CONTRACTOR shall not 3648 unreasonably withhold agreement to such compensation adjustment.

3649 30.01.1 Compensation Adjustments. In the event of a Change in Law or 3650 regulations of any governmental agency that will require additional or different services to be 3651 provided by CONTRACTOR which are not othenwise covered by this Contract, CONTRACTOR 3652 shall provide CITY with a written rate increase request for additional compensation to 3653 CONTRACTOR based on such additional or different services. The rate increase request shall 3654 include but not be limited to the information set forth in Sections 30.03.1 through 30.03.9 below. 3655 If the proposed rate increase exceeds five (5) percent and CITY does not agree with such rate 3656 increase, CITY, in addition to negotiating with CONTRACTOR may submit the matter to non-3657 binding mediation as set forth in Section 30.02.1.

3658 30.02 Dispute Resolution. Except for a CONTRACTOR Default under Article 29, and 3659 except as provided below in section 30.02.3, should any dispute arise under this Contract, 3660 including but not limited to the performance and obligations of the parties, or service or 3661 compensation changes, such disputes shall be resolved by the following procedures:

3662 30.02.1 The parties shall resolve their disputes informally to the maximum 3663 extent possible and shall attempt to resolve such disputes in a cooperative and mutually 3664 satisfactory manner. Either party shall give the other written notice of such dispute, and also 3665 provide written notice to the Contract Manager. The Contract Manager shall then schedule a 3666 meeting between CONTRACTOR and the CITY Administrator or the CITY Administrator's 3667 designee as soon as reasonably possible. In the event such dispute cannot be resolved by the 3668 parties themselves within thirty (30) days of their first meeting, either party may propose the 3669 appointment of a mediator. The parties shall agree on a mediator within 30 days of either party's 3670 request for mediation.

3671 30.02.2 Mediation. If the disputing parties cannot informally resolve the 3672 dispute, they shall attempt to resolve such dispute through non-binding mediation for a period 3673 not to exceed ninety (90) days from the date of their last informal meeting, absent a written 3674 agreement to extend the time of non-binding mediation.

3675 30.02.2.1 The party desiring mediation shall give written notice 3676 thereof to the other party to this Contract, specifying the dispute to be mediated.

City of Oakland * • " ' ' " / Page 87


3677 3678 3679

3680 3681 3682 3683 3684

3685 3686 3687 3688 3689

3690 3691 3692 3693 3694 3695 3696 3697 3698

3699 3700 3701

3702 3703 3704 3705 3706 3707 3708 3709 3710 3711 3712 3713

3714 3715 3716 3717

3718 3719 3720 3721 3722

30.02.2.2 The mediation shall be held at Oakland, California, or at such other location as may be mutually agreed among the parties. The mediation shall be conducted and a mediator chosen pursuant to the rules of JAMS Mediation Rules.

30.02.2.3 At least ten (10) days before the date of the mediation, each side shall provide the mediator with a statement of its position and copies of all supporting documents. Each party shall send to the mediation a person who has authority to bind the party. If a subsequent dispute will involve third parties, such as insurers or subcontractors, they shall also be asked to participate in the mediation.

30.02.2.4 Should mediation be unsuccessful, and if the dispute does not concern valuation items for which binding arbitration is required in Section 30.02.3, then a party may commence an adversarial proceeding before any court of competent jurisdiction in the County of Alameda. Disputes that concern valuation items defined in Section 30.02.3 shall proceed with binding arbitration procedures as set forth below.

30.02.3 Binding Arbitration. This Section only applies to disputes over "Valuation Items," which are defined herein as disputes over a specific amount of money or compensation that is due or owed by either party, and the dispute arises under one of the following provisions of this Contract: Articles 7 and 8 and Sections 12.01.1, 17.01.3, 18.01, 30.01, 30.03, 30.08, and 30.09. Except as provided in Section 30.02.3.1 below, disputes relating to Valuation Items shall be referred to binding arbitration upon mutual written approval of the disputing parties. If the disputing parties do not mutually agree in writing to binding arbitration, a party may commence an adversarial proceeding before any court of competent jurisdiction in the County of Alameda.

30.02.3.1 subsections are not subject requirements in this Contract.

to Valuation Items in Section 7.12 and Section 7.13 and its and are excluded from, mandatory binding arbitration

30.02.3.2 Binding arbitration proceedings shall be in accordance with California Code of Civil Procedure Section 1280 et seq., the then-current JAMS Streamlined Arbitration Rules, and the terms of section 30.02.3 and its subsections. In the event of any inconsistency, the terms of section 30.02.3 and its subsections shall control. The arbitration shall be administered by JAMS and conducted in the County of Alameda. If the parties are unable to select an arbitrator within twenty (20) days after delivering written notice requesting arbitration, JAMS shall select a qualified arbitrator from its panel. If JAMS is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision of this arbitration clause, the parties may mutually designate another arbitration organization with similar procedures to serve as the provider of arbitration. If the parties cannot agree on the arbitration organization, the Presiding Judge ofthe Alameda County Superior Court shall designate such an organization upon the petition of either party.

30.02.3.3 The arbitrator shall be independent of and unaffiliated with, each party and shall not ever have been an employee of either party, under contract with either party in the past five (5) years or acted as an arbitrator for such party within the past five (5) years.

30.02.3.4 Within twenty (20) days after initiation of the arbitration, if not previously done so under the terms of this Contract, the parties shall each submit to each other and the arbitrator their respective relevant value for the item subject to the valuation dispute, with such supporting information as is reasonably necessary to support such suggested value. If the two (2) valuations so submitted differ by less than or equal to ten percent (10%) of

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•*t , Mixed Materials and Organics Collection Services Contract 9/19/14

3723 the higher of the two (2), the average of the two (2) shall become the agreed upon amount for 3724 purposes of this Contract and the arbitration shall not be continued. If the two (2) valuations 3725 differ by more than ten percent (10%) of the higher of the two (2), then the arbitrator shall make 3726 a determination of the relevant value and submit such determination to both the parties. This 3727 third valuation will then be averaged with the closer of the two (2) previous valuations and the 3728 result shall be the relevant value. In no event shall the resolution of a valuation dispute result in 3729 a valuation higher than that which was set forth by CONTRACTOR (e.g., a impact of a 3730 "material" disclosure or a higher tip fee adjustment). The final arbitrated value shall be binding 3731 on the parties.

3732 30.02.3.5 The arbitrator shall have the authority and power to award 3733 costs, including attorneys' fees and costs to the prevailing party. Unless otherwise awarded by 3734 the arbitrator, the parties shall evenly split the cost of any arbitration under this Article.

3735 r " 30.02.3.6 By agreeing to binding arbitration, the parties irrevocably

3736 and voluntarily waive any right they may have to a trial by jury to the extent permitted by law.

3737

3738 ; f

3739 ^ -

3740

3741

Acknowledgement of waiver of rights by trial by jury if proceeding with binding arbitration pursuant to Section 30.02.3 of this Contract.

CITY OF OAKLAND CONTRACTOR

3742 ' 30.02.4 During the pendency of any dispute under this Article, all applicable 3743 time periods directly related to the dispute, including but not limited to the filing of a Government 3744 Code Claim, shall be tolled until its resolution; provided, however, that no tolling shall apply to 3745 any matters other than those directly related to the dispute, and such tolling shall not entitle a 3746 party to breach, default, or fail to perform its obligations under this Contract.

3747 * 30.03 Changes in Reguired Services Within the Scope. CITY may direct changes in 3748 the services required under the scope of this Contract, including the addition of pilot programs 3749 and innovative services that may entail new Collection methods or requirements for Customers 3750 and Service Recipients, the deletion of existing services, and the modification of the manner in 3751 which existing services are performed. However, no changes in services shall be construed so 3752 as to impair the exclusive rights of CONTRACTOR granted hereunder. CITY'S authority to 3753 delete existing services shall not be in derogation of CONTRACTOR'S exclusive Contract 3754 rights, i.e., if CITY elects to discontinue a service that is within the scope of the under this 3755 Contract, CITY shall not allow a third party to perform it. CONTRACTOR shall promptly and 3756 cooperatively comply with such directions and the rates shall be adjusted as costs/losses are 3757 incurred, pursuant to the procedures set forth in this Section, to fairly and fully reflect the 3758 additional costs and lost revenue (including but not limited to the recovery by CONTRACTOR of 3759 all costs and revenue losses associated with stranded assets and/or unrecovered capital),or 3760 cost reduction, associated with the directed change(s) in required services, but not for the 3761 preparation of CONTRACTOR'S proposal to perform such services.

3762 30.03.1 All sums that appear in this Section 30.03 are expressed in July 2015 3763 dollars and shall be adjusted beginning Ju ly l , 2016 and annually thereafter during the 3764 Contract's term, by the same percentage as the percentage used to adjust the Maximum 3765 Collection Services Rates for that fiscal year as set forth in Section 7.16, except that in no year 3766 shall the adjustment be less than zero (0) percent



3767 30.03.2 Implementing Changes in Service of $250,000 or Less. If changes in 3768 service will cumulatively affect CONTRACTOR'S costs by Two Hundred Fifty Thousand Dollars 3769 ($250,000) or less over the term of the Contract, then CONTRACTOR is not required to submit 3770 a proposal under Section 30.03.4 and shall implement the changes in accordance with a 3771 schedule directed by CITY. CITY shall determine the amount by which the rates should be 3772 adjusted. If the parties do not agree on the rate adjustment amount, CONTRACTOR may 3773 challenge the adequacy of the rates pursuant to Section 30.02 above.

3774 30.03.3 Implementing Changes in Service Greater than $250.000. If 3775 changes in service will cumulatively affect CONTRACTOR'S costs by greater than Two Hundred 3776 Fifty Thousand Dollars ($250,000) over the term of the Contract, then CONTRACTOR shall 3777 submit a proposal to perform such services pursuant to Section 30.03.4 below. CITY shall 3778 consider CONTRACTOR'S proposal and shall determine the amount by which the rates should 3779 be adjusted. CONTRACTOR shall implement the changes in accordance with the schedule 3780 directed by CITY, regardless of whether the parties agree on the rate adjustment amount. If the 3781 parties do not agree on the rate adjustment amount, CONTRACTOR may challenge the 3782 adequacy of the rates pursuant to Section 30.02 above. .

3783 30.03.4 Service Proposal. Within sixty (60) calendar days of receipt of a 3784 request for a service change from CITY under Section 30.03.3, CONTRACTOR shall submit a 3785 proposal to provide such service. At a minimum, the proposal shall contain a complete 3786 description ofthe following:

3787 30.03.4.1 Collection methodology to be employed (equipment, 3788 manpower, etc.); ' s-;,

3789 30.03.4.2 Equipment to be utilized, including equipment to be 3790 purchased (vehicle number, types, capacity, age, etc.); ,

3791 30.03.4.3 Labor requirements (number of employees by

3792 classification);

3793 30.03.4.4 Type of Carts or Bins to be utilized;

3794 ' ' 30.03.4.5 Provision for program publicity, outreach, and marketing;

3795 30.03.4.6 Five (5) year projection of the financial results of the 3796 program's operations in an operating statement format including documentation of the key 3797 assumptions underlying the projections and the support for those assumptions, giving full effect 3798 to the savings or costs to existing services; • : . 3799 30.03.4.7 Advantages and disadvantages of the change;

3800 30.03.4.8 A recommendation as to whether the change should be

3801 implemented; and

3802 30.03.4.9 An implementation schedule. * •

3803 30.04 Services Outside of Scope. CITY may request CONTRACTOR to submit a 3804 proposal to provide new services outside of the scope of this Contract. If CONTRACTOR either 3805 refuses to provide the new services or the parties are unable to agree on the terms and 3806 conditions of such services within one hundred twenty (120) days from the date when CITY first 3807 requests a proposal from CONTRACTOR, CONTRACTOR acknowledges and agrees that CITY 3808 may permit other persons or companies besides CONTRACTOR to perform those services 3809 outside of the scope of this Contract.

Page 90



3810 30.05 New Technology. In the event that technological advancements in the 3811 Collection, transportation. Processing, handling or Disposal of Mixed Materials, Recyclable 3812 Materials, and/or Organic Materials are made, and which if implemented alone or in conjunction 3813 with another technology would cumulatively reduce the initial rates established by this Contract 3814 by approximately ten (10) percent or more, CONTRACTOR shall so notify CITY, and CITY may 3815 require CONTRACTOR to utilize or implement said new technology and new rates shall be 3816 mutually agreed upon and established. CONTRACTOR shall retain the ability to propose 3817 changes to CITY in its Mixed Materials and Organic Materials Collection Service for the purpose 3818 of maximizing efficiency. Said changes will not be implemented without the prior written 3819 approval of CITY.

3820 30.06 Monitoring and Evaluation. If CITY requests, CONTRACTOR shall meet with 3821 CITY to describe the progress of each new program and other service issues. If applicable, 3822 CONTRACTOR shall document the results of the new programs on a monthly basis, including 3823 at a minimum the tonnage Diverted by material type, the end use or processor of the Diverted 3824 materials, the cost per ton for transporting and Processing each type of material, and other such 3825 information requested by CONTRACTOR and/or CITY necessary to evaluate the performance 3826 of each program. , , . . ^ , ~

3827 30.06.1 At each meeting, CITY and CONTRACTOR shall have the 3828 opportunity to discuss revisions to the program. CITY shall have the right to terminate a 3829 program if, in CITY'S sole discretion, CONTRACTOR is not cost effectively achieving the 3830 program's goals and objectives. Prior to such termination, CITY shall meet and confer with 3831 CONTRACTOR for a period of up to ninety (90) calendar days to resolve CITY'S concerns.

3832 30.07 For clarification, any adjustment to the Maximum Service Rates under this Article 3833 30 are calculated separately from Annual Rate Adjustments and are not subject to a cap.

3834 30.08 Changes in Materials. In the event the quantity, composition or quality of the 3835 Mixed Materials and/or Organic Materials Collected under the terms of this Contract is shown to 3836 the reasonable satisfaction of CITY to have substantially changed from what it was at the 3837 inception of this Contract, such that CONTRACTOR'S costs and/or ability to achieve the annual 3838 Diversion requirements as set forth in Article 8 are materially affected, the parties shall negotiate 3839 in good faith (a) a reasonable and appropriate modification to those annual Diversion 3840 requirements, and/or (b) adjustments to CONTRACTOR'S compensation if modifications to the 3841 annual Diversion requirements are not desired by the CITY or do not adequately compensate 3842 CONTRACTOR. CITY and CONTRACTOR shall not unreasonably withhold agreement to such 3843 modifications. ' ; "-' •• ^ ; • ^

3844 - 30.09 Changes in Recycling Commodities Markets. In the event of a material change in 3845 a recyclable or organic material commodity market (e.g., a market becomes unavailable or 3846 economically non-viable), and such event affects the ability of CONTRACTOR to comply with 3847 the provisions of Article 8 or significantly increases CONTRACTOR'S costs, CITY or 3848 CONTRACTOR may request that the parties enter into good faith negotiations regarding 3849 modifications to this Contract in order to provide CONTRACTOR relief from such material 3850 change. For purposes of this Section, reasonably foreseeable fluctuations in the market price of 3851 recyclable or organic materials will not be deemed material changes in such commodity market. 3852 CITY and CONTRACTOR agree to negotiate in good faith a reasonable modification to the 3853 provisions of Article 8 (e.g., disposal of a material instead of diversion) and/or adjustments to 3854 CONTRACTOR'S compensation if Article 8 modifications are not desired by CITY or do not 3855 adequately compensate CONTRACTOR for the material market change. CITY and 3856 CONTRACTOR shall not unreasonably withhold agreement to such modification.

City of Oakland J - " Page 91


. . . . . . . . i . , ., . , , , ^ ^ ^

3857 / ARTICLE 31. LEGAL REPRESENTATION 3858 31.01 Acknowledgement. It is acknowledged that each party was, or had the 3859 opportunity to be, represented by counsel in the preparation of and contributed equally to the 3860 terms and conditions of this Contract and, accordingly, the rule that a contract or Contract shall 3861 be interpreted strictly against the party preparing the same shall not apply herein due to the joint 3862 contributions of both parties.

3863 ARTICLE 32. FINANCIAL INTEREST 3864 32.01 Representation. CONTRACTOR warrants and represents that no elected official, 3865 officer, agent or employee of CITY has a financial interest, directly or indirectly, in this Contract 3866 or the compensation to be paid under it and, further, that no CITY employee who acts in CITY 3867 as a "purchasing agent" as defined in the appropriate Section of California Statutes, nor any 3868 elected or appointed officer of CITY, nor any spouse or child of such purchasing agent, 3869 employee or elected or appointed officer, is a partner, officer, director or proprietor of 3870 CONTRACTOR and, further, that no such CITY employee, purchasing agent, CITY elected or 3871 appointed officer, or the spouse or child of any of them, alone or in combination, has a material 3872 interest in CONTRACTOR. Material interest means direct or indirect ownership of more than 3873 five (5) percent of the total assets or capital stock of CONTRACTOR.

)... . • ' 3874 ARTICLE 33. CONTRACTOR'S PERSONNEL 3875 33.01 Personnel Reguirements. CONTRACTOR shall employ and assign qualified 3876 personnel to perform all services set forth herein. CONTRACTOR shall be responsible for 3877 ensuring that its employees comply with all applicable laws and regulations and meet all federal, 3878 State and local requirements related to their employment and position. 3879 ' 33.01.1 CITY may request the transfer of any employee of 3880 CONTRACTOR who materially violates any provision hereof, or who is wanton, negligent, or 3881 discourteous in the performance of his duties.

3882 33.01.2 CONTRACTOR shall not permit its employees to demand or 3883 solicit, directly or indirectly, any additional compensation or gratuity from Customers or Service 3884 Recipients for the provision of Collection Services under the terms of this Contract.

3885 33.01.3 CONTRACTOR'S field operations personnel shall be required to 3886 wear a clean uniform shirt bearing CONTRACTOR'S name. CONTRACTOR'S employees, who 3887 normally come into direct contact with the public, including drivers, shall bear some means of 3888 individual photographic identification such as a name tag or identification card.

3889 33.01.4 Each driver of a Collection vehicle shall at all times carry a valid 3890 California driver's license and all other required licenses for the type of vehicle that is being 3891 operated. :

3892 33.01.5 Each driver of a Collection vehicle shall at all times comply with all 3893 applicable State and federal laws, regulations and requirements. , ; ^

3894 33.01.6 CONTRACTOR'S employees, officers, and agents shall at no time 3895 be allowed to identify themselves or in any way represent themselves as being employees of 3896 CITY.

3897 33.01.7 CONTRACTOR'S name and the Customer Service telephone 3898 number shall be properly displayed on all Collection vehicles.

" " ' it ' ' ; Page 92 CITY I OF O A K L A N D


3899 " ' ARTICLE 34. UNACCEPTABLE WASTE 3900 34.01 CONTRACTOR shall not be required to Collect, transport or deliver for Disposal, ' 3901 Unacceptable Waste, but may offer such services. All such Collection, transport and delivery for * 3902 Disposal of Unacceptable Waste is not regulated under this Contract, but if provided by 3903 CONTRACTOR shall be in strict compliance with all federal, state and local laws and 3904 regulations.

3905 ARTICLE 35. INDEPENDENT CONTRACTOR 3906 35.01 In the performance of services pursuant to this Contract, CONTRACTOR shall be 3907 an independent contractor and not an officer, agent, servant or employee of CITY. 3908 CONTRACTOR shall have exclusive control of the details of the services and work performed 3909 and over all persons performing such services and work. CONTRACTOR shall be solely 3910 responsible for the acts and omissions of its officers, agents, employees, contractors and I' 3911 subcontractors, if any. Neither CONTRACTOR nor its officers, employees, agents, contractors * 3912 or subcontractors shall obtain any right to retirement benefits. Workers Compensation benefits, 3913 or any other benefits that accrue, to CITY employees and CONTRACTOR expressly waives any 3914 claim it may have or acquire to such benefits. „ ^

3915 - ARTICLE 36. LAWS TO GOVERN 3916 36.01 The law of the state of California shall govern the rights, obligations, duties and 3917 liabilities of CITY and CONTRACTOR under this Contract and shall govern the interpretation of 3918 this Contract. ^^.^ V , , • n

3919 ARTICLE 37. CONSENT TO JURISDICTION 3920 37.01 The parties agree that any litigation between CITY and CONTRACTOR I 3921 concerning or arising out of this Contract shall be filed and maintained exclusively in the 3922 municipal or superior courts of Alameda County, state of California, or in the United States 3923 Court for the Northern District of California to the fullest extent permissible by law. Each party 3924 consents to service of process in any manner authorized by California law.

3925 * ARTICLE 38. ASSIGNMENT • 3926 38.01 CITY Right to Terminate in Event of Assignment. CONTRACTOR ^ 3927 acknowledges that this Contract involves rendering a vital service to CITY'S residents and 3928 businesses, and that CITY has selected CONTRACTOR to perform the services specified \ 3929 herein based on (1) CONTRACTOR'S experience, skill and reputation for conducting its 3930 operations in a safe, effective and responsible fashion, at all times in keeping with applicable 3931 environmental laws, regulations and best management practices for the provision of Collection ' ' 3932 Services and (2) CONTRACTOR'S financial resources to maintain the required equipment and 3933 to support its indemnity obligations to CITY under this Contract. CITY has relied on each of 3934 these factors, among others, in choosing CONTRACTOR to perform the services to be 3935 rendered by CONTRACTOR under this Contract. Any assignment by CONTRACTOR, either 3936 directly or indirectly, in whole or in part, of its rights or any interest it may have in this Contract 3937 including any transfer of its stock or assets to a third party shall give CITY, in its sole discretion, 3938 the basis for terminating this Contract in whole or in part upon the giving of a thirty (30) day 3939 written notice to CONTRACTOR. In the event such notice of termination is given as authorized

City of Oakland ,, . .' • , , Page 93


3940 by this Article, CONTRACTOR shall continue, for up to six (6) months following notice of 3941 termination, to provide any or all of the services it is obligated to perform under this Contract if 3942 requested by CITY in writing. CITY'S right to terminate the Contract in whole or in part shall 3943 expire unless exercised within sixty (60) days of receiving written notice from CONTRACTOR as 3944 provided herein of an assignment by CONTRACTOR. "Assignment" or "Assign" as used in this 3945 Contract shall include, but not be limited to, (i) a sale, exchange or other transfer of substantially 3946 all of CONTRACTOR'S assets dedicated to any or all of the services to be provided under this 3947 Contract to a third party (ii) a sale, exchange or other transfer of outstanding common stock of 3948 CONTRACTOR to a third party provided said sale, exchange or transfer results in a change of 3949 control of CONTRACTOR or any sale, exchange or transfer of the common stock of 3950 CONTRACTOR which results in the effective transfer of control of substantially all of 3951 CONTRACTOR'S assets dedicated to any or all of the services to be provided under this 3952 Contract to a third party; (iii) any dissolution, reorganization, consolidation, merger, re-3953 capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow 3954 arrangement, liquidation or other transaction to which results in a change of ownership or 3955 control of CONTRACTOR; (iv) any assignment by operation of law, including insolvency or 3956 bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution 3957 being levied against this Contract, appointment of a receiver taking possession of 3958 CONTRACTOR'S property, or transfer occurring in the event of a probate proceeding; and (v) 3959 any combination of the foregoing (whether or not in related or contemporaneous transactions) 3960 which has the effect of any such transfer or change of ownership, or change of control of 3961 CONTRACTOR, or substantially all of the assets used for providing any of the services under 3962 this Contract to a third party. For purposes of this Contract, an "assignment" shall not include a 3963 sale, transfer or exchange with [insert company] or any of its subsidiaries, successors or 3964 assigns, provided such affiliated entity has financial capabilities and management, available 3965 locally, equal to or greater than CONTRACTOR.

3966 * 38.02 Procedure for CITY Evaluation of Proposed Assignment. If CONTRACTOR 3967 requests CITY'S consideration of and consent to an assignment, CONTRACTOR shall meet the 3968 following preliminary requirements:

3969 38.02.1 CONTRACTOR shall pay CITY its reasonable expenses for 3970 attorney's fees, consultant's fees and investigation costs necessary to investigate the suitability 3971 of any proposed assignee, and to review and finalize any documentation required as a condition 3972 for approving any such assignment;

3973 38.02.2 CONTRACTOR shall furnish CITY with audited financial 3974 statements of the proposed assignee's operations for the immediately preceding three (3) 3975 operating years; and

3976 " ' 38.02.3 CONTRACTOR shall furnish CITY with satisfactory proof that: (1) 3977 the proposed assignee has at least ten (10) years of experience providing Collection Services 3978 on a scale equal to or exceeding the scale of operations conducted by CONTRACTOR under 3979 this Contract; (2) in the last five (5) years, the proposed assignee has not suffered any 3980 significant citations or other censure from any federal, State or local agency having jurisdiction 3981 over its Collection Services operations due to any significant failure to comply with State, federal 3982 or local environmental laws and the assignee has provided CITY with a complete list of such 3983 citations and censures; (3) the proposed assignee has at all times conducted its operations in 3984 an environmentally safe and conscientious fashion; (4) the proposed assignee conducts its 3985 Collection Services operation practices in accordance with sound management practices in full 3986 compliance with all federal. State and local laws regulating the provision of Collection Services;

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Mixed Materials and Organics Collection Services Contract 9/19/14 , ' . . . ^- • i •

3987 and, (5) of any other information required by CITY to ensure the proposed assignee can fulfill 3988 the terms of this Contract in a timely, safe and effective manner.

3989 38.03 CONTRACTOR Default. Under no circumstances shall CITY be obliged to 3990 consider any proposed assignment if CONTRACTOR is in default at any time during the period 3991 of consideration.

3992 38.04 CITY Discretion to Accept or Reiect Assignment. CITY, in its sole discretion, 3993 may accept, reject or conditionally accept the proposed assignment. If CITY accepts a partial 3994 assignment, the corporate guaranty provided in Section 1.47 and Exhibit 18 and the 3995 performance security provided in Article 24 shall remain in effect unless CITY in its sole 3996 discretion consents to adequate substitutes by the assignee or to a novation, and absent a 3997 novation CONTRACTOR shall not be released from liability under this Contract.

3998 38.05 Subcontractor. The use of a subcontractor to perform services under this 3999 Contract shall not constitute delegation of CONTRACTOR'S duties provided that 4000 CONTRACTOR has received prior written authorization from CITY to subcontract such services 4001 and the Contract Manager has approved a subcontractor who will perform such services. 4002 CONTRACTOR shall be responsible for directing the work of CONTRACTOR'S subcontractors 4003 and any compensation due or payable to CONTRACTOR'S subcontractor shall be the sole 4004 responsibility of CONTRACTOR. CITY shall have the right to require the removal of any 4005 approved subcontractor for reasonable cause.

4006 " ARTICLE 39. COMPLIANCE WITH LAWS 4007 39.01 In the performance of this Contract, CONTRACTOR shall comply with all 4008 applicable laws, regulations, ordinances and codes ofthe federal, state and local governments, 4009 including without limitation the Municipal Code of the CITY of Oakland.

4010 39.02 CITY shall provide written notice to CONTRACTOR of any planned amendment 4011 of CITY ordinances that would affect the performance of CONTRACTOR'S services or 4012 obligations pursuant to this Contract, in which case Section 30.01 would apply if there is an 4013 effect on CONTRACTOR'S costs or ability to provide contract services. Such notice shall be 4014 provided at least thirty (30) calendar days prior to the CITY Council's approval of such an 4015 amendment. ; •

4016 ARTICLE 40. PERMITS AND LICENSES 4017 40.01 CONTRACTOR shall obtain, at its own expense, all permits and licenses 4018 required by law or ordinance and maintain same in full force and effect throughout the term of 4019 this Contract. CONTRACTOR shall provide proof of such permits, licenses or approvals and 4020 shall demonstrate compliance with the terms and conditions of such permits, licenses and 4021 approvals upon the request of the Contract Manager.

4022 ARTICLE 41. OWNERSHIP OF WRITTEN MATERIALS 4023 41.01 All reports, documents, brochures, public education materials, and other written, 4024 printed, electronic or photographic materials developed by CITY or CONTRACTOR for the CITY 4025 as required by this Contract, whether developed directly or indirectly by CITY or CONTRACTOR 4026 shall be and shall remain the property of CITY without limitation or restrictions on the use of 4027 such materials by CITY. CONTRACTOR shall not use such materials in connection with any 4028 project not connected with this Contract without the prior written consent of the Contract

City of Oakland . - Page 95


4029 Manager. This Article 41 does not apply to ideas or concepts described in such materials and 4030 does not apply to the format of such materials.

4031 ARTICLE 42. WAIVER ' 4032 42.01 Waiver by CITY or CONTRACTOR of any breach for violation of any term 4033 covenant or condition of this Contract shall not be deemed to be a waiver of any other term, 4034 covenant or condition or any subsequent breach or violation of the same or of any other term, 4035 covenant or condition. The subsequent acceptance by CITY of any fee, tax, or any other 4036 monies, which may become due from CONTRACTOR to CITY shall not be deemed to be a 4037 waiver by CITY of any breach for violation of any term, covenant or condition of this Contract.

4038 ARTICLE 43. POINT OF CONTACT 4039 43.01 The day-to-day dealings between CONTRACTOR and CITY shall be between 4040 CONTRACTOR and the Contract Manager.

4041 ^ i . . - ARTICLE 44. CONFLICT OF INTEREST 4042 44.01 CONTRACTOR covenants and declares it has no conflicts of interest that would 4043 in any manner impair or affect CONTRACTOR'S ability to perform under this Contract.

4044 ' ARTICLE 45. NOTICES 4045 45.01 Except as provided herein, whenever either party desires to give notice to the 4046 other, it must be given by written notice by registered or certified mail, or by other methods 4047 designated for next day delivery with proof of receipt, addressed to the party for whom it is 4048 intended, at the place last specified and to the place for giving of notice in compliance with the 4049 provisions of this paragraph. For the present, the parties designate the following as the 4050 respective persons and places for giving of notice:

4051 ' • ' : As to the CITY: ; * • ; . ' \ •

4052 - ^ City Administrator ' ^ ' ' iv * ' » . ' 4053 ' Office of the City Administrator v ; 4054 City of Oakland S, ; . .^ 4055 1 Frank Ogawa Plaza, 3" Floor . ^ 4056 Oakland, CA 94612 ^ -4057 Telephone: 510-238-3301 , . V : ' 4058 E-mail: [email protected] 4059 4060 With copies to: ^ . , ' - '

4061 Director of Public Works * \ 4062 Public Works Agency ' , 4063 City of Oakland . .. - ^ 4064 250 Frank Ogawa Plaza, Suite 4314 ' • " ^ 4065 ' Oakland, CA 94612 4066 ' Telephone: 238-4470 -4067 -. . E-mail: [email protected] • 4068 ' ^ . "-> ; * 4069 City Attorney • ^

. \ , ; Page 96



4070 Office of the City Attorney, . . . , ' . . . ' 4071 City of Oakland , , 4072 1 Frank Ogawa Plaza, 6* Floor . ' ' 'J' i , , • 4073 Oakland, CA 94612 ^ ' " > " . ' 4074 Telephone: (510) 238-3601 , • . - . . ' 4075 E-mail: [email protected] . : ' ' ' 4076 ' > ' ' - ' ' ' , 4077 Director of Finance and Management '•' ' 4078 Finance and Management Agency ' 4079 City of Oakland 4080 150 Frank Ogawa Plaza, Suite 5215 4081 Oakland, CA 94612 " ' . 4082 Telephone: (510)238-2220 4083 E-mail: [email protected] 4 4084 . , • ' 4085 As to CONTRACTOR: * , , - • '

4086

4087 45.02 Notices shall be effective when received at the address as specified above. 4088 Changes in the respective address to which such notice is to be directed may be made by 4089 written notice with a courtesy copy provided by email. The original of items that are transmitted 4090 by email must also be mailed as required herein. v . *

4091 ARTICLE 46. TRANSITION TO NEXT CONTRACTOR ' 4092 46.01 In the event CONTRACTOR is not awarded a Contract extension to continue to 4093 provide Collection Services following the expiration or upon early termination of this Contract, 4094 CONTRACTOR shall cooperate fully with CITY and any subsequent contractors to assure a 4095 smooth transition of services described in this Contract. Such cooperation shall include but not 4096 be limited to transfer of computer data, files and tapes; providing routing information, route 4097 maps, vehicle fleet information, and list of Customers; providing a complete inventory of all 4098 Carts and Bins; providing adequate labor and equipment to complete performance of all 4099 Collection Services required under this Contract; coordinating Collection of materials set out in 4100 new Containers if new Containers are provided for a subsequent Contract and providing other 4101 reports and data required by this Contract.

4102 ARTICLE 47. CONTRACTOR'S RECORDS 4103 47.01 CONTRACTOR shall maintain any and all letters, books of account, invoices, 4104 vouchers, canceled checks, and other records or documents evidencing or relating to charges 4105 for services or expenditures and disbursements charged to Customers for a minimum period of 4106 five (5) years, or for any longer period required by law, from the date of final payment to 4107 CONTRACTOR pursuant to this Contract.

4108 47.02 CONTRACTOR shall maintain all documents and records, that demonstrate 4109 performance under this Contract for a minimum period of five (5) years, or for any longer period 4110 required by law, from the date of termination or completion of this Contract.

4111 47.03 Any records or documents required to be maintained pursuant to this Contract 4112 shall be made available for inspection or audit, at any time during regular business hours, upon 4113 written request by the Contract Manager, the CITY Attorney, CITY Auditor, CITY Administrator,

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> Mixed Materials and Organics Collection Services Contract 9/19/14

4114 or a designated representative of any of these officers. Copies of such documents shall be 4115 provided to CITY for inspection at CITY offices when it is practical to do so. Otherwise, unless 4116 an alternative site is mutually agreed upon, the records shall be available at CONTRACTOR'S 4117 address indicated for receipt of notices in this Contract. .

4118 47.04 Where CITY has reason to believe that such records or documents may be lost 4119 or discarded due to the dissolution, disbandment or termination of CONTRACTOR'S business, 4120 CITY may, by written request or demand of any of the above named officers, require that 4121 custody of the records be given to CITY and that the records and documents be maintained in 4122 CITY Hall. Access to such records and documents shall be granted to any party authorized by 4123 CONTRACTOR, CONTRACTOR'S representatives, or CONTRACTOR'S successor-in-interest.

4124 t ^ ARTICLE 48. ENTIRE CONTRACT 4125 48.01 This Contract and the Exhibits attached hereto constitute the entire Contract and 4126 understanding between the parties hereto, and it shall not be considered modified, altered, 4127 changed or amended in any respect unless in writing and signed by the parties hereto.

4128 ARTICLE 49. SEVERABILITY 4129 49.01 If any provision of this Contract or the application of it to any person or situation 4130 shall to any extent be held invalid or unenforceable, the remainder of this Contract and the 4131 application of such provisions to persons or situations other than those as to which it shall have 4132 been held invalid or unenforceable, shall not be affected, shall continue in full force and effect, 4133 and shall be enforced to the fullest extent permitted by law.

4134 ARTICLE 50. RIGHT TO REQUIRE PERFORMANCE 4135 * 50.01 The failure of either party at any time to require performance by the other of any 4136 provision hereof shall in no way affect the right thereafter to enforce same. Nor shall waiver by 4137 a party of any breach of any provision hereof be taken or held to be a waiver of any succeeding 4138 breach of such provision or as a waiver of any provision itself.

4139 ARTICLE 51. CORPORATE GUARANTY 4140 51.01 In addition to the performance security required in Article 24, CONTRACTOR is 4141 required to obtain a Guaranty, and Guarantor has agreed to guarantee CONTRACTOR'S 4142 performance of this Contract, including CONTRACTOR'S indemnification obligations hereunder 4143 pursuant to a Guaranty in substantially the form attached as Exhibit 18. The Guaranty is being 4144 provided concurrently with CONTRACTOR'S execution of this Contract.

4145 ^ , ARTICLE 52. EMPLOYEE RETENTION REQUIREMENTS 4146 52.01 CONTRACTOR acknowledges that if and when Collection Services are 4147 transferred to CONTRACTOR, as the successful proposer, that workers who perform services 4148 for CITY'S current Contractor (if different from CONTRACTOR) may be displaced from their 4149 employment. CONTRACTOR represents and warrants that it shall offer employment to all 4150 qualified displaced workers who have been employed by the current Contractor for at least one 4151 hundred twenty (120) calendar days prior to July 1, 2015, provided that CONTRACTOR shall 4152 not be required to create additional positions that CONTRACTOR does not need nor to lay-off 4153 or discharge CONTRACTOR'S employees in order to employ qualified displaced workers. A

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4154 qualified displaced worker includes non-management workers of the current Contractor who 4155 have been employed, in a full-time paid status, for at least one hundred twenty (120) calendar 4156 days prior to July 1, 2015 and who would otherwise be laid-off. CONTRACTOR is prohibited 4157 from discharging any qualified displaced workers for at least ninety (90) calendar days after 4158 Ju ly l , 2015 except for cause. After the initial ninety (90) calendar days, the continued 4159 employment of qualified displaced workers will be under the terms and conditions established 4160 for all of CONTRACTOR'S workers in the particular job classification. CONTRACTOR shall 4161 submit displaced worker hiring status reports to the Contract Manager on the last working day of 4162 October 2015 and on the last working day of June 2016.

4163 ARTICLE 53. SUBCONTRACTING 4164 53.01 CONTRACTOR shall not engage any subcontractors to perform any of the 4165 services required of it under this Contract without the prior written approval of CITY. 4166 CONTRACTOR shall notify CITY no later than ninety (90) days prior to the date on which it 4167 proposes to enter into a subcontract, providing CITY with all information it requests with respect 4168 to the proposed subcontractor. CITY may approve or reject any proposed subcontract and/or 4169 subcontractor in its sole discretion if the proposed subcontract replaces essential services to be 4170 performed by CONTRACTOR pursuant to Article 9, Article 10, Article 11, and Article 12 of this 4171 Contract. CITY'S consent to a subcontract and/or subcontractor shall not be unreasonably 4172 withheld as to other aspects of this Contract that are not deemed to involve essential services to 4173 CITY. ^ : ..'J,,,,,,' , <f • f.

4174 ' C V ' ARTICLE 54. [RESERVED]

4175 r ^ •' ARTICLE 55. LOCAL HIRE COMPLIANCE 4176 ' 55.01 CONTRACTOR represents and warrants that at least fifty (50) percent of all new 4177 hires in their workforce will be Oakland residents (i.e., for every two (2) new hires, one (1) will be 4178 a resident of Oakland). A compliance baseline will be determined on October 1, 2015. The 4179 baseline calculation will be total number of full-time equivalent employees with a verified 4180 Oakland address assigned to this Contract divided by the total number of full-time equivalent 4181 employees assigned to this Contract. CONTRACTOR shall provide documentation for the 4182 number of employees used in the baseline and employees that are used in the calculation as 4183 Oakland residents. Compliance with this Section 55.01 is subject to requirements of 4184 CONTRACTOR collective bargaining agreements.

4185 55.02 Beginning November 2015, CONTRACTOR will provide a monthly report in 4186 accordance with Section 19.02.1.7 showing the total number of employees hired in the previous 4187 month and of those employees hired, the city of residence of those new employees. CITY will 4188 calculate annually the percent of new hires that are Oakland residents. Failure to comply with 4189 Section 55.01 hiring requirements may result in liquidated damages per Article 22. CITY may 4190 put CONTRACTOR on a corrective action plan to achieve compliance with Section 55.01. 4191 Failure to meet the corrective action plan may result in CITY not extending Contract per Article 4192 3.

4193 55.03 CONTRACTOR may provide documentation of employees that are Oakland 4194 residents that do not work on this Contract for the CITY's consideration. CITY, at its sole 4195 discretion, may choose to use the number of Oakland residents that are employees of

City of Oakland ' " T-. ' . . ' Page 99


4196 CONTRACTOR that do not work on this Contract in the annual calculation for compliance with 4197 this Article.

4198 ARTICLE 56. RELIGIOUS PROHIBITION 4199 56.01 There shall be no religious worship, instruction, or proselytization as part of, or in 4200 connection with, the performance of this Contract. V

4201 ARTICLE 57. POLITICAL PROHIBITION AND CAMPAIGN 4202 ^ CONTRIBUTIONS 4203 57.01 This Contract is subject to the City of Oakland Campaign Reform Act of Chapter 4204 3.12 of the Oakland Municipal Code and its implementing regulations. The Campaign Reform 4205 Act prohibits contractors that are doing business or seeking to do business with CITY from 4206 making campaign contributions to Oakland candidates between commencement of negotiations 4207 and either one hundred eighty (180) days after completion of, or termination of. Contract 4208 negotiations. CONTRACTOR has signed and dated an Acknowledgment of Campaign 4209 Contribution Limits Schedule O attached hereto and incorporated herein as Attachment 3.

4210 p ' ARTICLE 58. BUSINESS TAX CERTIFICATE 4211 58.01 CONTRACTOR shall obtain and provide proof of a valid CITY business tax 4212 certificate. Said business tax certificate will be valid prior to and to the conclusion of this 4213 Contract. A copy of the business tax certificate for 2015 is attached hereto and incorporated 4214 herein as Exhibit 19. A copy of subsequent business tax certificates shall be sequentially 4215 numbered and attached hereto. r ^

4216 ARTICLE 59. ATTORNEYS FEES 4217 59.01 In any dispute between the parties, whether or not resulting in litigation or any 4218 appeal therefrom, the prevailing party shall be entitled to recover from the other party all 4219 reasonable costs, including, without limitation, reasonable attorneys' fees. "Prevailing parties" 4220 shall include without limitation (i) a party who dismisses an action in exchange for sums 4221 allegedly due such party; (ii) the party which received performance from the other party of an 4222 alleged breach of a covenant or a desired remedy where such performance is substantially 4223 equal to the relief sought in an action; or (iii) the party determined to be the prevailing party by a 4224 court of law. , , , ,

4225 ARTICLE 60. LIMITATION OF FELONY DISCLOSURE ON JOB 4226 APPLICATION 4227 60.01 CONTRACTOR is required to exclude from the initial job application, any 4228 requirement of the applicant to disclose felony history as long as it complies with governing 4229 laws. . \,

4230 ARTICLE 61. COMPETITIVE WAGES AND BENEFITS 4231 61.01 Living Wage Reguirements. CONTRACTOR shall comply with CITY Living 4232 Wage Ordinance Chapter 2.28 of the Oakland Municipal Code and its implementing regulations. 4233 The Ordinance requires among other things, submission of the Declaration of Compliance

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* t. Mixed Materials and Organics Collection Services Contract 9/19/14

4234 attached and incorporated herein as Attachment 3. All of the provisions of Section 61.01, or any 4235 part hereof, may be waived in a bona fide collective bargaining agreement, but only if the waiver 4236 is explicitly set forth in such agreement in clear and unambiguous terms.

4237 61.02 Competitive Wages and Benefits. CONTRACTOR shall pay Competitive Wages 4238 and Benefits defined as wages and benefits equivalent to or better than collectively bargained 4239 contracts in use in Alameda, Contra Costa, San Francisco, Santa Clara, and San Mateo 4240 Counties. CONTRACTOR shall provide CITY evidence of compliance with this provision at 4241 CITY'S request.

4242 61.03 CONTRACTOR shall provide CITY ninety (90) day notice for expiration any of 4243 CONTRACTOR'S collectively bargained contracts. CONTRACTOR shall timely notice CITY 4244 should other issues arise with CONTRACTOR'S collectively bargained contracts.

4245 ARTICLE 62. VALIDITY OF CONTRACTS 4246 ' 62.01 This Contract shall not be binding or of any force or effect until signed by the City 4247 Administrator or his or her designee and approved as to form and legality by the City Attorney or 4248 his or her designee. « i.'.... f •

4249 ARTICLE 63. EQUAL BENEFITS ORDINANCE 4250 63.01 This Contract is subject to the Equal Benefits Ordinance of Chapter 2.232.010 of 4251 the Oakland Municipal Code and its implementing regulations. Entities which enter into a 4252 "contract" with the City for an amount of Twenty-Five Thousand Dollars ($25,000.00) or more for 4253 public works or improvements to be performed, or for goods or services to be purchased or 4254 grants to be provided at the expense of the City or to be paid out of moneys deposited in the 4255 treasury or out of trust moneys under the control of or collected by the City; and Entities which 4256 enter into a "property contract" pursuant to Section 2.23.020(D) with the City in an amount of 4257 Twenty-five Thousand Dollars ($25,000.00) or more for the exclusive use or occupancy (1) of 4258 real property owned or controlled by the City or (2) of real property owned by others for the 4259 City's use or occupancy, for a term exceeding twenty-nine (29) days in any calendar year.

4260 63.02 The Ordinance shall only apply to those portions of CONTRACTOR'S 4261 operations that occur (1) within the CITY; (2) on real property outside Oakland if the property is 4262 owned by CITY or if CITY has a right to occupy the property, and if CONTRACTOR'S presence 4263 at that location is connected to a contract with CITY; and (3) elsewhere in the United States 4264 where work related to a City contract is being performed. The requirements of this Section shall 4265 not apply to subcontracts or subcontractors of any contract or contractor. The Equal Benefits 4266 Ordinance requires among other things, submission of Schedule N-1, the Equal Benefits-4267 Declaration of Nondiscrimination, incorporated herein.

4268 ARTICLE 64. LABOR PEACE 4269 64.01 General. CITY has determined that the level of vulnerability of the proposed 4270 Contract to labor disputes is sufficient to warrant that labor peace is essential to the property 4271 interests of CITY. Therefore, CONTRACTOR shall at all times comply with the provisions of 4272 CONTRACTOR'S Term Resumption of Service Plan.

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4273 ARTICLE 65. AMENDMENT ' 4274 65.01 No modification, amendment, or supplement to this Contract will be binding on 4275 the parties unless it is made in writing, duly authorized by CONTRACTOR and CITY, and 4276 signed by both parties.

4277 ARTICLE 66. ALL PRIOR CONTRACTS SUPERSEDED 4278 66.01 This document incorporates and includes all prior negotiations, correspondence, 4279 conversations, agreements and understandings applicable to the matters contained in this 4280 Contract and the parties agree that there are no commitments, agreements or understandings 4281 concerning the subject matter of this Contract that are not contained in this document or in the 4282 Disposal Services Contract or the Residential Recycling Services Contract which are being 4283 executed simultaneously with this document. Accordingly, it is agreed that no deviation from the 4284 terms of this Contract shall be predicated upon any prior representations or agreements, 4285 whether oral or written.

4286 f ARTICLE 67. HEADINGS 4287 67.01 Headings in this document are for convenience of reference only and are not to 4288 be considered in any interpretation of this Contract.

4289 ARTICLE 68. LEGAL REPRESENTATION 5

4290 68.01 Each of the parties has received the advice of legal counsel prior to signing this 4291 Contract. The parties agree no provision or provisions may be subject to any rule of construction 4292 based upon any party being considered the party "drafting" this Contract.

4293 ARTICLE 69. EXHIBITS 4294 69.01 Each Exhibit referred to in this Contract forms an essential part of this Contract. 4295 Each such Exhibit is a part of this Contract and each is incorporated by this reference.

4296 ARTICLE 70. EFFECTIVE DATE 4297 70.01 This Contract shall become effective at such time as it is properly executed by 4298 CITY and CONTRACTOR and CONTRACTOR shall begin Collection Services, as covered 4299 herein, as of July 1, 2015. * • -

4300 ^ * . ' . . ; (• •". .

4301 IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Contract on the day 4302 and year first written above.

4303 CITY OF OAKLAND [Contractor Company Name] . ! 4304 4305 '-i-"^':-:'' • • • - ^ 4306 4307 By: By: 4308 [Name, Title] [Name, Title] 4309

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4310 4311 4312 4313

4314 4315

4316

4317

4318

4319

4320

4321 4322 4323 4324

4326

4327 4328

4329

4330

Date Date

City of Oakland Business License Number

The foregoing Contract has been reviewed and approval is recommended:

Resolution No. C.M.S.

Approved by City Council " . '

APPROVED AS TO FORM: ' / ' -

[Name, Title] City Attorney

4325 Attest:

By: [Name, Title] City Clerk

Date

Date

-1

-3*,



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Page 104

, , ATTACHMENT C Final Circulation Draft

*Subject to such terms & conditions approved by the City Council . . September 19,2014

Disposal Services Contract

Executed between

' f.

City of Oakland

and

Waste Management of Alameda County, Inc.

July 1, 2015 •

>

Disposal Service Contract 9/19/2014


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f i t

City of Oakland Page


TABLE OF CONTENTS

Disposal Services Contract Article 1. Definitions 2

Article 2. Representations and Warranties of CONTRACTOR 8

Article 3. Term of Contract 9

Article 4. Obligations of CITY 9

Article 5. Obligations of CONTRACTOR 10

Article 6. Disposal Tipping Fee 22

Article 7. Indemnity and Insurance, 25

Article 8. Performance Security 31

Article 9. Corporate Guaranty 31

Article 10. Force Majeure 31

Article 11. Default of Contract 31


Article 13. Financial Interest 33

Article 14. Independent Contractor 34

Article 15. Laws to Govern 34

Article 16. Consent to Jurisdiction 34

Article 17. Assignment 34

Article 18. Compliance with Laws 36

Article 19. Waiver 36

Article 20. Point of Contact 37

Article 21. Notices 37

Article 22. Nondiscrimination 38

Article 23. CONTRACTOR'S Records 38

Article 24. Quality of Performance of Contractor 39

Article 25. Labor Peace 40

Article 26. Severability 41

Article 27. Right to Require Performance 41

Article 28. Dispute Resolution 41

Article 29. All Prior Contracts Superseded 43

Article 30. Headings 43

Article 31. Exhibits 43

City of Oakland . . .. .. , Page iii


Article 32. Effective Date 43

Exhibit 1 Approved Per Ton Disposal Tipping Fees 47

Exhibit 2 Disposal Tipping Fee Adjustment Methodology 49

Exhibit 3 Guaranty Agreement 55

Exhibit 4 City of Oakland Required Forms 65

Exhibit 5 Deleted 66

Exhibit 6 Revenue Sharing Plan 67

.• • . •••• "

City of Oakland Page iv

1 , CITY OF OAKLAND

2 This Disposal Services Contract ("Contract") is entered into [Insert Date] (the "Effective Date") 3 by and between the CITY OF OAKLAND, a California municipal corporation ("CITY") and 4 WASTE MANAGEMENT OF ALAMEDA COUNTY, INC., a California corporation 5 ("CONTRACTOR").

6 ..... " -'-" ^ ^ ^ ^ ^V'---^.^

7 WHEREAS, CITY enters this Contract with CONTRACTOR, under which CONTRACTOR 8 receives Garbage generated within the CITY and Residue from the Processing of Mixed 9 Materials Collected by the Mixed Materials and Organics ("MM&O") Collection Contractor within

10 the CITY of Oakland at the Disposal Facility;

11 WHEREAS, the City Council of the City of Oakland determines, pursuant to its police powers, 12 that obtaining a long-term commitment for Disposal of Garbage generated in the CITY and 13 Residue from the Processing of Mixed Materials Collected by the MM&O Collection Contractor 14 within the CITY is in the best interests of the health, safety and well-being of the citizens of the 15 CITY;

16 WHEREAS, the state of California, through enactment of the California Integrated Waste 17 Management Act of 1989 (California Public Resources Code section 40000, et seq.), also 18 recognizes the important health and safety consideration to long-term planning for local 19 government's adequate Disposal needs. The California Integrated Waste Management Act of 20 1989 declares that the responsibility for management of Solid Waste is a shared responsibility 21 between the state and local governments. The state requires local governments to make 22 adequate provision for at least fifteen (15) years of Garbage Disposal capacity to preserve the 23 health, safety and well-being of the public. The California Integrated Waste Management Act of 24 1989 and Oakland City Charter Article X and Oakland Municipal Code Chapter 8.28 also 25 authorize local governments to enter into exclusive franchise contracts to provide Garbage 26 handling services for the health, safety and well-being of its citizens (California Public 27 Resources Code section 40059); and,

28 WHEREAS, this Contract also advances the objectives of the federal government to encourage 29 environmentally sound Garbage management (Resource Conservation and Recovery Act of 30 1976 (RCRA), 42, U.S.C. section 6941 et seq.); ^^

31 WHEREAS, in 1990 the Alameda County Waste Reduction and Recycling Initiative Charter 32 Amendment established a county-wide solid waste diversion goal of seventy five (75) percent by 33 2010;

34 WHEREAS, in 2002 the City Council of the City of Oakland approved Resolution No. 77500 35 C.M.S., adopting a goal of seventy-five (75) percent reduction of waste going to landfills by 2010 36 in support of the Measure D goal, and the implementation date established by the Alameda 37 County Source Reduction and Recycling Board;

38 WHEREAS, in 2006 the City Council of the City of Oakland approved Resolution No. 79774 39 C.M.S. adopting a Zero Waste Goal by 2020;

City of Oakland - - ^ * v Page 1

40 WHEREAS, in 2006 the City Council of the City of Oakland approved Resolution No. 80286 41 C.M.S., adopting a Zero Waste Strategic Plan;

42 WHEREAS, the Disposal Facility is intended to be the principal facility for the Disposal of Mixed 43 Materials and Garbage generated in the CITY and Mixed Materials Residue from the 44 Processing of Mixed Materials Collected by the MM&O Collection Contractor within the CITY, as 45 well as Recyclable Materials Residue from the Processing of Recyclable Materials Collected by 46 the Residential Recyclables Contractor;

47 WHEREAS, the CONTRACTOR guarantees permitted capacity at the Disposal Facility for up to 48 thirty (30) years for Disposal of all Mixed Materials and Garbage generated in the CITY and 49 Mixed Materials Residue from the Processing of Mixed Materials Collected by the MM&O 50 Collection Contractor within the CITY;

51 WHEREAS, the City Council of the City of Oakland determines that in order to provide adequate 52 Disposal capacity, it is in the best interests of the CITY to secure a commitment from 53 CONTRACTOR for the right to a portion of the Disposal Facility's current Disposal capacity on 54 the terms and subject to the conditions set out in this Contract. The intent of this provision is, in 55 part, for the CITY to contribute to preventing the substantial environmental, aesthetic, health, 56 and safety problems that may be created from increasing volumes of Garbage in this country;

57 WHEREAS, the CONTRACTOR has represented that it has the experience and ability to 58 provide for Disposal of Mixed Materials, Garbage and Residue, at the Disposal Tipping Fees 59 provided for herein; , - ^ . ,f

60 WHEREAS, the CITY has entered into Collection Service Contracts to provide: (i) Mixed 61 Material and Organics Collection Services and (ii) Residential Recycling Collection Services 62 within the CITY;

63 WHEREAS, the CONTRACTOR receives Disposal Tipping Fees from the CITY'S MM&O 64 Collection Contractor for the acceptance of Mixed Materials, Garbage and Residue at the 65 Disposal Facility for final Disposal;

66 WHEREAS, the CITY determined that the CONTRACTOR has proposed to provide Disposal 67 Services at the Disposal Facility in a manner and on terms which are in the best interest of the 68 CITY and its residents and businesses, taking into account the qualifications and experience of 69 the CONTRACTOR, and the Disposal Tipping Fees for providing such services;

70 WHEREAS, the CITY wishes to engage the CONTRACTOR to provide the services specified 71 within this Contract, in accordance with the terms and conditions of this Contract; and

72 WHEREAS, the City Council of the City of Oakland declares its intention of maintaining 73 reasonable Disposal Tipping Fees for the Disposal of Mixed Materials, Garbage and Residue.

74 NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions 75 contained in this Contract and for other good and valuable consideration, the CITY and 76 CONTRACTOR agree as follows.

l i , -' '''-'' ''' '' ^ ^ ' ARTICLE 1. DEFINITIONS 78 For the purpose of this Disposal Services Contract ("Contract"), the definitions contained in this 79 Article shall apply unless othen/vise specifically stated. When not inconsistent with the context, 80 words used in the present tense include the future, words in the plural include the singular and 81 words in the singular include the plural. Use of the masculine gender shall include the feminine 82 gender. * * % . ^

City of Oakland ^ , Page 2

83 1.01 Bulky Goods. Materials such as, but not limited to, stoves, refrigerators, water 84 heaters, washing machines, clothes dryers, small air conditioning units, other large and small 85 household appliances, including appliances containing Freon, furniture, carpets, tires, wood, 86 household items, tires with or without rims, mattresses, clothing. Large Plant Debris, corrugated 87 cardboard, materials generated from minor home repairs or remodeling and other similar 88 materials that can be handled by two (2) people and which do not individually weigh more than 89 seventy-five (75) pounds and which are delivered to the Disposal Facility by the MM&O 90 Collection Contractor. ^ . ^ \ • - • i ,

91 1.02 Change in Law. The adoption, promulgation, or modification of any generally 92 applicable and enforceable federal, state, local joint power authority (JPA), or foreign rule, law, 93 regulation, ordinance, order, judgment, decree, permit or administrative agency guidelines 94 (excluding orders, judgments, and decrees specific to a particular facility) duly adopted and 95 promulgated officially in writing for uniform application occurring after January 1, 2013. Change 96 in Law does not include changes initiated by CONTRACTOR. Change in Law shall not include 97 such changes enacted or adopted prior to the due date for RFP proposals, or regulatory 98 changes approved prior to the effective date of this Contract (i.e. chaptered statute or final 99 adoption of regulation).

100 1.03 CITY. The CITY of Oakland, California, a municipal corporation.

101 1.04 CITY Administrator. The CITY official who is responsible for the day-today 102 operations of CITY agencies and departments or his/her designee.

103 1.05 Collect/Collection. To pick up, transport, and remove Garbage, Mixed Materials, 104 Organic Materials or Bulky Goods.

105 1.06 Collection Contractor(s). The Mixed Materials and Organic (MM&O) Collection 106 Contractor and the Residential Recycling (RR) Collection Contractor during the term of this 107 Contract. , . '4 •-..•!?.. ; ' .-.y -

108 1.07 Contract or Franchise Contract. The written document and all amendments 109 thereto, between CITY and CONTRACTOR, governing the provision of Disposal Services as 110 provided herein, including all exhibits hereto, as it may be amended from time to time.

111 1.08 Construction and Demolition Debris. Materials resulting from construction, 112 remodeling, repair or demolition operations on any house, residential property, commercial 113 building, pavement or other structure. Construction and Demolition Debris includes but is not 114 limited to rocks, soils, tree remains and other Plant Debris that results from land clearing or land 115 development operations in preparation for construction.

116 1.09 Contract Manager. The CITY employee(s) designated by the CITY Administrator

117 to act as his/her designee regarding the day to day management of this Contract.

118 ' 1.10 CONTRACTOR. WASTE MANAGEMENT OF ALAMEDA COUNTY, INC.

119 1.11 Covered Electronic Device or CED. Discarded electronic devices that the 120 California Department of Toxic Substances Control (DTSC) has determined to be a covered 121 electronic device (California Public Resources Code section 42463). CEDs include cathode ray 122 tube (CRT) devices (including televisions and computer monitors); LCD desktop monitors; 123 laptop computers with LCD displays; LCD televisions; plasma televisions; portable DVD players 124 with LCD screens; and other electronic devices as may be added by the DTSC from time to 125 time.

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126 1.12 Disposal/Dispose. The final Processing and disposition of Mixed Materials, 127 Garbage and Residue received from the Collection Contractor(s) and CITY by CONTRACTOR 128 under the terms of this Contract onto land located at the Disposal Facility, including but not 129 limited to placement as alternative daily cover, road construction, slope stabilization, or other 130 beneficial uses. Disposal does not include transformation using incineration, pyrolysis, 131 distillation, gasification, biological conversion or other similar methodologies unless authorized 132 by CITY.

133 1.13 Disposal Facility or Landfill. The Altamont Landfill located at 10840 Altamont 134 Pass Road, Livermore, California 94551 that is that is owned and operated by CONTRACTOR.

135 1.14 Disposal Services. The receipt, acceptance and Disposal of all Mixed Materials, 136 Garbage and Residue delivered by the Collection Contractor(s) and CITY to the Disposal 137 Facility.

138 1.15 Disposal Tipping Fee or Tipping Fee. The charges for acceptance of material 139 delivered to the Disposal Facility as set forth in Exhibit 1, which is attached to and included in 140 this Contract. < ' . .

141 1.16 Divert/Diversion. To prevent Recyclable Materials, Organic Materials and other 142 materials from Disposal at the Disposal Facility or transformation facilities (including facilities 143 using incineration, pyrolysis, distillation, gasification or biological conversion methods) through 144 source reduction, reuse, recycling and composting, as provided in section 41780 of the 145 California Integrated Waste Management Act of 1989, as such California Integrated Waste 146 Management Act may be hereafter amended or superseded. ^ ,

147 1.17 E-Waste. Waste that is powered by batteries or electricity, such as computers, 148 telephones, answering machines, radios, stereo equipment, tape players/recorders, 149 phonographs, videocassette players/recorders, compact disc players/recorders, calculators and 150 other items also defined as CEDs.

151 1.18 Food Scraps. Raw or cooked vegetable, fruit, grain, fish, and other items, 152 including meat, bones, dairy products, cooking fats, oil or kitchen grease; paper, cardboard, and 153 other compostable items that have been contaminated with food, cooking fats, oil or kitchen 154 grease; compostable or paper or plastics associated with food preparation or consumption, such 155 as paper towels, paper plates, paper cups, tissue, waxed paper and waxed cardboard; and 156 other materials agreed upon by the MM&O Collection Contractor and City that are capable of 157 being composted and that are set out separate from Mixed Materials for Collection as Organic 158 Materials. : « . .: ^ ' ;

159 1.19 Force Majeure. Any acts of God, such as landslides, lightning, fires, storms, 160 floods, pestilence, freezing, and earthquakes; explosions, sabotage, civil disturbances, acts of a 161 public enemy, wars, terrorism, blockades, riots, or other industrial disturbances, eminent 162 domain, condemnation or other taking, or other events of a similar nature, not caused or 163 maintained by CITY or CONTRACTOR, which event is not reasonably within the control of the 164 party claiming the excuse from its obligations due to such event, to the extent such event has a 165 significant and material adverse effect on the ability of a party to perform its obligations 166 thereunder. Force Majeure shall not include power outages, fuel shortages, strikes, work 167 stoppage or slowdown, sickout, lockout, picketing or other concerted job action conducted by or 168 directed at CONTRACTOR or CONTRACTOR'S employees or subcontractors. Force Majeure 169 shall include a Change in Law if such Change in Law prohibits a party's performance hereunder. 170 Notwithstanding the foregoing, (i) no event relating to a Disposal Facility, other than a Disposal 171 Facility operated by CONTRACTOR or a related party of CONTRACTOR, or the delivery of

City of Oakland s - Page 4

172 Garbage, Mixed Materials and/or Reside to that facility shall constitute a Force Majeure under 173 this contract unless (and then only to the extent) that such event prevents the delivery of or 174 acceptance of Garbage, Mixed Materials and Reside to or by a that facility; (ii) no failure of 175 performance by any subcontractor of CONTRACTOR shall be a Force Majeure unless such 176 failure was itself caused by a Force Majeure; (iii) except as provided herein, no event which 177 merely increases CONTRACTOR'S cost of performance shall be a Force Majeure; and () no 178 event, the effects of which could have been prevented by reasonable precautions, including 179 compliance with agreements and applicable laws, shall be a Force Majeure.

180 1.20 Garbage. All, putrescible and non-putrescible waste, non-recyclable packaging 181 and rubbish attributed to normal activities of the service address wherein the Garbage is 182 generated. Garbage does not include abandoned automobiles or those items defined herein as 183 Unacceptable Waste.

184 ^ 1.21 Gas Control Credits. All greenhouse gas credits, carbon credits and other similar 185 credits that can be received for the control of gases emitted by the Disposal Facility, such as 186 emission cap and trade allowances issued under the Regional Greenhouse Gas Initiative or the 187 rules of any of its member states, and any emission credit authorized by the Global Warming 188 Solutions Act for the reduction of greenhouse gases.

189 1.22 Guarantor. [Insert Name]

190 ' 1.23 Guaranty. The document contained in Exhibit 3, which is attached to and 191 included in this Contract that is executed by the Guarantor guaranteeing the timely and full 192 performance of CONTRACTOR'S obligations.

193 1.24 Hazardous Waste. For purposes of this Contract, Hazardous Waste shall include 194 those wastes defined as Hazardous Waste in Oakland Municipal Code Section 8.28.010 or as 195 subsequently amended. Section 8.28.010 currently defines Hazardous Waste as any 196 hazardous waste, material, substance or combination of materials which because of its quantity, 197 concentration, or physical, chemical, or infectious characteristics may cause, or significantly 198 contribute to an increase in mortality or an increase in serious irreversible, or incapacitating 199 reversible illness; or may pose a substantial present or potential risk to human health or the 200 environment when improperly treated, stored, transported, disposed or othenwise managed; and 201 which requires special handling under any present or future federal. State or local law, excluding 202 de minimis quantities of waste of a type and amount normally found in residential Garbage after 203 implementation of programs for the safe Collection, recycling, treatment and Disposal of 204 Household Hazardous Waste in compliance with Sections 41500 and 41802 of the California 205 Public Resources Code. Hazardous Waste shall include, but not be limited to: (a) substances 206 that are toxic, corrosive, inflammable or ignitable; (b) petroleum products, crude oil (or any 207 fraction thereof) and their derivatives; (c) explosives, asbestos, radioactive materials, toxic 208 substances or related hazardous materials; and (d) substances defined, regulated or listed 209 (directly or by reference) by applicable local. State or federal law as "hazardous substances," 210 "hazardous materials," "hazardous wastes," "pollutant," "reproductive toxins," "toxic waste," or 211 "toxic substances," or similarly identified as hazardous to human health or the environment, 212 including those so defined in or pursuant to any of the following statutes: (i) the Comprehensive 213 Environmental Response, Compensation and Liability Act (CERCLA) of 1980, 42 USC section 214 9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC section 1802, 215 et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC section 6901 et seq.; (iv) the 216 Clean Water Act, 33 USC section 1251 et seq.; (v) California Health and Safety Code section 217 25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC section 7901 et seq.; 218 and (vii) California Water Code section 13050; all rules and regulations adopted and

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219 promulgated pursuant to such statutes, and future amendments to or recodifications of such 220 statutes, and any regulations adopted pursuant to these statutes after the date of this Contract, 221 as well as any subsequently enacted federal or California statute relating to the use, release or 222 disposal of toxic or hazardous substances, or to the remediation of air, surface waters, 223 groundwater, soil or other media contaminated with such substances; any other hazardous or 224 toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or 225 regulated under any other applicable federal. State or local environmental laws currently 226 existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated 227 biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-products. The 228 parties intend that this definition not be limited to any particular statutory or regulatory regime 229 and that it be construed as broadly as possible.

230 1.25 Household Hazardous Waste. Any Hazardous Waste generated at a single 231 family or multi-family service address within the CITY, including, but not limited to, cleaning 232 products, automotive products, fuel, lubricants, E-Wastes, paints, painting supplies, fluorescent 233 lamps, compact fluorescent lamps, varnishes, solvents, herbicides, pesticides, fertilizers, 234 automobile batteries, household batteries, adhesives, and Universal Waste except those items 235 defined in this Contract as Recyclable Materials, including Used Oil or Used Oil Filters, and dry 236 cell household batteries.

237 1.26 Labor Disruption. Labor Disruptions are defined as strikes, slowdowns, sickout, 238 picketing, other concerted job actions, directed at CONTRACTOR, CONTRACTOR'S employees 239 or subcontractors, excluding lockouts or stoppages conducted or initiated by CONTRACTOR.

240 1.27 Landfill Gas-to-Energy Credits. All energy credits, fuel production credits and 241 other similar credits that may be available for the creation of a fuel or the production of 242 alternative energy.

243 1.28 Large Plant Debris. Oversized Plant Debris such as tree trunks, branches or 244 untreated and unpainted wood.

245 1.29 Material Recover/ Facility or MRF. Any facility, selected by the Collection 246 Contractor(s) and approved by CITY, or specifically designated by CITY, designed, operated, 247 and legally permitted for the purpose of receiving, sorting, Processing, storing, or preparing 248 Recyclable Materials, Organic Materials or Mixed Materials for sale, market, or reuse.

249 1.30 Mixed Materials. All Garbage, Recyclable Materials, Organic Materials and Bulky 250 Goods, excluding items that are source separated from Garbage. Mixed Materials do not 251 include items defined herein as Unacceptable Waste. ' . . P ^ ,

252 1.31 Mixed Materials and Organics (MM&O) Collection Contractor. The company 253 holding a current Mixed Materials and Organics Collection Services Contract with the CITY of 254 Oakland.

255 1.32 Mixed Materials Residue. Materials remaining after the Processing of Mixed 256 Materials that cannot reasonably be Diverted from the Landfill.

257 1.33 Organic Materials ("Organics"). Plant Debris, Food Scraps, compostable food 258 ware, compostable food containers, compostable paper, horse stable matter, etc. Organic 259 Materials do not include items herein defined as Unacceptable Waste.

260 1.34 Organic Materials Residue. Materials remaining after the Processing of Organic 261 Materials that cannot reasonably be Diverted from the Landfill.

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262 1.35 Person. An individual, association, partnership, corporation, joint venture, the 263 United States, the State of California, any municipality or other political subdivision thereof, or 264 any other entity whatsoever.

265 1.36 Plant Debris. Any vegetative matter resulting from normal yard and landscaping 266 maintenance or unpainted and untreated wood. Plant Debris includes palm, yucca, cactus; 267 grass clippings, leaves, pruning, weeds, branches, brush, holiday trees, and other forms of 268 horticultural waste. Plant Debris does not include items defined herein as Unacceptable Waste.

269 1.37 Post-Closure. All activities and related costs during the period subsequent to the 270 closure of the Disposal Facility or portions of the Disposal Facility in accordance with applicable 271 laws and permits. «v- • *' -

212 1.38 Processing or Process. An operation or series of operations, whether involving 273 equipment or manual labor, which sorts, enhances, upgrades, concentrates, decontaminates, 274 packages or othenwise prepares Mixed Materials, Recyclable Materials, Organic Materials or 275 Bulky Goods for a secondary use. Processing begins at the time Mixed Materials, Recyclable 276 Materials, Bulky Goods or Organic Materials are delivered to the Processing Facility and ends 277 when the Processed materials are sold or reused, and the Residue is properly Disposed.

278 1.39 Recovered Materials. Recyclable Materials or Organic Materials removed at the 279 Disposal Facility from Garbage, Mixed Materials or Residue and directed to recycling, reuse or 280 compost processing.

281 1.40 Recyclable Materials. Those materials designated in this Contract or by CITY for 282 Collection and Processing under the MM&O or RR Collection Service Contracts which are 283 segregated from Mixed Materials by the CITY or service recipient at the source of generation 284 and set out for Collection. Recyclable Materials include those materials defined by CITY, 285 including newspaper, mixed paper (including white and colored paper, magazines, telephone 286 books, chipboard, junk mail, and high grade paper) glass containers, metal containers (ferrous, 287 non-ferrous, and bi-metal Containers including empty aerosol containers), aluminum foil and 288 trays, milk and juice cartons, all narrow neck rigid plastic containers, non-bottle rigid plastics, 289 and corrugated cardboard. Recyclable Materials also include dry cell batteries generated by 290 residential service recipients and CITY facilities. . . ^ .

291 1.41 Recyclable Materials Residue. Materials remaining after the Processing of 292 Recyclable Materials that cannot reasonably be Diverted from the Landfill.

293 1.42 Residential Recycling (RR) Contractor. The company holding a current 294 Residential Recyclable Materials Collection Services Contract with the CITY of Oakland.

295 1.43 Residue. Mixed Materials Residue, Organic Materials Residue and Recyclable 296 Materials Residue.

297 1.44 Revenue Generating Resources. Resources generated by or at the Disposal 298 Facility including, but not limited to, Recovered Materials, Gas Control Credits, Landfill Gas-to-299 Energy Credits and landfill gas that can be sold or othenwise used to produce revenue for 300 CONTRACTOR.

301 1.45 Ton/Tonnage. A unit of measure for weight equivalent to two thousand (2,000) 302 standard pounds where each pound contains sixteen (16) ounces.

303 1.46 Universal Waste ("U-Waste"). Materials that the California Department of Toxic 304 Substances Control considers Universal Waste, (California Code of Regulations Title 22, Div 305 4.5, Ch 23) including materials such as batteries, thermostats, lamps, cathode ray tubes,

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306 computers, telephones, answering machines, radios, stereo equipment, tape players/recorders, 307 phonographs, video cassette players/recorders, compact disc players/recorders, calculators, 308 some appliances, aerosol cans, fluorescent lamps, certain mercury-containing devices and such 309 other items as may be added from time to time. > f , !.

310 1.47 Unacceptable Waste. Any and all waste, including but not limited to. Hazardous 311 Waste, the acceptance or handling of which would cause a violation of any permit condition or 312 legal or regulatory requirement, damage or threatened damage to CONTRACTOR'S equipment 313 or facilities, or present a substantial endangerment to the health or safety of the public or 314 CONTRACTOR'S employees; provided, that de minimis quantities or waste of a type and 315 amount normally found in Garbage, Mixed Materials, or Residue after implementation of 316 programs for the safe Collection, Processing, treatment, and Disposal of Household Hazardous 317 Waste in compliance with sections 41500 and 41802 of the California Public Resources Code 318 shall not constitute Unacceptable Waste., , . ,

319 1.48 Work Day. Any day, Monday through Saturday that is not a holiday as set forth 320 in Section 5.06 of this Contract.

321 * ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF 322 - CONTRACTOR 323 CONTRACTOR hereby makes the following representations and warranties for the benefit of 324 CITY as of the date of this Contract.

325 2.01 Corporate Status. CONTRACTOR is a corporation duly organized, validly 326 existing and in good standing under the laws of the state of California. It is qualified to transact 327 business in the State of California and has the corporate power to own its properties and to 328 carry on its business as now owned and operated and as required by this Contract.

329 2.02 Corporate Authorization. CONTRACTOR has full legal right, power and authority 330 to execute, deliver and perform its obligations under this Contract. The Board of Directors of 331 CONTRACTOR (or the shareholders if necessary) has taken all actions required by law, its 332 articles of incorporation, its bylaws or othenwise to authorize the execution and delivery of this 333 Contract. The Persons signing this Contract on behalf of CONTRACTOR have authority to do 334 so. " • - •4 • »

335 • ' 2.03 Contract Duly Executed. The Persons signing this Contract on behalf of 336 CONTRACTOR have been authorized by CONTRACTOR to do so, and this Contract has been 337 duly executed and delivered by CONTRACTOR in accordance with the authorization of its 338 Board of Directors or shareholders, if necessary, and constitutes a legal, valid, and binding 339 obligation of CONTRACTOR enforceable against CONTRACTOR in accordance with its terms.

340 2.04 No Conflict With Applicable Law or Other Documents. To the best of 341 CONTRACTOR'S knowledge, neither the execution and delivery by CONTRACTOR of this 342 Contract nor the performance by CONTRACTOR of its obligations hereunder:

343 2.04.1 Conflicts with, violates or will result in a violation of any existing applicable 344 law; or

345 2.04.2 Conflicts with, violates or will result in a breach or default under any term 346 or condition of any existing judgment, order or decree of any court, administrative agency or 347 other governmental authority, or of any existing contract or instrument to which CONTRACTOR

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348 is a party, or by which CONTRACTOR or any of CONTRACTOR'S properties or assets is 349 bound; or

350 2.04.3 Will result in the creation or imposition of any lien, charge, or * 351 encumbrance of any nature whatsoever upon any of the properties or assets of CONTRACTOR 352 which will interfere materially with CONTRACTOR'S performance hereunder.

353 2.05 No Litigation. There is no action, suit, proceeding or action at law or equity, or to 354 the best of CONTRACTOR'S knowledge, any investigation before or by any court or 355 governmental entity, pending or threatened against CONTRACTOR or othenwise affecting 356 CONTRACTOR, wherein an unfavorable decision, ruling or finding, in any single case or in the 357 aggregate, would materially adversely affect CONTRACTOR'S performance hereunder, or 358 which in any way would adversely affect the validity or enforceability of this Contract, or which 359 would have a material adverse effect on the financial condition of CONTRACTOR or its parent 360 company.

361 2.06 Financial Ability. Disclosures. No Material Change. CONTRACTOR has 362 sufficient financial resources to perform all aspects of its obligations hereunder. 363 CONTRACTOR has provided CITY with audited financial statements that present fairly, in 364 accordance with generally accepted accounting principles, the financial resources of 365 CONTRACTOR. There has been no material adverse change in CONTRACTOR'S or 366 CONTRACTOR'S parent company's financial circumstances since the date of the most recent 367 financial statements. ;-

368 2.07 Expertise. CONTRACTOR has the expert, professional, and technical capability 369 to perform all of its obligations under this Contract.

370 2.08 CONTRACTOR'S Statements. CONTRACTOR'S proposal and any other 'J 371 supplementary information submitted to CITY that CITY has relied on in negotiations and ^ 372 entering into this Contract, do not: (i) contain any untrue statement of a material fact, or (ii) omit 373 to state a material fact that is necessary in order to make the statements made, in light of the 374 circumstances in which they were made, not misleading. ?

375 2.09 CONTRACTOR'S Investigation. CONTRACTOR has made an independent : • 376 investigation (satisfactory to it) of the conditions and circumstances surrounding this Contract 377 and the work to be performed by CONTRACTOR under the Contract, and enters into this 378 Contract on the basis of that independent investigation.

379 ARTICLE 3. TERM OF CONTRACT 380 3.01 Initial Term. The term of this Contract shall be for a twenty (20) year term 381 beginning on July 1, 2015, and terminating on June 30, 2035. CITY, in its sole discretion, shall 382 have an option to extend the Contract for up to two (2) additional five (5) year periods.

383 3.01.1 First Extension. On or about April 1, 2033, CITY, at its sole discretion 384 may extend this Contract by five (5) years by notifying CONTRACTOR of its intension to do so 385 in writing.

386 3.01.2 Second Extension. On or about April 1, 2038, CITY, at its sole discretion 387 may extend this Contract by five (5) years by notifying CONTRACTOR of its intension to do so 388 in writing.

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389 3.01.3 No Right to Extension. Nothing in the foregoing paragraphs or othenwise 390 set forth in this Contract is intended to create a right in favor of CONTRACTOR to obtain either 391 the first or second extension.

392 , , ARTICLE 4. OBLIGATIONS OF CITY 'M.

393 4.01 General. CITY and CONTRACTOR acknowledge that CITY will not be 394 responsible for the payment of Disposal Tipping Fees for Mixed Materials, Garbage or Residue 395 that the Collection Contractor(s) deliver to the Disposal Facility. CITY contractually controls the 396 delivery of Mixed Materials and Garbage Collected in CITY and Residue from Mixed Materials 397 Processing activities by the MM&O Collection Contractor and shall direct the MM&O Collection 398 Contractor to deliver such Mixed Material, Garbage or Mixed Material Residue to the Disposal 399 Facility. CONTRACTOR acknowledges that CITY has no ability to direct individuals who self-400 haul to use the Disposal Facility. CITY may utilize CITY staff and vehicles to haul Mixed 401 Materials, Garbage, Bulky Goods or other materials generated by or at any building, structure, 402 yard, park, or any other facility owned, leased, or operated by CITY to the Disposal Facility. 403 CONTRACTOR shall bill CITY for CITY-hauled loads at no more than the then current Disposal 404 Tipping Fee, as calculated under this Contract, for the type of material being hauled.

405 * 4.02 Hazardous Waste Programs. CITY shall contractually require its Collection 406 Contractor(s) to develop and implement a load inspection program to detect and discover 407 Hazardous Waste and Household Hazardous Waste and shall prohibit Collection Contractor(s) 408 from knowingly delivering such material to the Disposal Facility. CITY shall encourage its 409 residents to participate in the Alameda County Household Hazardous Waste Program that 410 provides residents with a place for safe recycling, treatment, and/or disposition of Household 411 Hazardous Waste. The parties recognize, however, that CITY cannot assure CONTRACTOR 412 that such programs will prevent any amount of Hazardous Waste or Household Hazardous 413 Waste from being delivered to the Disposal Facility.

414 4.03 No Limit on Waste Prevention. CITY, Collection Contractor(s) or other CITY 415 agents will continue to develop and participate in waste prevention activities including, source 416 reduction and Diversion activities, which may reduce the amount of material delivered to the 417 Disposal Facility. Nothing in this Contract shall restrict CITY, Collection Contractor(s) or other 418 CITY agents from any such activities. ,

419 - * ARTICLE 5. OBLIGATIONS OF CONTRACTOR 420 5.01 General. During the term of this Contract, and consistent with Section 5.12 421 herein, CONTRACTOR shall provide Disposal Services under the terms and conditions of this 422 Disposal Services Contract. CONTRACTOR shall perform its obligations with respect to 423 Disposal Services hereunder in accordance with sound management and operations practice, 424 regulatory and permit requirements, applicable law, the provisions hereof, and covenants, 425 conditions, and restrictions pertaining to the Disposal of Mixed Materials, Garbage and Residue.

426 ' ; 5.02 Facility Permits.

427 5.02.1 Existing Permits. CONTRACTOR shall obtain, at its own expense, all 428 permits and licenses required by law or ordinance and maintain same in full force and effect 429 throughout the term of this Contract. CONTRACTOR shall provide proof of such permits, 430 licenses or approvals and shall demonstrate compliance with the terms and conditions of such 431 permits, licenses and approvals upon the request of the Contract Manager.

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432 5.02.1.1 CONTRACTOR shall keep CITY fully informed, in a timely 433 manner, of its progress in securing permits, or renewals of permits that occur during the term of 434 this Contract as they pertain to the Disposal operations at the Disposal Facility in accordance 435 with this Contract and the costs related thereto.

436 5.02.1.2 CONTRACTOR shall provide CITY, upon CITY'S request, with 437 copies of any applications that CONTRACTOR submits to any regulatory body in connection 438 with the issuance of new permits, or the extension, revision or modification of existing permits 439 with respect to the Disposal Facility.

440 5.02.2 CONTRACTOR Compliance with Permits. CONTRACTOR shall comply 441 with all permits, terms, and conditions of such permits as they may be amended or superseded 442 related to the operation and maintenance of the Disposal Facility. Over the term of this 443 Contract, CONTRACTOR shall be solely responsible for assuring that the facility is operated in 444 compliance with all requirements of the California Environmental Quality Act (CEQA). 445 CONTRACTOR shall be solely responsible for paying any fines or penalties imposed by 446 governmental agencies for CONTRACTOR'S noncompliance with permit terms or 447 CONTRACTOR'S failure to obtain or maintain compliance with the requirements of the permits 448 necessary to operate the Disposal Facility.

449 5.03 Operations. CONTRACTOR, at its cost and expense, shall operate the Disposal 450 Facility in the manner required by applicable law and permits. CONTRACTOR'S responsibilities 451 for the Disposal Facility shall include, but are not limited to, the following:

452 5.03.1 Operation, management, and maintenance of the Disposal Facility will 453 comply with sound management and operations practice, regulatory and permit requirements, 454 applicable law, standard industry practices, and covenants, conditions and restrictions 455 pertaining to the site; - •

456 5.03.2 Provision, operation, and maintenance of all equipment, rolling stock, and 457 supplies necessary for operations, and environmental monitoring; and

458 5.03.3 Operation, maintenance and management of leachate and Disposal 459 Facility gas management systems, groundwater monitoring and management systems, storm 460 water drainage and control systems, treatment facilities, buildings, on-site roadways, utilities, 461 and any other required facility elements.

462 5.04 Days and Hours of Operation. CONTRACTOR shall operate the Disposal 463 Facility for the receipt of Mixed Materials, Garbage and Residue in accordance with the days 464 and hours of operation as set forth in ail permits. At a minimum, CONTRACTOR shall accept 465 Mixed Materials, Garbage and Residue delivered by the Collection Contractor(s) Monday 466 through Friday from 6:00 a.m. to 5:00 p.m. and Saturday from 6:00 a.m. to 4:30 p.m. 467 CONTRACTOR may not reduce the hours or total number of hours for acceptance of Mixed 468 Materials, Garbage and Residue delivered by the Collection Contractor(s) required by the 469 Contract without the concurrence of CITY and Collection Contractor(s) except where such 470 changes are required by a change in the Disposal Facility permits.

471 5.05 Emergency Services. In the event of a tornado, major storm, earthquake, fire, 472 natural disaster or other such event, the Contract Manager may require CONTRACTOR to 473 extend the hours of operation in order to accept materials from CITY'S Collection Contractor(s). 474 However, CONTRACTOR shall not be required to extend the hours of operation to the extent 475 that such extension would cause CONTRACTOR to violate its permit(s).

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476 5.06 Holidays. CONTRACTOR shall not be required to accept Mixed Materials, 477 Garbage or Residue from the Collection Contractor(s) at the Disposal Facility on January 1, 478 Thanksgiving Day and December 25.

479 5.07 Average Turnaround Time.

480 5.07.1 In the event CONTRACTOR is not the MM&O Collection Contractor as 481 defined under this Contract, CONTRACTOR shall operate the Disposal Facility so that all 482 MM&O Collection Contractors' vehicles are processed, unloaded, and exited from the facility no 483 more than twenty (20) minutes, on average, after arriving at the scale house and mounting the 484 scale to weigh-in. For purposes of this 5.07.1, "on average" shall be calculated on a monthly 485 basis. - •• ' v. ,

486 " 5.07.2 In the event CONTRACTOR is the MM&O Collection Contractor, but 487 CITY has exercised its authority to have other personnel Collect and deliver Mixed Materials, 488 Garbage or Residue to the Disposal Facility as a result of a strike or other labor unrest, 489 CONTRACTOR shall operate the Disposal Facility so that all Collection vehicles delivering 490 Mixed Materials, Garbage and Residue from CITY are processed, unloaded, and exited from 491 the facility no more than twenty (20) minutes, on average after arriving at the scale house and 492 mounting the scale to weigh-in, unless CITY has approved a labor peace plan specifying a 493 longer time period.

494 5.08 Scale Operation.

495 • 5.08.1 Weighing Standards and Procedures. The scale house(s) at the Disposal 496 Facility entrance shall serve as the location for weighing vehicles and charging Tipping Fees as 497 provided herein. All weighing shall be conducted by CONTRACTOR or its agents by a licensed 498 weigh master. CONTRACTOR scale house personnel shall be responsible for inspecting the 499 Mixed Materials, Garbage and Residue delivered to the Disposal Facility. The Collection 500 Contractor(s)' vehicles shall be charged Tipping Fees based on the Tonnage of Mixed 501 Materials, Garbage and Residue accepted by the Disposal Facility and the applicable Disposal 502 Tipping Fees as set forth in Exhibit 1 which is attached to and included in this Contract. 503 CONTRACTOR shall weigh and record inbound weights of all Collection Contractor(s) vehicles 504 when the vehicles arrive at the Disposal Facility. In addition, CONTRACTOR shall weigh and 505 record outbound weights of such vehicles for which CONTRACTOR does not maintain tare 506 weight information. CONTRACTOR shall provide each driver with a receipt showing the date, 507 time, and quantity and type of Mixed Materials, Garbage or Residue delivered to the Disposal 508 Facility and the Tipping Fee charged for such material. The scale house computer system shall 509 compile information into various reports, which typically include for each transaction, date of 510 receipt, inbound and (as applicable) outbound times, documentation of the Tipping Fee 511 charged, inbound and outbound weights of vehicle, vehicle identification number, hauler 512 identification and/or classification, customer account, material type, vehicle type, weight of load, 513 and invoice number.

514 " 5.08.2 Maintenance and Operation. CONTRACTOR shall maintain, in 515 accordance with applicable law, at least two (2) State-certified motor vehicle scales at the 516 Disposal Facility. All scales shall be linked to a centralized computer recording and billing 517 system which shall be compatible with CONTRACTOR'S systems and account for tracking all 518 incoming and outgoing materials. CONTRACTOR shall operate such scales during facility 519 receiving hours, established in Section 5.04, provided that CONTRACTOR shall provide CITY 520 with access to weighing information at all times and copies thereof within three Work Days of 521 request from CITY.

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522 5.08.3 Vehicle Tare Weights. Between the time this Contract is executed and 523 June 1, 2015, CONTRACTOR shall weigh and determine the unloaded ("tare") weight of each 524 MM&O Collection Contractor's vehicles to be used to deliver Mixed Materials, Garbage or Mixed 525 Materials Residue to the Disposal Facility beginning Ju l y l , 2015. Before Ju ly l , 2015, 526 CONTRACTOR shall provide CITY and MM&O Collection Contractor with a report listing vehicle 527 tare weight information, which shall include, at a minimum, hauler name, tare weight, vehicle 528 identification number, and date tare weight was determined. CONTRACTOR shall, at least 529 every six (6) months, reweigh and revise tare weights for all MM&O Collection Contractors' 530 vehicles used to deliver Mixed Materials, Garbage or Mixed Materials Residue to the Disposal 531 Facility.

532 * 5.08.3.1 When CONTRACTOR is notified in writing by the MM&O 533 Contractor that new vehicles have been placed into service or significant repairs have been 534 made to vehicles, CONTRACTOR shall promptly weigh such vehicles and determine the tare 535 weight of each vehicle. Within ten (10) Work Days of weighing, CONTRACTOR shall provide 536 CITY and MM&O Collection Contractor with a report listing vehicle tare weight information. 537 CONTRACTOR, CITY, and MM&O Collection Contractor shall have the right to request re-538 weighing of vehicles up to two (2) times per year, unless there is reasonable suspicion or 539 evidence that tare weights are not accurate, in which case the scales shall be recalibrated in 540 accordance with the provision so of Section 5.08.6 and tare weights shall be updated. (Note: 541 Sections 5.08.3 and 5.08.3.1 may be deleted or modified based on the final Disposal Services 542 Contract award.)

543 5.08.4 Substitute Scales. To the extent practicable, if a scale is inoperable, 544 being tested or otherwise unavailable, all vehicles shall be weighed on the remaining operating 545 scale(s). To the extent that all Disposal Facility scales are inoperable, being tested, or 546 othenwise unavailable, CONTRACTOR shall substitute portable scales until the permanent 547 scales are replaced or repaired. CONTRACTOR shall arrange for any inoperable scale to be 548 repaired as soon as possible and, in any event, within three (3) Work Days of the failure of the 549 permanent scale. CONTRACTOR shall arrange to immediately obtain a temporary substitute 550 scale(s) should the repair of the permanent scale require more than twelve (12) hours.

551 5.08.5 Estimates. Pending substitution of portable scales or during power 552 outages, CONTRACTOR shall estimate the Tonnage of Mixed Materials, Garbage and Residue 553 delivered to the Disposal Facility by utilizing the arithmetic average of that vehicle's recorded 554 Tons of Mixed Materials, Garbage or Residue delivered on its preceding three (3) deliveries, on 555 the same day of the week, to the Disposal Facility, with the exception that the estimate of 556 Tonnage in roll-off boxes shall be made by multiplying the estimated number of cubic yards of 557 Mixed Materials, or Garbage delivered per non-compacted roll-off box by 0.25 Tons per cubic 558 yard or compacted roll-off box by 0.50 Tons per cubic yard or such other amounts as may be 559 agreed to in writing between CONTRACTOR and CITY.

560 5.08.5.1 All information required by this Article shall continue to be 561 recorded for each delivery of Mixed Material, Garbage or Residue to the Disposal Facility during 562 any period the scales are out of service.

563 ^ 5.08.6 Testing. CONTRACTOR shall test and calibrate all scales in accordance 564 with applicable law, but at least every twelve (12) months. Upon CITY request, CONTRACTOR 565 shall provide CITY with copies of test results. CONTRACTOR shall further test and calibrate 566 any or all scales upon written request therefore by CITY, within three (3) Work Days of such 567 request. If such test results indicate that the scale or scales complied with applicable law, CITY 568 shall reimburse CONTRACTOR the direct costs of such tests. If such test results indicate that

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569 the scale or scales did not comply with applicable law, CONTRACTOR shall bear the costs 570 thereof and CONTRACTOR shall at its own cost adjust and correct, consistent with the results 571 of such test, all weight measurements recorded and Tipping Fees calculated, charged and paid, 572 as the case may be, from the date of such request. ,* • >

573 5.08.7 Records. CONTRACTOR shall maintain scale records that provide 574 information such as, but not limited to, date of receipt, inbound and, (as applicable) outbound 575 time, inbound and outbound weights of vehicles. Tipping Fee charged, vehicle identification 576 number, vehicle type, type of material, hauler identification and/or classification, type, and 577 weight. CONTRACTOR shall also maintain records of all outbound materials that provide 578 information such as, but not limited to material type, weight, destination and revenue from sale 579 of materials. CONTRACTOR'S records shall, to the extent practical, include the above 580 information for all Oakland material delivered by self-haulers.

581 • 5.09 Personnel. CONTRACTOR shall engage and train qualified and competent 582 employees, including managerial, supervisory, clerical, maintenance, and operating personnel, 583 in numbers necessary and sufficient for operation of the Disposal Facility and to perform 584 CONTRACTOR'S obligations hereunder.

585 5.10 Ownership of Materials. Once Mixed Materials, Garbage or Residue are 586 delivered to the Disposal Facility by Collection Contractor(s), ownership and possession of such 587 material shall transfer directly from the Collection Contractor(s) to CONTRACTOR. 588 CONTRACTOR is hereby granted the right to retain, recycle. Process, Dispose, subject to the 589 limitations set forth in Section 1.12 on allowable Disposal methodologies, and othenwise use 590 such materials, or any part thereof, in any lawful fashion or for any lawful purpose desired by. 591 CONTRACTOR. Such right shall include CONTRACTOR'S right to retain any benefit resulting 592 from its right to retain, recycle. Process, Dispose, or reuse the Mixed Materials, Garbage or 593 Residue in accordance with the provisions of the Revenue Sharing Plan provided by 594 CONTRACTOR as set forth in Exhibit 6 which is attached to and included in this Contract.

595 " 5.11 Reiection of Unacceptable Waste. . < '

596 5.11.1 Inspection. CONTRACTOR shall use standard industry practices to 597 endeavor to detect and discover Unacceptable Waste and shall not knowingly accept 598 Unacceptable Waste at the Disposal Facility. CONTRACTOR shall comply with the inspection 599 procedures contained in its permit requirements. CONTRACTOR shall promptly modify such 600 procedure to reflect any changes in permits or applicable law. ,

601 ... 5.11.2 Unacceptable Waste Handling and Costs. CONTRACTOR shall arrange 602 for or provide transportation and delivery to an appropriately permitted facility of all 603 Unacceptable Waste, which has been accepted by CONTRACTOR, that are encountered and 604 which cannot be accepted at the Disposal Facility. CONTRACTOR is solely responsible for 605 handling and arranging transport and disposition of any Unacceptable Waste that is contained in 606 or with Mixed Materials, Garbage or Residue accepted by CONTRACTOR, and for all related 607 costs.

608 5.11.3 Remedies for Reiected Materials. If CONTRACTOR rejects material 609 delivered to the Disposal Facility by Collection Contractor(s), because it contains Unacceptable 610 Waste including Hazardous Wastes, CONTRACTOR shall direct Collection Contractor(s) to 611 remove and dispose of it in a safe and lawful manner, at the sole expense of the Collection 612 Contractor(s). In the event that Unacceptable Waste is delivered to the Disposal Facility, 613 CONTRACTOR shall be entitled to pursue whatever remedies, if any, it may have against 614 Collection Contractor(s) bringing such Unacceptable Waste to the Disposal Facility, provided

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• .' • i - • - - • •?

615 that in no case shall CITY be considered to have brought such Unacceptable Waste to the 616 Disposal Facility. In the event the Collection Contractor(s) delivers Unacceptable Waste on a 617 frequent or continuous basis and the Collection Contractor(s) refuses to provide for the proper 618 handling and disposition of such Unacceptable Waste, CONTRACTOR shall provide written 619 notice to CITY of such refusal by Collection Contractor(s). Nothing herein shall excuse 620 CONTRACTOR from the responsibility of handling such Unacceptable Waste in a lawful manner 621 and to arrange for the proper disposition of such materials. In the event the CITY delivers 622 Unacceptable Waste to the Disposal Facility, CITY shall have the same responsibility as the 623 Collection Contractor(s).

624 5.11.4 Notification. In the event CONTRACTOR is not the Collection 625 Contractor(s) and CONTRACTOR rejects delivered materials, CONTRACTOR shall 626 immediately notify the Collection Contractor(s) verbally and then follow such verbal notification 627 with written notice. The written notice will identify: the date and time of occurrence; material 628 type; material weight or volume; characterization of material; and CONTRACTOR'S reason for 629 rejection of the delivered material.

630 5.12 Reservation of Disposal Capacity. CONTRACTOR guarantees its ability to 631 accept and Dispose all Mixed Materials, Garbage and Mixed Material Residue delivered to the 632 Disposal Facility by, or on behalf of, CITY, and CITY'S MM&O Collection Contractor, or 633 successor for thirty (30) years from Ju ly l , 2015. CONTRACTOR shall be responsible for 634 reasonably estimating the quantity of capacity that it shall be required to provide to accept and 635 Dispose of all Mixed Materials, Garbage and Mixed Materials Residue generated in CITY over 636 the term of the Contract. CITY makes no representations, and is under no obligation, regarding 637 the quantity or composition of the Mixed Material, Garbage and Mixed Material Residue to be 638 delivered to the Disposal Facility by, or on behalf of, CITY and CITY'S MM&O Collection 639 Contractor or successor. . '*

640 • 5.13 Alternate Disposal Facility.

641 5.13.1 If CONTRACTOR becomes unable to accept Mixed Material, Garbage 642 and Mixed Materials Residue generated in CITY at the Disposal Facility because it did not use 643 reasonable business efforts in resisting changes, alterations and amendments to permits, or 644 due to reasons within its control and which could have been avoided by the exercise of due 645 care, or as the result of any labor unrest, including but not limited to, strike, slowdown, sick-out, 646 picketing, or other concerted job action conducted by CONTRACTOR, CONTRACTOR'S 647 employees or subcontractors, then and only if, and to the extent, CONTRACTOR is actually 648 prevented from accepting. Processing and/or transferring Mixed Materials, Garbage and Mixed 649 Materials Residue at the Disposal Facility because of a concerted labor action, CONTRACTOR 650 shall (i) accept, and Dispose of such Mixed Materials, Garbage and Mixed Materials Residue at 651 another Disposal Facility owned by it (or by another company which is owned and controlled, 652 directly or indirectly, by CONTRACTOR), at the then-current Disposal Tipping Fees in effect 653 under this Contract, and shall pay any additional transportation costs incurred by the MM&O 654 Collection Contractor in delivering the Mixed Materials, Garbage and Mixed Materials Residue 655 to the other Disposal Facility, or (ii) shall arrange for all Mixed Materials, Garbage and Mixed 656 Materials Residue to be accepted, and Disposed at a disposal facility not owned by it or an 657 affiliated company, in which case CONTRACTOR shall pay any difference in the fees charged 658 at such disposal facility plus any additional transportation costs incurred in delivering Mixed 659 Materials, Garbage and Mixed Materials Residue to the disposal facility, and the then-current 660 Disposal Tipping Fees in effect under this Contract. If as a result of a labor action directed at 661 CONTRACTOR, CONTRACTOR makes arrangements that allow for continued operation of the 662 Disposal Facility during the labor action, then it shall not be obligated to provide an alternative

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663 Disposal Facility and CITY shall be required to direct all Mixed Materials, Garbage and Mixed 664 Materials Residue to the Disposal Facility, providing operations at the Disposal Facility are 665 consistent with the requirements under this Contract.

666 5.13.2 If CONTRACTOR, despite using reasonable business efforts to resist 667 changes, alterations and amendments to permits under Section 5.02, becomes unable to accept 668 and Dispose of Mixed Materials, Garbage and Mixed Materials Residue generated in CITY at 669 the Disposal Facility, or if CONTRACTOR becomes unable to accept and Dispose of Mixed 670 Materials, Garbage and Mixed Materials Residue at the Disposal Facility as the result of an 671 event of Force Majeure as defined herein then CONTRACTOR shall, to the extent it is legally 672 able to do so, offer to accept and Dispose of Mixed Materials, Garbage and Mixed Materials 673 Residue at another disposal facility owned by it (or by another company which is owned and 674 controlled, directly or indirectly, by CONTRACTOR), at the then-current Disposal Tipping Fees 675 in effect under this Contract. CONTRACTOR has no obligation, however, to pay for additional 676 transportation costs incurred by the MM&O Collection Contractor. CITY has no obligation to 677 accept such offer and, if CITY rejects such an offer, CITY may terminate this Contract by giving 678 written notice in the manner as set forth in Article 21 of this Contract. Such termination shall be 679 effective thirty (30) calendar days after CITY has given notice.

680 5.14 Monthly Report. Beginning on July 1, 2015, and monthly during the term of this 681 Contract, CONTRACTOR shall provide a complete and accurate monthly report no later than 682 twenty (20) calendar days after the end of the reporting month. Therefore, the first report will be 683 due no later than August 20, 2015 for the reporting month of July 2015. The report shall be 684 prepared in an electronic format in a form approved by the Contract Manager and shall, if 685 requested by CITY, include data that can be uploaded by CITY. The report shall include the 686 total Tonnage of Mixed Materials, Garbage and Residue generated in the CITY that was 687 accepted and Disposed at the Disposal Facility and shall also list other applicable information, 688 including date of receipt, inbound and outbound time, inbound and outbound weights of 689 vehicles. Disposal Tipping Fee charged, vehicle identification number, vehicle type, type of 690 material, hauler identification type, and weight, separately for each of the following categories 691 for material Collected by the Collection Contractor(s) within CITY: residential Garbage, Mixed 692 Materials, Mixed Materials Residue, residential Organic Materials Residue, or residential 693 Recyclable Materials Residue, commercial Garbage, Mixed Materials, or Residue, and CITY 694 Garbage, Mixed Materials, or Residue. In addition, the report shall include Tonnage information 695 for materials generated in the CITY delivered by other companies, small vehicles, CITY hauled 696 materials, and other self-haulers. Recovered Materials and destination of outbound materials. 697 The monthly report shall also include the following using an allocation methodology, where 698 appropriate, that is acceptable to CITY:

699 5.14.1 Tonnage information by material type for material accepted at the

700 Disposal Facility;

701 5.14.2 Gross revenue from the sale of each Revenue Producing Resource;

702 ' •- , • 5.14.3 Number and nature of rejected loads during the month;

703 5.14.4 In addition CONTRACTOR shall maintain and make the following 704 information available to CITY upon request: 705 5.14.4.1 Number and nature of occurrences in which CONTRACTOR 706 identified Hazardous Waste inadvertently accepted; and

707 , 5.14.4.2 Number and nature of any notices of violation.

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708 5.15 Annual Report of Disposal Facility Activity. Beginning February 15, 2016, and 709 annually thereafter during the term of this Contract, CONTRACTOR shall submit a complete 710 and accurate annual report of Disposal Facility activity to CITY. Annual reports shall be 711 submitted no later than forty-five (45) calendar days after the end of each full or partial calendar 712 year. Therefore, the first report will be due no later than February 15, 2016, for the partial 713 calendar year of July 2015 through December 2015. The report shall be prepared in an 714 electronic format in a form approved by the Contract Manager and shall, if requested by CITY, 715 include data that can be uploaded by CITY. This report shall contain all items required by 716 Section 5.14 in addition to the following: a list of parties that CONTRACTOR has guaranteed 717 capacity to through written agreements, the annual estimated Tonnage to be delivered by each 718 party, and the term of CONTRACTOR'S capacity commitment. In the event CONTRACTOR 719 has agreements with private companies, the name of the party may be withheld from the list; 720 however, the annual Tonnage estimate and term of the commitment must be provided.

721 5.15.1 The annual report shall include information on amounts of Mixed 722 Materials, Garbage and/or Residue delivered to the Disposal Facility and Disposed, Recycled or 723 Diverted and other information that CITY may request in order to meet its related federal. State 724 and local solid waste obligations. „ .

725 5.16 Correction of Reports. In the event CONTRACTOR is notified in writing by CITY 726 ofthe need to resubmit a corrected monthly or annual report, as set forth in Section 5.14 or 5.15 727 above, CONTRACTOR shall submit the corrected report within three (3) Work Days of the 728 written notification. & ; ? ^

729 * . 5.17 Closure and Post-Closure of Landfill. CONTRACTOR shall safely manage the 730 Disposal Facility in full regulatory compliance not only during normal Disposal Facility operating 731 period but also during the Disposal Facility closure and Post-Closure periods. CONTRACTOR 732 acknowledges that it is solely responsible for: (i) the appropriate closure and Post-Closure 733 activities of the Disposal Facility; and, (ii) the establishment and funding of any reserve funds 734 required by applicable law for the purposes of providing funds for the payment of costs of 735 closure of the Disposal Facility (or any Landfill cell within the Disposal Facility) or Post-Closure 736 activities relating to the Disposal Facility. Without limitation, in no event shall CITY or Collection 737 Contractor(s) be responsible for paying any deficiencies in such required reserves. In addition, 738 CITY or Collection Contractors(s) shall have no responsibility to make any payments in the 739 event that actual closure and Post-Closure costs relating to the Disposal Facility exceed the 740 amounts upon which CONTRACTOR'S Disposal Tipping Fee was based on and the amount 741 reserved by CONTRACTOR for such purposes.

742 5.18 Right to Enter Disposal Facility and Observe Operations. Upon reasonable 743 written notice of not less than twenty-four (24) hours, CITY and its designated representative(s) 744 shall have the right to enter, observe and inspect the Disposal Facility at any time during 745 operations; conduct studies or surveys of the Disposal Facility; meet with the Disposal Facility 746 manager(s) or their representatives at any time; and meet with other employees upon request, 747 which request shall not be unreasonably denied by CONTRACTOR, provided that CITY and its 748 representatives comply with CONTRACTOR'S reasonable safety and security rules and shall 749 not interfere with the work of CONTRACTOR or its subcontractors. Upon CITY request, 750 CONTRACTOR shall make personnel available to accompany CITY employees on inspections. 751 CONTRACTOR shall ensure that its employees cooperate with CITY and respond to CITY'S 752 reasonable inquiries.

753 5.19 Provision of Emergency Services. CONTRACTOR shall provide emergency 754 services, at CITY'S request, in the event of major accidents, disruptions or natural calamities.

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755 CONTRACTOR shall be capable of providing emergency services within twenty-four (24) hours 756 of notification by CITY, or as soon thereafter as is reasonably practical, in light of the 757 circumstances. Emergency services that exceed CONTRACTOR'S obligations under this 758 Contract including, but not limited to, obligations related to facility receiving hours, the types and 759 quantities of permitted materials accepted at the Disposal Facility, and the nature of resource 760 recovery activities, shall be compensated through a modification to the scope of services using 761 procedures set forth on Section 5.20.

762 ' 5.19.1 Specifically, with reference to any legal action contesting charges for 763 services under this Contract or the MM&O Collection Contract, should a court of competent 764 jurisdiction or other regulatory agency set aside, invalidate or stay all or a portion of the 765 Maximum Services Rate or Disposal Tipping Fees established by City, Contractor agrees to 766 continue to provide Disposal Services as otherwise set forth herein. City may take such 767 urgency actions as necessary to facilitate Contractor's continuation of Disposal Services, 768 potentially including interim suspension of portions of MM&O or Disposal Services. Under such 769 circumstances. City and Contractor agree to cooperate and mutually act in good faith and, if 770 needed, immediately meet and confer to address the impact of these legal actions. Such legal 771 actions shall not be considered a change in law or force majeure event excusing Contractor's 772 performance.

773 5.19.2 If as a result of a legal action the Contractor is unable to include 774 Governmental Fees in the rates it charges for Disposal Services, then Contractor agrees, upon 775 direction from the City, to reduce its charges to MM&O Contractor in an amount corresponding 776 to the disallowed fee or charge, and shall thereafter not be required to remit the amount of the 777 disallowed fee or charge to the City or other governmental entity provided it is not collected from 778 MM&O Contractor.

779 * 5.19.3 CITY and CONTRACTOR agree to immediately meet and confer to 780 negotiate in good faith any modifications to CONTRACTOR'S obligations under this Contract to 781 ensure provision of basic Disposal Services and enable CONTRACTOR to continue to bill and 782 collect for the ongoing cost of services, including its return on capital and costs of operations. 783 Nothing in this Contract, including those provisions relating to the CITY's regulation of Maximum 784 Service Rates, shall be read to limit CONTRACTOR'S right to bill and collect for the cost of 785 continuing provision of Collection Service.

786 5.19.4 If by virtue of an order by a court of competent jurisdiction, an order 787 issued by a regulatory agency with authority, or pursuant to or an agreement between 788 petitioner/plaintiff and CITY that affects all or a portion of the Maximum Service Rates, and this 789 results in a loss to CONTRACTOR not othen/vise recovered through a temporary reduction in 790 services, CITY shall implement, with CONTRACTOR'S consent, methods to recapture any 791 losses that CONTRACTOR sustained under this Article. Such methods may include an 792 adjustment in future Maximum Service Rates, a reduction in, or adjustment to, services and/or 793 other obligations under the Contract, or such other lawful methods which may be agreed to by 794 CITY and CONTRACTOR. Any method selected shall be designed to produce revenues that 795 ensure CONTRACTOR fully recoups any and all demonstrated losses within no more than two 796 years from that date on which Maximum Service Rates were reduced (or within two years 797 following the trial court's determination in the event of a Maximum Sen/ice Rates Lawsuit), or, 798 by the termination date of said Contract if less than two (2) years remain on the Term. 799 CONTRACTOR shall have the right to terminate the Contract upon twelve (12) months written 800 notice after the two (2) year period for recoupment of CONTRACTOR losses has expired, in the 801 event CONTRACTOR has not been made whole for the demonstrated losses and no

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802 satisfactory agreement to address this shortfall has been reached between CONTRACTOR and 803 CITY.

804 5.19.5 Nothing herein is intended to imply that California Constitution Articles 805 XIII(C) or (D) apply to the Maximum Service Rates provided for under this Contract. The 806 foregoing paragraphs are merely intended as a contractual allocation of risks in the event of an 807 unanticipated event affecting the ability to impose or collect Maximum Service Rates.

808 5.20 Modifications to Scope of Service.

809 5.20.1 General. CITY may direct CONTRACTOR to perform additional services 810 (including, but not limited to, performance of resource recovery activities) or modify the manner 811 in which CONTRACTOR performs existing services (including, but not limited to, the 812 modifications to or elimination of services). CONTRACTOR'S Disposal Tipping Fee shall be 813 increased or decreased, as appropriate, to give effect to these adjustments. .

814 5.20.2 Implementing Changes in Service. CONTRACTOR shall submit a 815 proposal to perform such additional services pursuant to Section 5.20.3 below. CITY shall 816 consider CONTRACTOR'S proposal and upon CITY approval or determination, CITY will issue a 817 notice approving the modification to the scope of service and determine the amount by which 818 the Disposal Tipping Fee should be adjusted. CONTRACTOR shall implement the changes in 819 accordance with the schedule directed by CITY, regardless of whether the parties agree on the 820 Disposal Tipping Fee adjustment amount. If the parties do not agree on the adjustment amount, 821 CONTRACTOR may challenge its adequacy pursuant to Article 28.

822 . 5.20.3 Service Proposal. Within sixty (60) calendar days of CITY request for a 823 proposal to modify services, CONTRACTOR shall present its proposal to modify existing 824 services. At a minimum, the proposal shall contain a complete description of the following:

825 5.20.3.1 Program objectives and goals to be used in measuring the 826 success ofthe program as discussed in Section 5.20.5 below;

827 • : ' 5.20.3.2 Methodology to be employed (changes to equipment, staffing, 828 etc.); ' .- r >, • •

829 5.20.3.3 Equipment to be utilized (equipment number, types, capacity, 830 age, etc.); . , ..v . . •. .

831 5.20.3.4 Labor requirements (changes in number of employees by 832 classification);

833 5.20.3.5 Provision for program publicity, education, and marketing (if 834 appropriate);

835 5.20.3.6 Estimate of the impact of the service modification (increased 836 Diversion Tonnage, reduced costs, increased public service, etc.); and

837 5.20.3.7 Five (5) year projection of the financial results of the program's 838 operations in an operating statement format including documentation of the key assumptions 839 underlying the projections and the support for those assumptions, giving full effect to the 840 savings or costs to existing services.

841 5.20.3.8 CITY may request the assistance of an independent third party 842 to review the proposal. The reasonable costs of such review shall be paid by CONTRACTOR if 843 the modification to the scope of services is initiated by CONTRACTOR or, by CITY if the 844 modification to the scope of services is initiated by CITY. CONTRACTOR'S refusal to pay the

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845 reasonable cost of review of a CONTRACTOR-initiated proposal shall be grounds for CITY 846 rejection of such proposal.

847 5.20.3.9 CITY may request copies of, or access to, CONTRACTOR'S X 848 operating and business records reasonably required to verify the reasonableness and accuracy 849 of the impacts associated with a modification to the scope of services. CONTRACTOR shall 850 fully cooperate with CITY'S request and provide CITY and its agent(s) copies of or access to 851 CONTRACTOR'S records.

852 .

853 5.20.4 Termination for Cause. CITY shall have the right to terminate a 854 program for cause, at no cost to CITY or CITY'S ratepayers if CONTRACTOR is not achieving 855 the program's agreed to and defined goals and objectives as approved by CITY in accordance 856 with Section 5.20.3. Prior to such termination CITY shall meet and confer with CONTRACTOR 857 for a period of up to ninety (90) calendar days to resolve CITY'S concerns. Thereafter, CITY 858 may terminate the program if CITY reasonably believes CONTRACTOR cannot meet or is not 859 meeting the agreed to and defined project goals and objectives. Notwithstanding these 860 changes, CONTRACTOR shall continue the program during the ninety (90) day period unless 861 instructed in writing by CITY to discontinue the program.

862 5.20.5 Termination without Cause. CITY shall also have the right to terminate a 863 program without cause. Prior to such termination, and as a condition of the termination, CITY 864 shall reimburse CONTRACTOR for all costs incurred for implementation and performance ofthe 865 program that were identified in the program proposal prepared and submitted by 866 CONTRACTOR and agreed to by CITY which will have not been funded or othenwise recovered 867 through program compensation at the time the program is terminated.

868 5.21 Recovered Materials. CONTRACTOR shall use reasonable efforts to operate 869 the Disposal Facility so as to segregate Recoverable Materials. CONTRACTOR shall document 870 the quantity of Recovered Materials removed from the Garbage, Mixed Materials or Residue 871 delivered by the MM&O Collection Contractor and the quantity of such material Diverted from 872 Disposal. CONTRACTOR shall calculate the quantity of Recovered Materials Diverted from 873 Disposal on a monthly basis using a methodology acceptable to CITY and shall report thereon 874 in accordance with reporting requirements set forth herein. CONTRACTOR shall provide 875 resource recovery programs as may be agreed between CITY and CONTRACTOR to Divert 876 Recoverable Materials from Disposal. / ^

877 5.22 Other Services. CONTRACTOR shall provide additional services not othenwise 878 contemplated under this Contract at a price to be mutually agreed upon between CITY and 879 CONTRACTOR. In the event CONTRACTOR and CITY cannot agree on terms, conditions and 880 price of such service or program CITY shall have the right to procure the service of other 881 vendors or contractors to provide the requested service or program at a location other than 882 CONTRACTOR'S Disposal Facility.

883 5.23 CITY Delivered Materials. CONTRACTOR shall dispose of dirt and debris. Bulky 884 Goods, and tires with or without rims if offered for Disposal as Mixed Materials or Garbage 885 which are collected by CITY crews and delivered by CITY vehicles to the Disposal Facility.

886 5.24 Non-Permitted Companies. CONTRACTOR recognizes that collection of 887 Construction and Demolition Debris in CITY is regulated by CITY, and in most cases may only 888 be performed by companies that have obtained permits from CITY for Construction and 889 Demolition Debris collection. For those commercial loads containing materials that are 890 identified by the individual delivering the materials as being generated in CITY, CONTRACTOR


891 shall provide a monthly statement as part of the monthly report, listing the date and weight of 892 each load, and the name of the company delivering each load. CONTRACTOR shall also post, 893 on a sign in clear view of all customers, CITY'S requirement that a permit is required for 894 companies delivering Construction and Demolition Debris generated in the CITY in Roll-Off 895 Boxes to the Disposal Facility. , ..^

896 5.25 Notification of Non-Payment. CONTRACTOR shall notify the Contract Manager 897 in writing or by email in the event the MM&O Contractor fails to pay invoices submitted by 898 CONTRACTOR for the provision of Disposal Services within thirty (30) days of the due date.

899 5.26 Cessation of Disposal Services to MM&O Contractor. CONTRACTOR may 900 cease to provide Disposal Services to CITY'S MM&O Contractor, only after giving CITY thirty 901 (30) calendar days advance written notice, to be served as provided in Article 21, upon the 902 happening of the following event

903 5.26.1 CONTRACTOR has provided written notice to CITY and CITY'S MM&O 904 Contractor that CITY'S MM&O Contractor has failed to pay CONTRACTOR for Disposal 905 Services for a period of two (2) months and said non-payment has not been cured within thirty 906 (30) calendar days of receipt of written notice by CITY.

907 5.27 Service Resumption Protocol (Labor Disruptions). In the event of a Labor 908 Disruption whereby employees of CONTRACTOR do not perform work for CONTRACTOR at 909 normally anticipated levels or efficiency which affects the ability of the CONTRACTOR to 910 provide Disposal Services in accordance with this Contract, CONTRACTOR shall comply with 911 the following provisions, and only for the periods set forth below:

912 5.27.1 Within two (2) hours of notification to CONTRACTOR by labor that a 913 Labor Disruption has been authorized, CONTRACTOR shall notify the Public Works Director 914 and Contract Manager by telephone and or electronic communication and follow up with 915 confirmation to the CITY Administrator within twelve (12) hours of such notice.

916 , . < 5.27.2 CONTRACTOR will bring in alternate work forces within three (3) Work 917 Days of the commencement of a Labor Disruption for the purpose of providing Disposal 918 Services in accordance with this Contract.

919 5.27.3 If necessary, CONTRACTOR shall provide disposal at an Alternate 920 Facility pursuant to Section 5.13.

921 5.27.4 If after thirty (30) days from the commencement of a Labor Disruption 922 there is a continuing CONTRACTOR failure to materially perform the Disposal Services, such 923 failure to perform shall be considered a default under Article 11 and CITY may cancel this 924 Contract. In such an event, CITY shall not waive its right to seek damages from 925 CONTRACTOR for any increase in cost as a result of the breach of this Contract by 926 CONTRACTOR and the consequential election by CITY to cancel the Contract and move 927 fonward with alternate collection alternatives.

928 5.27.5 If CONTRACTOR fails to provide Disposal Services pursuant to Sections 929 5.27.2 and/or 5.27.3 within three (3) Work Days of a Labor Disruption, then CITY may begin to 930 impose liquidated damages under Section 24.01.1 for such failure no earlier than five (5) Work 931 Days after CONTRACTOR provides notice of the Labor Disruption to CITY. However, a claim 932 for liquidated damages may not be sought unless the Labor Disruption is caused by a dispute 933 between CONTRACTOR and the employees employed at facilities covered by this Contract.


934 =• ARTICLE 6. DISPOSAL TIPPING FEE 935 6.01 Disposal Tipping Fee. The Disposal Tipping Fee established under this Section 936 6.01 includes all costs associated with complying with all federal and State statutes, and CITY 937 and County ordinances concerning public health, safety and environmental issues and all laws, 938 regulations, rules, orders, judgments, degrees, permits, approvals, or other requirement of any 939 governmental agency having jurisdiction over the disposition of Mixed Materials, Garbage or 940 Residue that are in force on the effective date of this Contract, including any current provisions 941 that become effective on or which require compliance by a date after the effective date of this 942 Contract. The Disposal Tipping Fee comprises two (2) elements: 1) a Disposal Fee Element, 943 and 2) a Government Fee Element. ' , * >

944 6.01.1 Annual Adjustments to the Disposal Fee Element. Except as provided in 945 this Article 6, the Disposal Fee Element shall not be adjusted over the term of this Contract.

946 6.01.1.1 Annual Adjustment to Maximum Service Rates Prior to Start of 947 Disposal Services. In order to provide some mitigation for inflation between the time that the 948 Maximum Service Rates were proposed and the time when Disposal Services will commence, 949 the Maximum Collection Service Rates as set forth in Exhibit 1 to this Contract shall be adjusted 950 on July 1, 2015, by the annual change in the Consumer Price Index - All Urban Consumers, 951 Series ID cuura422sa0. Not Seasonally adjusted, San Francisco - Oakland-San Jose, California 952 for the prior calendar year, January 1, 2014, through December 31, 2014.

953 6.01.1.2 Annual Disposal Fee Element Adjustment. Beginning on 954 July 1, 2016, and annually thereafter, the Disposal Fee Element of the Disposal Tipping Fee 955 shall be adjusted by the RRI adjustment as set forth in Exhibit 2.

956 6.02 Government Fees. The Disposal Tipping Fee includes the Government Fee 957 Elements set forth in Exhibit 1.

958 6.02.1 Changes in Government Fee Elements. Government Fee Elements shall 959 be adjusted each July 1 as needed, so that they equal the then current government fees 960 required to be paid by CONTRACTOR. In the event of a new government fee, or a change in 961 an existing government fee, which becomes effective at some time other than July 1 of any 962 year, CONTRACTOR shall be compensated for such change through the inclusion of a 963 "Retroactive Element" in the next rate adjustment. CITY and CONTRACTOR agree that the 964 "Retroactive Element" shall be an amount needed to compensate CONTRACTOR for increases 965 in fees paid during the period from the inception of the fee increase through the subsequent 966 June 30 and shall not include interest, overhead or any other costs of any type. The 967 "Retroactive Element" shall only be included in the rate structure for twelve (12) months or that 968 period necessary to allow CONTRACTOR to recover all retroactive amounts, if less than twelve 969 (12) months, and shall be removed prior to calculating the rates to be set as of the subsequent 970 July 1. However, no governmental fees or charges to which CONTRACTOR agrees 971 contractually or negotiates shall be passed through to customers unless agreed to in writing by 972 CITY. ,

973 6.02.2 Payment of Governmental Fees. CONTRACTOR shall pay, when and as 974 due, any and all governmental fees to the appropriate federal. State, regional, or local 975 governmental entities that levied the fees, and shall provide CITY with proof of such payments 976 promptly upon request. * . i, •

... / , • ' y : t . • , .f ••••• . •

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977 6.03 Annual Adjustment. The annual Disposal Tipping Fee adjustment shall comprise 978 the changes in the Disposal Fee Element, subject to the limitations set forth above, and the 979 changes in the Governmental Fee Elements.

980 6.04 Changes in Disposal Fee Element Due to Changes in Law.

981 6.04.1 The Disposal Fee Element in Exhibit 1 includes all costs associated with 982 complying with all existing laws, governmental regulations and permits applicable to the 983 Disposal Facility as of the date of this Contract and including requirements that may be imposed 984 on permits for which CONTRACTOR has applied for including amendments to permits, as of the 985 effective date of this Contract. The purposes of this Section 6.04 are (a) to specify the costs of 986 compliance with laws and governmental regulations that is included in the Disposal Fee 987 Element, as well as other similar costs, whose increase may not result in an increase in the 988 Disposal Fee Element, (b) to identify those laws and governmental regulations that may be 989 enacted in the future, a proportionate share of the cost of which may be the basis for an 990 increase in the Disposal Fee Element, and (c) to specify the method by which CITY'S 991 proportionate share of such costs will be determined.

992 6.04.2 The Disposal Fee Element will not be increased as a result of any of the 993 following:

994 6.04.2.1 Costs to comply with all laws and governmental regulations 995 existing as of the Effective Date, if any, which become effective, or which require compliance by 996 a date, after the Effective Date of this Contract, including but not limited to, all closure and Post-997 Closure cost regulations.

998 6.04.2.2 Costs due to CONTRACTOR'S negligence, active or passive, 999 or intentional misconduct, or fines or penalties for violations of law.

1000 6.04.2.3 Costs for which CONTRACTOR is already responsible under 1001 other provisions of this Contract.

1002 • 6.04.2.4 Costs attributable to the classification of the Disposal Facility 1003 that are only necessary in order to allow CONTRACTOR to accept material other than Garbage 1004 or Residue at the Disposal Facility.

1005 6.04.2.5 Costs attributable to permits and amendments to permits, (i) 1006 which have been issued to CONTRACTOR, or (ii) for which CONTRACTOR has applied for by 1007 the effective date of this Contract (attached as Exhibit 7).

1008 6.04.3 The Disposal Fee Element may be increased to reflect CITY'S 1009 proportionate share, determined as provided in Section 6.04.4, of the net increase in the 1010 Disposal Fee Element attributable to the following, to the extent mandated by Changes in Laws: 1011 (1) costs of making improvements or modifications at the Disposal Facility, (2) costs of 1012 performing closure/Post-Closure monitoring at the Disposal Facility, and/or (3) costs caused 1013 directly by, or directly necessary for operations at the Disposal Facility, including costs of site-1014 specific record keeping and reporting, if such costs (in items (1), (2), and/or (3)) are necessary 1015 to comply with changes to the existing laws and governmental regulations enacted or 1016 promulgated after the effective date of this Contract, and not othen/vise excluded by virtue of 1017 Section 6.04.2.1, with new laws and governmental regulations enacted or promulgated after the 1018 effective date of this Contract and not othenwise excluded by virtue of Section 6.04.2, with new 1019 permits and changes to the terms and conditions contained in existing permits (except as 1020 provided in Section 6.04.2) applicable to the Disposal Facility.

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1021 6.04.3.1 This Article is not intended to allow the Disposal Fee Element 1022 to be increased to cover increased overhead and general or administrative expenses unless 1023 they can be specifically identified and related to disposal of Mixed Materials, Garbage or 1024 Residue Collected in CITY, e.g., a laboratory technician added at the regional level, and which 1025 are attributable to Changes in Law. , .

1026 6.04.4 Proportionate Share of Disposal Facility Costs. To the extent that the net 1027 increase in costs of complying with Changes in Law are attributable to material already in place 1028 at the Disposal Facility at the time such Change in Law occurs, then CITY'S proportionate share 1029 of the present value of such increases in costs shall be determined by multiplying such increase 1030 in costs by a fraction, the numerator of which is the amount of material as of the time of increase 1031 is computed that is deposited at the Disposal Facility which was delivered under this Contract 1032 and the denominator of which is the total amount of material then deposited at the Disposal 1033 Facility from all sources. CONTRACTOR represents that these amounts as of January 1, 2015, 1034 are approximately (to be inserted based on Contract award) Tons and (to be inserted based on 1035 contract award) Tons, respectively. The costs of compliance with Changes in Law described in 1036 this section shall be calculated on a "per Ton" basis, amortized over the useful life of the 1037 facilities constructed, and the annual amortization incorporated in the Disposal Tipping Fee over 1038 the remaining term of this Contract. The annual increase in the Disposal Fee Element 1039 attributable to the amortization of such costs shall be determined by dividing CITY'S aggregate 1040 proportionate share of such costs by (i) the remaining term of this Contract and (ii) the average 1041 number of Tons of Mixed Materials and Garbage collected from within CITY'S boundaries 1042 during the preceding year. The annual amortization described in the prior sentence shall be 1043 added to the Disposal Fee Element after said Disposal Fee Element is otherwise adjusted for 1044 said year as set forth in Section 6.01.1, adjustments to reflect changes in the Governmental 1045 Fees Element as described below, and adjustments to the Disposal Fee Element described in 1046 the following section.

1047 6.04.4.1 To the extent that the costs of complying with Changes in Law 1048 are attributable to material not yet in place at the Disposal Facility at the time such Change in 1049 Law occurs, then CITY'S proportionate share of such costs shall be determined by multiplying 1050 the present value of such costs by a fraction, the numerator of which is the average number of 1051 Tons of material from CITY Disposed of at the Disposal Facility during the preceding three (3) 1052 years multiplied by the number of years remaining in the term of this Contract and the 1053 denominator of which is the total remaining permitted air space available for Disposal at the 1054 Disposal Facility as of the date of the change. As of the effective date of this Contract, the 1055 remaining air space is approximately (to be completed based on Contract Award) Tons. The 1056 costs of compliance with Changes in Law shall be calculated on a "per Ton" basis and 1057 amortized over the remaining life of the Disposal Facility and the annual amortization 1058 incorporated in the Disposal Fee Element over the remaining term of this Contract by adding 1059 CITY'S proportionate share of such increases to the Disposal Fee Element. The annual 1060 amortization described in the prior sentence shall be added to the Disposal Fee Element after 1061 said Disposal Fee Element is otherwise adjusted for said year as set forth in Section 6.01.1, and 1062 to reflect changes in the Governmental Fees Element as described in the preceding paragraph 1063 above. In all cases in which CONTRACTOR requests an increase in the Disposal Fee Element 1064 above that provided for in Section 6.01.1 based on the costs of compliance with a Change in 1065 Law, CONTRACTOR shall provide CITY, on an annual basis, evidence showing (1) that the 1066 work required by the Change in Law has been performed, (2) the amount of costs actually 1067 incurred, and (3) that the costs incurred were necessary to comply with the Change in Law.

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1068 6.04.5 Procedures for Sharing in Cost of Changes in Laws. If CONTRACTOR 1069 believes that complying with Changes in Law will increase the costs of operating the Disposal 1070 Facility, and that it is entitled, under this Article to an increase in the Disposal Fee Element to 1071 reflect the costs of compliance, then it must follow the procedures in this Article before the 1072 Disposal Fee Element will be increased. , ,

1073 6.04.5.1 CONTRACTOR shall give CITY prompt notice (in no case less 1074 than ninety (90) days before their effective date, if possible) of the regulations, specifically 1075 identifying them and describing what changes in operations at the Disposal Facility are required, 1076 when compliance is required, and whether CONTRACTOR or the Disposal Facility is eligible for 1077 any exemptions or variances.

1078 6.04.5.2 CONTRACTOR shall thereafter submit to CITY for review and 1079 comment, its proposed method for complying with the regulations, the estimated cost of 1080 compliance, CITY'S proportionate share thereof, and the associated increase necessary in the 1081 Disposal Fee Element. CITY will act promptly on the submission.

1082 6.04.5.3 CONTRACTOR shall thereafter submit its proposed method of 1083 compliance to the appropriate regulatory agency. If the regulatory agency approves that 1084 method without conditions, the proportionate share of the costs necessary to implement that 1085 method of compliance will be the amount by which the Disposal Fee Element may be increased.

1086 * * 6.04.6 No fees or charges to which CONTRACTOR agrees contractually or 1087 negotiates shall be passed through to customers unless agreed to in writing by CITY.

1088 6.05 Payment of Taxes. CONTRACTOR shall pay, when and as due, any and all 1089 governmental assessments, or taxes incurred as a result of CONTRACTOR'S provision of 1090 services under this Contract, including estimated taxes and shall provide CITY with proof of 1091 such payments promptly upon request.

1092 6.06 Disposal Facility Closure/Post Closure Funding. CITY and CONTRACTOR 1093 agree that CITY shall not be liable for any Disposal Facility closure/Post-Closure costs for waste 1094 Disposal prior to July 1, 2015.

1095 6.06.1 CONTRACTOR acknowledges and agrees that from Ju ly l , 2015, 1096 going fonward, the Disposal Tipping Fee adequately funds CITY'S liability for Disposal Facility 1097 closure/Post -Closure costs.

1098 6.07 Proposal Development Fee. No later than thirty (30) calendar days after the 1099 execution of this Contract by CITY and CONTRACTOR, CONTRACTOR shall submit a one-1100 time proposal development fee to CITY in the amount of Two Hundred Fifty Thousand Dollars 1101 ($250,000).

1102 V ARTICLE?. INDEMNITY AND INSURANCE, 1103 7.01 CONTRACTOR'S Duty to Indemnify CITY. CONTRACTOR shall and does 1104 indemnify and hold harmless CITY, its agents (for purposes of this Article, including attorneys 1105 and consultants), officers, employees, volunteers, successors, assigns, and appointed and 1106 elected officials (collectively "Indemnitees") from and against any and all losses, liabilities, 1107 claims, suits, allegations, actions, damages, interest, penalties, fines, forfeitures, demands 1108 and/or causes of action (collectively "claims") arising from or in connection with 1109 CONTRACTOR'S performance hereunder, including but not limited to closure/Post-Closure 1110 costs associated with a Change in Law related to Tonnage received prior to the Change in Law, 1111 except to the extent such claims arise out of the negligence or willful misconduct of CITY, in

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1112 which case CONTRACTOR'S indemnification shall be reduced in proportion to CITY'S degree 1113 of comparative fault. CONTRACTOR shall indemnify and hold harmless the Indemnitees from 1114 and against all costs of investigation, litigation, negotiation or alternative dispute resolution; 1115 counsel fees; expenses incurred in obtaining expert testimony and the attendance of witnesses; 1116 and all other expenses and liabilities incurred in connection with the defense of any action or 1117 proceedings brought thereon, and from and against any orders, judgments, or decrees which 1118 may be entered therein. CITY shall provide CONTRACTOR with prompt notice of any claims, 1119 and CONTRACTOR shall assume the defense of any claim, with counsel reasonably 1120 acceptable to the Indemnitees, and CONTRACTOR shall have authority to settle any claim, with 1121 CITY'S consent which may not be unreasonably withheld and provided such settlement fully 1122 releases and extinguishes Indemnitees' alleged liability under the claim. Where a conflict of 1123 interest exists between the Indemnitees and CONTRACTOR with respect to a claim, 1124 CONTRACTOR shall provide the Indemnitees with independent legal counsel of the 1125 Indemnitees' choice, at CONTRACTOR'S expense. Without limiting the generality of the 1126 foregoing, CONTRACTOR'S indemnification shall include: personal injury, death or damage to 1127 property (including contamination); product liability, violation of federal. State, or local law; or 1128 any other claim whatsoever connected with the activities of CONTRACTOR, its subcontractors, 1129 agents, and/or employees under this Contract or on account of the performance of character of 1130 the work performed hereunder, including unforeseen difficulties, accidents, occurrence, or 1131 omissions, including but not limited to, any failure to exclude Hazardous Waste from Collection 1132 or Processing; any claim that CONTRACTOR, or its agents, subcontractors, directors, officers, 1133 employees or representatives, has breached an express or implied warranty of merchantability 1134 or fitness for particular use or any other warranty relating to any materials marketed pursuant to 1135 this Contract; or any claim that any of them has violated any license, copyright, or other 1136 limitation on CONTRACTOR'S use of computer software in connection with CONTRACTOR'S 1137 performance of services under this Contract. Notwithstanding the foregoing, CONTRACTOR 1138 shall not be required to indemnify the Indemnitees for: (i) claims resulting entirely from the acts 1139 or omissions of independent (not affiliated with Contractor) third party owners or operators of 1140 facilities approved by CITY under this Contract, where such third party acts or omissions are 1141 beyond CONTRACTOR'S control; (ii) third party claims based solely on CONTRACTOR'S 1142 delivery of the de minimis amounts of materials excluded from the definition of Hazardous 1143 Waste under this Contract to a facility approved by CITY under this Contract, and (iii) any claim 1144 that CITY set or approved Disposal Tipping Fees in violation of applicable law. Approval of 1145 insurance coverage or acceptance of work or services by CITY under this Contract does not 1146 relieve CONTRACTOR or its agents, subcontractors, directors, officers, employees, or 1147 representatives of liability under this Article.

1148 7.02 Contractor Indemnity Regarding City Approvals. To the maximum extent 1149 permitted by law, CONTRACTOR shall defend (with counsel reasonably acceptable to the City), 1150 indemnify, and hold harmless the CITY, the Oakland City Council, and their respective agents, 1151 officers, employees and volunteers (hereafter collectively called "City Parties") from any liability, 1152 damages, claim, judgment, loss (direct or indirect) action, causes of action, or proceeding 1153 (including legal costs, attorneys' fees, expert witness or consultant fees. City Attorney or staff 1154 time, expenses or costs) (collectively called "Action") against the CITY to set aside, void or 1155 annul this Agreement or any City Approvals approved concurrently herewith or any Subsequent 1156 Approval or the implementation of the same based upon an allegation that the City shall have 1157 failed to comply with the California Environmental Quality Act. The CITY may elect, in its sole 1158 discretion, to participate in the defense of said Action, and CONTRACTOR shall reimburse the 1159 CITY for its reasonable legal costs and attorneys' fees. CONTRACTOR shall not be obligated to 1160 reimburse CITY for attorneys' fees paid to outside counsel in such defense.

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1161 7.02.1 Within ten (10) calendar days of the filing of any Action as specified in the 1162 preceding paragraph, CONTRACTOR shall execute a Joint Defense Letter Agreement with the 1163 CITY, acceptable to the Office of the City Attorney, which memorializes the above obligations. 1164 These obligations and the Joint Defense Letter of Agreement shall survive termination, 1165 extinguishment, or invalidation of the City Approval or any Subsequent Approval requested by 1166 CONTRACTOR. Failure to timely execute the Letter Agreement does not relieve the 1167 CONTRACTOR of any of the obligations contained in this Section or other requirements or 1168 Conditions of Approval that may be imposed by the CITY.

1169 ' 7.03 Contractor Cooperation. In the event there is a legal challenge by a third party to 1170 the City's award of the Disposal Services Contract, CONTRACTOR agrees to cooperate with 1171 the CITY in the defense of such a challenge to the extent CITY's and CONTRACTOR'S 1172 respective legal positions are not in conflict. As a condition of the acceptance of the award of 1173 the Disposal Services Contract, CONTRACTOR agrees to waive any claims it may have against 1174 the CITY pertaining to any issues arising from and/or related to the Zero Waste Services 1175 procurement process regarding the Disposal Services Contract award.

1176 7.04 Hazardous Material Indemnification. CONTRACTOR shall indemnify, defend 1177 with counsel acceptable to CITY, and hold harmless, at CONTRACTOR'S sole cost and 1178 expense, CITY, its City Council, officers, officials, employees, volunteers and agents, and the 1179 Collection Contractor(s) (collectively, "Indemnitees") from and against any and all claims, 1180 damages, injuries, costs (including and without limit any and all response, remediation and 1181 removal costs), losses, demands, debts, liens, liabilities, causes of action, suits, legal or 1182 administrative proceedings, interest, fines, charges, penalties, and expenses (including 1183 reasonable attorneys' and expert witness fees, expenditures for investigation and remediation) 1184 and costs of any kind whatsoever, paid, imposed upon, incurred, or suffered by or asserted 1185 against any of the Indemnitees by reason of, or arising from, the presence, Disposal, escape, 1186 migration, leakage spillage, discharge, emission, release, handling or transportation of 1187 Hazardous Materials in, on, at, or under the Disposal Facility (collectively, "environmental 1188 events"), any personal injury, death, or property damage, arising out of or related to any of the 1189 environmental events; any lawsuit brought or threatened, settlement reached, or government 1190 hearing, investigation, inquiry, proceeding, or order relating to any Hazardous Materials or any 1191 of the environmental events.

1192 ' 7.04.1 Such indemnification shall apply to all events arising from or attributable 1193 to the acts or omissions of CONTRACTOR, its officers, directors, employees, whether or not 1194 negligent or otherwise culpable, in connection with or related to CONTRACTOR'S performance 1195 of this Contract, including without limit damages arising from or attributable to any operations, 1196 repair, clean-up or detoxification, or preparation and implementation of any removal, remedial, 1197 response, closure, Post-Closure or other plan (regardless of whether undertaken due to 1198 governmental action) concerning any Hazardous Materials at the Disposal Facility. For the 1199 avoidance of doubt, the foregoing indemnity is intended to operate as an agreement pursuant to 1200 section 107(e) ofthe Comprehensive Environmental Response, Compensation and Liability Act, 1201 CERCLA, 42 U.S.C. section 9607(e) and California Health and Safety Code section 25364, to 1202 defend, protect, hold harmless, and indemnify CITY from liability thereunder.

1203 7.04.2 This provision is in addition to all other provisions in this Contract and is 1204 intended to survive the end of the term of this Contract. CONTRACTOR'S Guaranty shall 1205 extend to the indemnification obligation hereunder.

1206 ' 7.05 Environmental Indemnification. CONTRACTOR shall indemnify, defend with 1207 counsel acceptable to CITY, and hold harmless, at CONTRACTOR'S sole cost and expense,

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1208 CITY, its City Council, officers, officials, employees, volunteers and agents, and the Collection 1209 Contractor (collectively, "Indemnitees") from and against any and all claims, damages, injuries, 1210 costs (including and without limit any and all response, remediation and removal costs), losses, 1211 demands, debts, liens, liabilities, causes of action suits, legal or administrative proceedings, 1212 interest, fines, charges, penalties, and expenses (including reasonable attorneys' and expert 1213 witness fees, expenditures for investigation and remediation) and costs of any kind whatsoever, 1214 paid, imposed upon, incurred, or suffered by or asserted against any of the Indemnitees by any 1215 lawsuit brought or threatened, settlement reached, or government hearing, investigation, inquiry, 1216 proceeding, or order relating to, or arising from, directly or indirectly, CONTRACTOR'S alleged 1217 failure or actual failure to comply with the environmental laws and regulations. This 1218 indemnification will not extend to environmental claims to the extent they are caused by the sole 1219 or joint or contributory negligence or intentional misconduct or omission of CITY, its officers, 1220 employees or agents, or the Collection Contractor(s).

1221 7.05.1 This provision is in addition to all other provisions in this Contract and is 1222 intended to survive the end of the term of this Contract. CONTRACTOR'S Guaranty shall 1223 extend to the indemnification obligation hereunder.

1224 ^ 7.06 Insurance. CONTRACTOR shall secure and maintain throughout the course of 1225 the Contract, at CONTRACTOR'S own cost and expense, insurance against claims for injuries 1226 to persons or damages to property which may arise from or in connection with the performance 1227 of the work hereunder by CONTRACTOR, its agents, representatives, employees or 1228 subcontractors. ' * ' ,

1229 * 7.06.1 Commercial General Liability Insurance. CONTRACTOR, at its own 1230 expense, shall maintain liability and property damage insurance for the period covered by this 1231 Contract in the amount of Five Million Dollars ($5,000,000) per occurrence. If such CGL 1232 insurance contains an aggregate limit, either the general aggregate limit shall apply separately 1233 to this project/location or the general aggregate limit shall be twice the required occurrence limit. 1234 The scope of such coverage shall be at least as broad as Insurance Services Office 1235 Commercial General Liability Coverage (occurrence form CG0001). CITY and CONTRACTOR 1236 shall review coverage within sixty (60) days of the end of calendar year 2020. Such coverage 1237 shall include, but not be limited to, protection against claims arising from: bodily and personal 1238 injury, including death resulting therefrom; damage to property resulting from activities 1239 contemplated under this Contract; product liability; and claims relating to completed operations. 1240 As respects the services provided by CONTRACTOR under this Agreement, the policy shall 1241 stipulate that this insurance is primary insurance and that no other insurance carried by CITY 1242 will be called upon to contribute to a loss suffered by CONTRACTOR hereunder, except where 1243 indemnity from CITY applies. The policy shall stipulate that this insurance shall apply 1244 separately to each of the insured parties against whom a claim is made, except with respect to 1245 the limits of the insurer's liability. Such insurance shall be with insurers and under forms of 1246 policies reasonably satisfactory in all respects to CITY and shall provide that written notice must 1247 be given to CITY thirty (30) days prior to policy cancellation. CONTRACTOR shall notify CITY 1248 within thirty (30) days of its knowledge of or any material change in coverage that impacts this 1249 Contract.

1250 7.06.2 Motor Vehicle Liability Insurance. CONTRACTOR, at its own expense, 1251 shall maintain motor vehicle liability insurance for the period covered by this Contract in the 1252 amount of Five Million Dollars ($5,000,000) per occurrence combined single limit coverage for 1253 personal and bodily injury and property damage. The scope of such coverage shall be at least 1254 as broad as Insurance Services Office form number CA 0001 Covering Automobile Liability, 1255 Code (any auto). CITY and CONTRACTOR shall review coverage within sixty (60) days of the


f .

1256 end of calendar year 2020. CITY may require reasonable changes in the amount of the 1257 insurance coverage set forth herein based on documented changes in industry standards during 1258 the five (5) year period ended June 30, 2020. Such insurance shall be with insurers and under 1259 forms of policies reasonably satisfactory in all respects to CITY and shall provide that written 1260 notice must be given to CITY thirty (30) days prior to policy cancellation. CONTRACTOR shall 1261 notify CITY within thirty (30) days of its knowledge or any material change in coverage that 1262 impacts this Contract.

1263 7.06.3 Worker Compensation Insurance. CONTRACTOR, at its own expense, 1264 shall carry and maintain full Worker Compensation Insurance, as required by the California 1265 Labor Code and Employer's Liability insurance with limits not less than Five Million Dollars 1266 ($5,000,000) for each employee per accident or disease. The scope of such coverage shall be 1267 at least as broad as the Worker's Compensation insurance required by the State of California 1268 and Employer's Liability insurance. Such insurance shall be with insurers and under forms of 1269 policies reasonably satisfactory in all respects to CITY, unless CONTRACTOR is self-insured 1270 and complies with the requirements of Section 7.04.5. Such policies shall provide that written 1271 notice must be given to CITY thirty (30) days prior to cancellation. CONTRACTOR shall notify 1272 CITY within thirty (30) days of its knowledge or any material change in coverage that impacts 1273 this Contract. The Workers Compensation policy shall be endorsed with a waiver of 1274 subrogation in favor of CITY for all work performed by CONTRACTOR, its employees, agents 1275 and subcontractors. a .

1276 f > 7.06.4 Environmental Impairment and Pollution Liability. CONTRACTOR, at its 1277 own expense, shall carry and maintain environmental impairment and pollution liability 1278 insurance for the term, including any extensions thereto, in the amount of Ten Million Dollars 1279 ($10,000,000) per loss and in annual aggregate, covering liability arising from the release of 1280 waste materials and/or irritants, contaminants or pollutants. Such coverage shall, if 1281 commercially available, without involvement of CITY, automatically broaden in its form of 1282 coverage to include legislative changes in the definition of waste materials and/or irritants, 1283 contaminants or pollutants. The policy shall stipulate this insurance is primary insurance and no 1284 other insurance carried by CITY will be called upon to contribute to a loss suffered by 1285 CONTRACTOR hereunder and waive subrogation against CITY and other additional insureds.

1286 7.06.5 Other Insurance Provisions. The liability policies are to contain, or be 1287 endorsed to contain, the following provisions:

1288 " 7.06.5.1 CITY may require reasonable changes in the amount of the 1289 insurance coverage set forth herein based on documented changes in industry standards during 1290 the five (5) year period ended June 30, 2020.

1291 7.06.5.2 CITY, its Councilmembers, directors, officers, agents, 1292 employees and volunteers are to be covered as respects: liability arising out of activities 1293 performed by or on behalf of CONTRACTOR, products and completed operations of 1294 CONTRACTOR; premises owned, occupied or used by CONTRACTOR; or vehicles owned, 1295 leased, hired or borrowed by CONTRACTOR. The coverage shall contain no special limitations 1296 on the scope of protection afforded to CITY, its Councilmembers, directors, officers, agents, 1297 employee's agents (including attorneys and consultants) or volunteers.

1298 * 7.06.5.3 For any claims related to this Contract, CONTRACTOR'S 1299 insurance coverage shall be primary insurance as respects CITY, its Councilmembers, 1300 directors, officers, agents, employees and volunteers. Any insurance or self-insurance 1301 maintained by CITY, its officers, officials, employees, agents, or volunteers shall be excess of 1302 CONTRACTOR'S insurance and shall not contribute with it.

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1303 7.06.5.4 CONTRACTOR'S insurance shall apply separately to each 1304 insured against whom claim is made or suit is brought, except with respect to the limits of the 1305 insurer's liability. CONTRACTOR shall monitor its insurance contracts and coverage at all times 1306 to provide the minimum coverage specified by this Article.

1307 . > 7.06.5.5 Each insurance policy required by this Article shall be 1308 occurrence based (except as provided in Section 7.04.5.11), shall be endorsed to state 1309 coverage, shall not be canceled except after thirty (30) days' prior written notice has been given 1310 to CITY. CONTRACTOR shall provide at least thirty (30) days' written notice to CITY, by 1311 certified mail, return receipt requested, of any insurance policy required hereunder being 1312 materially changed.

1313 7.06.5.6 CITY, its Councilmembers, directors, officers, agents, 1314 employees and volunteers shall be named as additional insured on all policies. In the event of 1315 cancellation, thirty (30) days prior written notice thereof shall be given to CITY. CONTRACTOR 1316 shall provide at least thirty (30) days' written notice to CITY, by certified mail, return receipt 1317 requested, of any insurance policy required hereunder being materially changed.

1318 7.06.5.7 CONTRACTOR shall furnish CITY with original certificates 1319 affecting coverage required by this clause. The certificates are to be signed by a Person 1320 authorized by that insurer to bind coverage on its behalf. All endorsements are to be received 1321 and approved by CITY before work commences. The insurance information required by this 1322 provision shall be provided to CITY by May 15, 2015.

1323 7.06.5.8 Insurance is to be placed with insurers with a current A.M. 1324 Best's rating of no less than A:VII or a rating which is acceptable to CITY.

1325 7.06.5.9 CONTRACTOR and insurer agree to waive all rights of 1326 subrogation against CITY for losses arising from work performed by CONTRACTOR for CITY. 1327 CONTRACTOR shall deliver certificates of insurance and/or a waiver of subrogation 1328 endorsement.

1329 7.06.5.10 The Comprehensive General Liability Insurance and 1330 Automobile Liability insurance shall be written on an occurrence basis and kept in force during 1331 the entire term of this Contract; Environmental Impairment and Pollution Liability Insurance is 1332 written on a claims-made basis and shall be maintained through continuous renewals so as to 1333 provide the same levels of coverage after the expiration of this Contract as might be necessary 1334 to protect CITY from any and all liability during all applicable statutes of limitation which might 1335 apply to claims of third parties arising out of the activities of CONTRACTOR during the term of 1336 this Contract. The deductibles or self-insured retention with respect to any Environmental 1337 Impairment and Pollution Liability Insurance, including any renewals as set forth herein, shall 1338 not exceed Five Million Dollars ($5,000,000). Hazardous Waste and Environmental Impairment 1339 Liability will include coverage for all operations of CONTRACTOR under this Contract. If 1340 coverage is on a claims made basis, the retroactive date must be shown, and must be before 1341 the date of the Contract or the beginning of the Contract work. Insurance must be maintained 1342 and evidence of insurance must be provided for at least five (5) years after completion of the 1343 Contract of work. If coverage is cancelled or non-renewed, and not replaced with another 1344 claims-made policy form with a retroactive date prior the contract effective date, CONTRACTOR 1345 must purchase "extended reporting" coverage for a minimum of five (5) years after completion of 1346 work. - * ' > .

1347 ' j ^ , 7.06.5.11 CONTRACTOR shall comply with all requirements of the 1348 insurers issuing policies. The carrying of insurance shall not relieve CONTRACTOR from any

> ; , City of Oakland . * Page 30

1349 obligation under this Contract. If any claim exceeding the amount of any deductibles or self-1350 insured reserves is made by any third Person against CONTRACTOR or any subcontractor on 1351 account of any occurrence related to this Contract, CONTRACTOR shall promptly report the 1352 facts in writing to the insurance carrier and to CITY.

1353 7.06.5.12 The limits of insurance are the minimum required limits and if 1354 CONTRACTOR maintains higher limits, CITY shall be entitled to coverage for the higher limits 1355 maintained by CONTRACTOR.

1356 7.07 Subcontractors. CONTRACTOR shall include subcontractors as insureds under 1357 its policies or shall furnish separate certificates and endorsements for each subcontractor. 1358 Coverage for subcontractors shall be subject to all requirements stated herein.

1359 7.08 Non-renewal or Cancellation. Upon notification of receipt by CITY of a notice of 1360 cancellation, material change in coverage, or expiration of policy(ies), CONTRACTOR shall file 1361 with CITY certificates for such policy(ies), satisfactory to CITY.

1362 7.09 Failure to Comply. If at any time during the term of the Contract, CONTRACTOR 1363 fails to comply with the provisions of Section 7.04 CITY may, in addition to any other remedy 1364 available to CITY, take out and maintain, at CONTRACTOR'S expense, such insurance as 1365 CITY may deem proper and charge the cost thereof to CONTRACTOR.

1366 7.10 Deductibles and Self-Insured Retentions. Any deductibles or self-insured 1367 retentions shall be for the account of CONTRACTOR and shall be the sole responsibility of 1368 CONTRACTOR.

1369 ARTICLE 8. PERFORMANCE SECURITY 1370 ** * 8.01 Performance Bond. A performance bond must be furnished by CONTRACTOR 1371 within fifteen (15) calendar days of notification to CONTRACTOR that that the Contract has 1372 been executed. CONTRACTOR shall furnish to CITY, and keep current, a performance bond in 1373 a form with language that is acceptable to CITY, for the faithful performance of this Contract and 1374 all obligations arising hereunder in an amount of Five Million Dollars ($5,000,000). The 1375 performance bond must be executed by a surety company that is acceptable to CITY; an 1376 admitted surety company licensed to do business in the State of California; has an "A:VH" or 1377 better rating by A. M. Best or Standard and Poors; and is included on the list of surety 1378 companies approved by the Treasurer of the United States

1379 8.02 Renewal. Beginning Ju ly l , 2016, and each Ju ly l thereafter, CONTRACTOR 1380 shall have the performance bond renewed annually and be executed by a surety company that 1381 is acceptable to CITY; an admitted surety company licensed to do business in the State of 1382 California; has an "A:Vir' or better rating by A. M. Best or Standard and Poors; and is included 1383 on the list of surety companies approved by the Treasurer of the United States.

1384 8.03 Letter of Credit. As an alternative to the performance bond required by Section 1385 8.01, at CITY'S option, CONTRACTOR may deposit with CITY an irrevocable letter of credit in 1386 an amount as set forth in Section 8.01 or such other amount as may be agreed to between 1387 CITY and CONTRACTOR. If allowed, the letter of credit must be issued by an FDIC insured 1388 banking institution chartered to business in the State of California, (consistent with the Uniform 1389 Customs and Practice for Documentary Credits, then current revision or similar uniform 1390 convention approved by CITY), in CITY's name, and be callable at the discretion of CITY. 1391 Nothing in this Article shall, in any way, obligate CITY to accept a letter of credit in lieu of the 1392 performance bond.


1393 ;* ARTICLE 9. CORPORATE GUARANTY 1394 9.01 In addition to the performance security required in Article 8, CONTRACTOR is 1395 required to obtain a Guaranty, and Guarantor has agreed to guarantee CONTRACTOR'S 1396 performance of this Contract, including CONTRACTOR'S indemnification obligations hereunder 1397 pursuant to a Guaranty in substantially the form attached as Exhibit 3. The Guaranty is being 1398 provided concurrently with CONTRACTOR'S execution of this Contract.

1399 > ARTICLE 10. FORCE MAJEURE ''"''-^z . 1400 10.01 The parties shall be excused from performing their respective obligations under 1401 this Contract in the event they are prevented from so performing by reason of Force Majeure.

1402 " ^ ^ ARTICLE 11. DEFAULT OF CONTRACT 1403 11.01 Termination by CITY. Subject to Article 10, CITY may cancel this Contract, 1404 except as otherwise provided below in this Article, by giving CONTRACTOR thirty (30) calendar 1405 days advance written notice, to be served as provided in Article 21, upon the happening of any 1406 one of the following events:

1407 11.01.1 CONTRACTOR shall take the benefit of any present or future 1408 insolvency statute, or shall make a general assignment for the benefit of creditors, or file a 1409 voluntary petition in bankruptcy court or a petition or answer seeking an arrangement for its 1410 reorganization or the readjustment of its indebtedness under the federal bankruptcy laws or 1411 under any other law or statute of the United States or any state thereof, or consent to the 1412 appointment of a receiver, trustee or liquidator of all or substantially all of its property; or

1413 11.01.2 By order or decree of a court, CONTRACTOR shall be adjudged 1414 bankrupt or an order shall be made approving a petition filed by any of its creditors or by any of 1415 the stockholders of CONTRACTOR, seeking its reorganization or the readjustment of its 1416 indebtedness under the federal bankruptcy laws or under any law or statute of the United States 1417 or of any state thereof, provided that if any such judgment or order is stayed or vacated within 1418 sixty (60) calendar days after the entry thereof, any notice of default shall be and become null, 1419 void and of no effect; unless such stayed judgment or order is reinstated in which case, said 1420 default shall be deemed immediate; or

1421 11.01.2.1 By, or pursuant to, or under the authority of any legislative act, 1422 resolution or rule or any order or decree of any court or governmental board, agency or officer 1423 having jurisdiction, a receiver, trustee or liquidator shall take possession or control of all or 1424 substantially all of the property of CONTRACTOR, and such possession or control shall 1425 continue in effect for a period of sixty (60) calendar days; or

1426 11.01.3 CONTRACTOR has defaulted, by failing or refusing to pay in a 1427 timely manner the franchise fees, liquidated damages or other monies due CITY and said 1428 default is not cured within thirty (30) calendar days of receipt of written notice by CITY to do so; 1429 or

1430 11.01.4 CONTRACTOR has defaulted by allowing any final judgment, in 1431 favor of CITY, for the payment of money related to performance under this Contract to stand 1432 against it unsatisfied and said default is not cured within thirty (30) calendar days of receipt of 1433 written notice by CITY to do so; or .. ....

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1434 11.01.5 In the event that the monies due CITY under Section 11.01.3 1435 above or an unsatisfied final judgment under Section 11.01.4 above is the subject of a judicial 1436 proceeding, CONTRACTOR shall not be in default if the sum of money is bonded. All bonds 1437 shall be in the form acceptable to the CITY Attorney; or

1438 11.01.6 CONTRACTOR has defaulted, by failing or refusing to perform or 1439 observe the terms, conditions or covenants in this Contract or any of the rules and regulations 1440 promulgated by CITY pursuant thereto or has wrongfully failed or refused to comply with the 1441 instructions of the Contract Manager relative thereto and said default is not cured within thirty 1442 (30) calendar days of receipt of written notice by CITY to do so, or if by reason of the nature of 1443 such default, the same cannot be remedied within thirty (30) calendar days following receipt by 1444 CONTRACTOR of written demand from CITY to do so, CONTRACTOR fails to commence the 1445 remedy of such default within said thirty (30) calendar days following such written notice or 1446 having so commenced shall fail thereafter to continue with diligence the curing thereof with 1447 CONTRACTOR having the burden of proof to demonstrate (a) that the default cannot be cured 1448 within thirty (30) calendar days, and (b) that it is proceeding with diligence to cure said default, 1449 and such default will be cured within a reasonable period of time; or

1450 11.01.7 CONTRACTOR fails to perform its obligations under this Contract, 1451 and: (i) if the failure or refusal of CONTRACTOR to perform Disposal Services required by this 1452 Contract has created an imminent threat to public health and is not cured within (2) Work Days 1453 after receiving written notice from CITY specifying the breach; or (ii) in the case of any other 1454 breach of the Contract, the breach continues for more than thirty (30) calendar days after 1455 receiving written notice from CITY for the correction thereof, provided that where such breach 1456 cannot be cured within such thirty (30) calendar day period, CONTRACTOR shall not be in 1457 default of this Contract if CONTRACTOR shall have commenced such action required to cure 1458 the particular breach within ten (10) calendar days after such notice, and it continues such 1459 performance diligently until completed. However, if CONTRACTOR has complied with its 1460 obligations to arrange and pay for Disposal of Mixed Materials, Garbage and Residue at an 1461 alternative disposal facility as set forth in Section 5.13, it shall not be in default of this Contract.

1462 . 11.02 Effective Date of Termination. In the event of the aforesaid events specified 1463 above, and except as otherwise provided in said subsections, termination shall be effective 1464 upon the date specified in CITY'S written notice to CONTRACTOR and upon said date this 1465 Contract shall be deemed immediately terminated and upon such termination all liability of CITY 1466 under this Contract to CONTRACTOR shall cease, and CITY shall have the right to call the 1467 performance security instrument and shall be free to negotiate with other contractors for the 1468 operation ofthe herein specified services.

1469 11.03 Right to Perform. If this Contract is suspended and/or terminated due to 1470 CONTRACTOR default, CITY shall have the right to perform and complete, by contract or 1471 otherwise, the work herein or such part thereof as it may deem necessary and incur all 1472 expenses necessary for completion of the work, including, but not limited to. Disposal of Mixed 1473 Materials, Garbage and Residue at an alternative disposal facility, but not including any right to 1474 operate the Disposal Facility. If such expenses (including, but not limited to, the actual fees 1475 charged for Disposal) exceed the amounts which would have been paid to CONTRACTOR 1476 under this Contract, if it had been fully performed by CONTRACTOR, then CONTRACTOR shall 1477 pay for the remaining term of this Contract, the amount of such excess costs to CITY within 1478 thirty (30) calendar days of CONTRACTOR'S receipt of a claim for reimbursement, and 1479 evidence of costs incurred, from CITY.

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4>;»

1480 11.04 Immediate Termination. CITY may terminate this Contract immediately upon 1481 written notice to CONTRACTOR (provided CITY has first given CONTRACTOR written notice of 1482 breach and ten (10) Work Days to cure) in the event CONTRACTOR fails to provide and 1483 maintain the performance security as required by this Contract, CONTRACTOR fails to obtain or 1484 maintain insurance policies endorsements as required by this Contract, or CONTRACTOR fails 1485 to provide the proof of insurance as required by this Contract.

1486 11.05 Termination Cumulative. CITY'S right to terminate this Contract is cumulative to 1487 any other rights and remedies provided by law or by this Contract.

1488 , ARTICLE 12. LEGAL REPRESENTATION 1489 12.01 Acknowledgement. It is acknowledged that each party was, or had the 1490 opportunity to be, represented by counsel in the preparation of and contributed equally to the 1491 terms and conditions of this Contract and, accordingly, the rule that a Contract shall be 1492 interpreted strictly against the party preparing the same shall not apply herein due to the joint 1493 contributions of both parties.

1494 . " ARTICLE 13. FINANCIAL INTEREST ^ . 1495 13.01 Representation. CONTRACTOR warrants and represents that no elected official, 1496 officer, agent or employee of CITY has a financial interest, directly or indirectly, in this Contract 1497 or the compensation to be paid under it and, further, that no CITY employee who acts in the 1498 CITY as a "purchasing agent" as defined in the appropriate section of California Statutes, nor 1499 any elected or appointed officer of CITY, nor any spouse or child of such purchasing agent, 1500 employee or elected or appointed officer, is a partner, officer, director or proprietor of 1501 CONTRACTOR and, further, that no such CITY employee, purchasing agent, CITY elected or 1502 appointed officer, or the spouse or child of any of them, alone or in combination, has a material 1503 interest in CONTRACTOR. Material interest means direct or indirect ownership of more than 1504 five (5) percent of the total assets or capital stock of CONTRACTOR.

1505 3^^ ARTICLE 14. INDEPENDENT CONTRACTOR 1506 14.01 In the performance of services pursuant to this Contract, CONTRACTOR shall be 1507 an independent contractor and not an officer, agent, servant or employee of CITY. 1508 CONTRACTOR shall have exclusive control of the details of the services and work performed 1509 and over all persons performing such services and work. CONTRACTOR shall be solely 1510 responsible for the acts and omissions of its officers, agents, employees, contractors and 1511 subcontractors, if any. Neither CONTRACTOR nor its officers, employees, agents, contractors 1512 or subcontractors shall obtain any right to retirement benefits. Workers Compensation benefits, 1513 or any other benefits which accrue to CITY employees and CONTRACTOR expressly waives 1514 any claim it may have or acquire to such benefits.

1515 ^^ * ^ ^ - ARTICLE 15. LAWS TO GOVERN 1516 15.01 The law of the state of California shall govern the rights, obligations, duties and 1517 liabilities of CITY and CONTRACTOR under this Contract and shall govern the interpretation of 1518 this Contract. • , • .t - : ,

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City of Oakland * if ; • Page 34

1519 - ARTICLE 16. CONSENT TO JURISDICTION 1520 16.01 The parties agree that any litigation between CITY and CONTRACTOR 1521 concerning or arising out of this Contract shall be filed and maintained exclusively in the 1522 municipal or superior courts of Alameda County, state of California, or in the United States 1523 Court for the Northern District of California to the fullest extent permissible by law. Each party 1524 consents to service of process in any manner authorized by California law.

1525 , ARTICLE 17. ASSIGNMENT 1526 17.01 CITY Right to Terminate in Event of Assignment. CONTRACTOR acknowledges 1527 that this Contract involves rendering a vital service to CITY's residents and businesses, and that 1528 CITY has selected CONTRACTOR to perform the services specified herein based on (1) 1529 CONTRACTOR'S experience, skill and reputation for conducting its operations in a safe, 1530 effective and responsible fashion, at all times in keeping with applicable environmental laws, 1531 regulations and best management practices for Disposal of Mixed Materials, Garbage and 1532 Residue and (2) CONTRACTOR'S financial resources to maintain the required equipment and 1533 to support its indemnity obligations to CITY under this Contract. CITY has relied on each of 1534 these factors, among others, in choosing CONTRACTOR to perform the services to be 1535 rendered by CONTRACTOR under this Contract. Any assignment by CONTRACTOR, either 1536 directly or indirectly, in whole or in part, of its rights or any interest it may have in this Contract 1537 including any transfer of its stock or assets to a third party shall give CITY, in its sole discretion, 1538 the basis for terminating this Contract in whole or in part upon the giving of a thirty (30) day 1539 written notice to CONTRACTOR. In the event such notice of termination is given as authorized 1540 by this Article, CONTRACTOR shall continue, for up to six (6) months following notice of 1541 termination, to provide any or all of the services it is obligated to perform under this Contract if 1542 requested by CITY in writing. CITY'S right to terminate the Contract in whole or in part shall 1543 expire unless exercised within sixty (60) days of receiving written notice from CONTRACTOR as 1544 provided herein of an assignment by CONTRACTOR. "Assignment" or "Assign" as used in this 1545 Contract shall include, but not be limited to, (i) a sale, exchange or other transfer of substantially 1546 all of CONTRACTOR'S assets dedicated to any or all of the services to be provided under this 1547 Contract to a third party (ii) a sale, exchange or other transfer of outstanding common stock of 1548 CONTRACTOR to a third party provided said sale, exchange or transfer results in a change of 1549 control of CONTRACTOR or any sale, exchange or transfer of the common stock of 1550 CONTRACTOR which results in the effective transfer of control of substantially all of 1551 CONTRACTOR'S assets dedicated to any or all of the services to be provided under this 1552 Contract to a third party; (iii) any dissolution, reorganization, consolidation, merger, re-1553 capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow 1554 arrangement, liquidation or other transaction to which results in a change of ownership or 1555 control of CONTRACTOR; (iv) any assignment by operation of law, including insolvency or 1556 bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution 1557 being levied against this Contract, appointment of a receiver taking possession of 1558 CONTRACTOR'S property, or transfer occurring in the event of a probate proceeding; and (v) 1559 any combination of the foregoing (whether or not in related or contemporaneous transactions) 1560 which has the effect of any such transfer or change of ownership, or change of control of 1561 CONTRACTOR, or substantially all of the assets used for providing any of the services under 1562 this Contract to a third party. For purposes of this Contract, an "assignment" shall not include a 1563 sale, transfer or exchange with [ ] or any of its subsidiaries, 1564 successors or assigns, provided such affiliated entity has financial capabilities equal to or 1565 greater than CONTRACTOR.

7 " City of Oakland Page 35

1566 [For purposes of this Contract, an "assignment" shall not include a sale, transfer or change in 1567 control if ownership of Contractor or any Affiliate is transferred to either individuals in 1568 consanguinity with the Duong Family, or trusts or other entities owned or controlled by a 1569 member or members of the Duong Family, provided that such trusts or other entities possess 1570 the business, professional, and technical expertise to manage and collect Recyclable Materials, 1571 and possess the equipment, facilities, and employee resources required to perform this under 1572 this Contract. Within sixty (60) Days prior to any such transfer of ownership or to trusts or other 1573 entities owned by a member or members of the Duong Family, Contractor shall provide written 1574 notice to the City and provide City with an opportunity to meet and confer with the new owner to 1575 discuss matters related to this Contract. Such sixty (60) Day notice shall not be required in the 1576 event of cases involving death or legal incapacity. In such case, notice shall be provided as 1577 soon as practical. Notwithstanding the foregoing, the skill, acumen, and relevant experience of 1578 the day-to-day management of Contractor shall remain satisfactory to the City notwithstanding a 1579 change in ownership.]

1580 17.02 Procedure for CITY Evaluation of Proposed Assignment. If CONTRACTOR 1581 requests CITY'S consideration of and consent to an assignment, CONTRACTOR shall meet the 1582 following preliminary requirements: . ^

1583 17.02.1 CONTRACTOR shall pay CITY its reasonable expenses for 1584 attorney's fees, consultant's fees and investigation costs necessary to investigate the suitability 1585 of any proposed assignee, and to review and finalize any documentation required as a condition 1586 for approving any such assignment; " * ?

1587 # 17.02.2 CONTRACTOR shall furnish CITY with audited financial 1588 statements of the proposed assignee's operations for the immediately preceding three (3) 1589 operating years;

1590 17.02.3 CONTRACTOR shall furnish CITY with satisfactory proof that: (1) 1591 the proposed assignee has at least ten (10) years of Mixed Materials, Garbage and Residue 1592 Disposal experience on a scale equal to or exceeding the scale of operations conducted by 1593 CONTRACTOR under this Contract; (2) in the last five (5) years, the proposed assignee has not 1594 suffered any significant citations or other censure from any federal. State or local agency having 1595 jurisdiction over its Mixed Materials, Garbage and Residue Disposal operations due to any 1596 significant failure to comply with State, federal or local environmental laws and the assignee has 1597 provided CITY with a complete list of such citations and censures; (3) the proposed assignee 1598 has at all times conducted its operations in an environmentally safe and conscientious fashion; 1599 (4) the proposed assignee conducts its Mixed Materials, Garbage and Residue Disposal 1600 practices in accordance with sound management practices in full compliance with all federal, 1601 State and local laws regulating the Disposal of Mixed Materials, Garbage and Residue including 1602 hazardous substances; and, (5) of any other information required by CITY to ensure the 1603 proposed assignee can fulfill the terms of this Contract in a timely, safe and effective manner.

1604 17.03 CONTRACTOR Default. Under no circumstances shall CITY be obliged to 1605 consider any proposed assignment if CONTRACTOR is in default at any time during the period 1606 of consideration.

1607 17.04 CITY Discretion to Accept or Reiect Assignment. CITY, in its sole discretion, 1608 may accept, reject or conditionally accept the proposed assignment. If CITY accepts a partial 1609 assignment, the corporate guaranty provided in Section 1.23 and Exhibit 3 and the performance 1610 security provided in Article 8 shall remain in effect unless CITY in its sole discretion consents to 1611 adequate substitutes by the assignee or to a novation, and absent a novation CONTRACTOR 1612 shall not be released from liability under this Contract.

City of Oakland v • Page 36

i i^r^^K . . . . . . . • . :

1613 17.05 Subcontractor. The use of a subcontractor to perform services under this ^6^4 Contract shall not constitute delegation of CONTRACTOR'S duties provided that 1615 CONTRACTOR has received prior written authorization from CITY to subcontract such services ^ j 1616 and the Contract Manager has approved a subcontractor who will perform such services. 1617 CONTRACTOR shall be responsible for directing the work of CONTRACTOR'S subcontractors . < 1618 and any compensation due or payable to CONTRACTOR'S subcontractor shall be the sole \ 1619 responsibility of CONTRACTOR. CITY shall have the right to require the removal of any j 1620 approved subcontractor for reasonable cause. No subcontractors have been approved by I 1621 CITY. , •

1622 " ARTICLE 18. COMPLIANCE WITH LAWS 1623 18.01 In the performance of this Contract, CONTRACTOR shall comply with all 1624 applicable laws, regulations, ordinances and codes ofthe federal. State and local governments, 1625 including without limitation those of CITY.

1626 18.02 CITY shall provide written notice to CONTRACTOR of any planned amendment 1627 to the CITY Ordinances that would affect the performance of CONTRACTOR'S services or 1628 obligations pursuant to this Contract, in which case Change in Law could apply. Such notice 1629 shall be provided at least thirty (30) calendar days prior to the Oakland City Council's approval 1630 of such an amendment. :> . .« * %

1631 ; * ARTICLE 19. WAIVER 1632 19.01 Waiver by CITY or CONTRACTOR of any breach for violation of any term 1633 covenant or condition of this Contract shall not be deemed to be a waiver of any other term, 1634 covenant or condition or any subsequent breach or violation of the same or of any other term, 1635 covenant or condition. The subsequent acceptance by CITY of any fee, tax, or any other 1636 monies which may become due from CONTRACTOR to CITY shall not be deemed to be a 1637 waiver by CITY of any breach for violation of any term, covenant or condition of this Contract.

1638 ARTICLE 20. POINT OF CONTACT f * ' 1639 20.01 The day-to-day dealings between CONTRACTOR and CITY shall be between 1640 CONTRACTOR and the Contract Manager.

1641 • * ARTICLE 21. NOTICES 1642 21.01 Except as provided herein, whenever either party desires to give notice to the 1643 other, it must be given by written notice by registered or certified mail, or by other methods 1644 designated for next day delivery with proof of receipt, addressed to the party for whom it is 1645 intended, at the place last specified and to the place for giving of notice in compliance with the 1646 provisions of this paragraph. For the present, the parties designate the following as the 1647 respective persons and places for giving of notice: • '

1648 As to CITY: , ' '

1649 City Administrator I ' ' ^ 1650 Office of the City Administrator ' -j. . V* 1651 CITY OF OAKLAND ' ' ' 1652 One Frank Ogawa Plaza, Third Floor - * . • 1653 Oakland, CA 94612 '

City of Oakland ^ . ; . - . ^ Page 37

• "••' •• f • ...... • . • . • ••«• ' . i"

A .

1654 1655

1656 1657 1658 1659 1660 1661 1662 1663 1664 1665 1666 1667 1668 1669 1670 1671 1672 1673

1674 1675 1676 1677 1678 1679 1680

1681

1682 1683 1684 1685 1686 1687 1688

Telephone: (510)238-3301 E-mail: [email protected]

With copies to:

Director of Public Works Public Works Agency • CITY OF OAKLAND 250 Frank Ogawa Plaza, Suite 4314 Oakland, CA 94612 Telephone (510) 238-4470 E-mail: [email protected]

City Attorney !""^ Office of the City Attorney ' CITY OF OAKLAND ' , One Frank Ogawa Plaza, Sixth Floor ^ Oakland, CA 94612 Telephone: (510)238-3601 E-mail: [email protected] ' ;

Director of Finance and Management Finance and Management Agency CITY OF OAKLAND 150 Frank Ogawa Plaza, Suite 5215 Oakland, CA 94612 Telephone: (510)238-2220 E-mail: [email protected] ., :;

As to CONTRACTOR:

[Title] [Company] [Street Address] ^ [City, State, Zip] [Telephone: (xxx) xxx-xxxx] [E-mail: ]

1689 21.02 Notices shall be effective when received at the address as specified above. 1690 Changes in the respective address to which such notice is to be directed may be made by 1691 written notice with a courtesy copy provided by email. The original of items that are transmitted 1692 by email must also be mailed as required herein. . ..

1693 ARTICLE 22. NONDISCRIMINATION 1694 22.01 Nondiscrimination. In the performance of all work and services under this 1695 Contract, CONTRACTOR shall not discriminate against any person on the basis of such 1696 person's race, color, religion/religious creed, sex/gender, pregnancy, marital status, age, 1697 national origin/ancestry, physical and/or mental disability, medical condition, sexual orientation,


1698 gender identity, military or veteran status, or status in any other group protected by federal, 1699 State or local law. CONTRACTOR shall comply with all applicable local. State and federal laws 1700 and regulations regarding nondiscrimination, including those prohibiting discrimination in 1701 employment.

1702 ARTICLE 23. CONTRACTOR'S RECORDS 1703 23.01 CONTRACTOR shall maintain all documents and records that demonstrate 1704 performance under this Contract for a minimum period of five (5) years, or for any longer period 1705 required by law, from the date of termination or completion of this Contract.

1706 23.02 Any records or documents required to be maintained pursuant to this Contract 1707 shall be made available for inspection, copy or, audit at any time during regular business hours, 1708 upon written request by the Contract Manager, City Attorney, City Auditor, CITY Administrator, 1709 or a designated representative of any of these officers. Copies of such documents shall be 1710 provided to CITY for inspection at CITY offices when it is practical to do so. Othenwise, unless 1711 an alternative site is mutually agreed upon, the records shall be available at CONTRACTOR'S 1712 address indicated for receipt of notices in this Contract.

1713 23.03 Where CITY has reason to believe that such records or documents may be lost 1714 or discarded due to the dissolution, disbandment or termination of CONTRACTOR'S business, 1715 CITY may, by written request or demand of any of the above named officers, require that 1716 custody of the records be given to CITY and that the records and documents be maintained in 1717 CITY offices. Access to such records and documents shall be granted to any party authorized 1718 by CONTRACTOR, CONTRACTOR'S representatives or CONTRACTOR'S successor-in-1719 interest.

1720 ARTICLE 24. QUALITY OF PERFORMANCE OF CONTRACTOR 1721 24.01 Liquidated Damages. The parties further acknowledge that consistent and 1722 reliable Disposal Services are of utmost importance to CITY and that CITY has considered and 1723 relied on CONTRACTOR'S representations as to its quality of service commitment in awarding 1724 the Contract to it. The parties further recognize that some quantified standards of performance 1725 are necessary and appropriate to ensure consistent and reliable service and performance. The 1726 parties further recognize that if CONTRACTOR fails to achieve the performance standards, or 1727 fails to submit required documents in a timely manner, CITY, Collection Contractor(s) and 1728 CITY'S residents and businesses will suffer damages, and that it is and will be impractical and 1729 extremely difficult to ascertain and determine the exact amount of damages. Therefore, without 1730 prejudice to CITY'S right to treat such non-performance as an event of default under Article 11 1731 the parties agree that the liquidated damages amounts defined in this Article represent 1732 reasonable estimates of the amounts of such damages considering all of the circumstances 1733 existing on the effective date of this Contract, including the relationship of the sums to the range 1734 of harm to CITY that reasonably could be anticipated and the anticipation that proof of actual 1735 damages would be costly or impractical. In placing their initials at the places provided, each 1736 party specifically confirms the accuracy of the statements made above and the fact that each 1737 party has had ample opportunity to consult with legal counsel and obtain an explanation of the 1738 liquidated damage provisions at the time that the Contract was made.

1739 *; V CITY Initial Here CONTRACTOR Initial Here

1740 • 24.01.1 CONTRACTOR agrees to pay (as liquidated damages and not as 1741 penalty) the following amounts:

City of Oakland > , Page 39

Liquidated Damages

Item Amount

a. Failure to maintain minimum operation hours or days. (Section 5.04)

$1,000 per Work Day.

b. Failure to turnaround Collection Contractor vehicles at the Disposal Facility as set forth in Section 5.07.

$100 per occurrence.

c. Failure to provide adequate primary and alternate capacity to accept and Dispose of Mixed Materials, Garbage and/or Residue. (Sections 5.12 and 5.13)

$10,000 per calendar day.

d. Failure to submit complete and accurate required reports to CITY in a timely manner. (Sections 5.14 and 5.15)

$300 per calendar day.

e. Failure to correct submittal of inaccurate data within three (3) Work Days (or such other time period as may be agreed to in writing between CITY and * . CONTRACTOR) of written notification by CITY as set forth in Section 5.16.

$500 per incident per calendar day.

f. omitted $150 per calendar day.

g-Failure to comply with the insurance provisions of this Contract as set forth in Article 7. « •


h. Failure to cure non-compliance with the provisions of this Contract in the manner and time set forth in the Contract (Various Articles).


1742 . . .

1743 24.02 CITY may determine the occurrence of events giving rise to liquidated damages 1744 through the obsen/ation of its own employees or representative or investigation of complaints by 1745 Collection Contractor(s).

1746 24.03 Liquidated damages shall apply to service disruptions caused by a 1747 CONTRACTOR-initiated lockout or similar CONTRACTOR-initiated work stoppage.

1748 24.04 Procedure for Review of Liquidated Damages. Before assessing liquidated 1749 damages pursuant to Items b and c of this Article 24, the CITY and CONTRACTOR shall meet 1750 and confer regarding these specific areas of substandard performance. If, despite such 1751 meeting, incidents of the type(s) addressed at the meeting continue to occur, the CITY may 1752 proceed to assess liquidated damages as provided above.

1753 24.04.1 The assessment shall become final unless, within thirty (30) 1754 calendar days of the date of the notice of assessment, CONTRACTOR provides a written 1755 request for a meeting with the Contract Manager to present evidence that the assessment 1756 should not be made.


1757 24.04.2 The Contract Manager shall schedule a meeting between 1758 CONTRACTOR and the CITY Administrator or the CITY Administrator's designee as soon as 1759 reasonably possible after timely receipt of CONTRACTOR'S request.

1760 24.04.3 The CITY Administrator or the CITY Administrator's designee shall 1761 review CONTRACTOR'S evidence and render a decision sustaining or reversing the liquidated 1762 damages as soon as reasonably possible after the meeting. Written notice of the decision shall 1763 be provided to CONTRACTOR.

1764 24.04.4 In the event CONTRACTOR does not submit a written request for 1765 a meeting within thirty (30) calendar days of the date of the Notice of Assessment, the Contract 1766 Manager's determination shall be final and CONTRACTOR shall submit payment to CITY no 1767 later than ten (10) Work Days following final determination. If CITY does not receive 1768 CONTRACTOR'S payment within the ten (10) Work Day period, CITY may proceed against the 1769 letter of credit required by Section 24.04 of this Contract

1770 ' 24.04.5 CITY'S assessment or Collection of liquidated damages shall not 1771 prevent CITY from exercising any other right or remedy, including the right to terminate this 1772 Contract, for CONTRACTOR'S failure to perform the work and services in the manner set forth 1773 in this Contract.

1774 ARTICLE 25. LABOR PEACE 1775 25.01 General. CITY has determined that the level of vulnerability of the proposed 1776 Contract to labor disputes is sufficient to warrant that labor peace is essential to the proprietary 1777 interests of CITY. Therefore, CONTRACTOR shall at all times comply with the provisions of 1778 CONTRACTOR'S Employee and Labor Relations Plan set forth in Exhibit 5 to this Contract.

1779 ARTICLE 26. SEVERABILITY 1780 . 26.01 If any provision of this Contract or the application of it to any Person or situation 1781 shall to any extent be held invalid or unenforceable, the remainder of this Contract and the 1782 application of such provisions to persons or situations other than those as to which it shall have 1783 been held invalid or unenforceable, shall not be affected, shall continue in full force and effect, 1784 and shall be enforced to the fullest extent permitted by law. " , *

1785 ARTICLE 27. RIGHT TO REQUIRE PERFORMANCE 1786 27.01 The failure of either party at any time to require performance by the other of any 1787 provision hereof shall in no way affect the right thereafter to enforce same. Nor shall waiver by 1788 a party of any breach of any provision hereof be taken or held to be a waiver of any succeeding 1789 breach of such provision or as a waiver of any provision itself.

1790 / ' ARTICLE 28. DISPUTE RESOLUTION 1791 28.01 Except for a CONTRACTOR Default under Article 11, and except as provided 1792 below in Section 28.01.3, should any dispute arise under this Contract, including but not limited 1793 to the performance and obligations of the parties, or service or compensation changes, such 1794 disputes shall be resolved by the following procedures:

1795 28.01.1 The parties shall resolve their disputes informally to the maximum 1796 extent possible and shall attempt to resolve such disputes in a cooperative and mutually

City of Oakland ...^ r -i f-£ Page 41

1797 satisfactory manner. Either party shall give the other written notice of such dispute, and also 1798 provide written notice to the Contract Manager. The Contract Manager shall then schedule a 1799 meeting between CONTACTOR and the CITY Administrator or the CITY Administrator's 1800 designee as soon as reasonably possible. In the event such dispute cannot be resolved by the 1801 parties themselves within thirty (30) days of their first meeting, either party may propose the 1802 appointment of a mediator. The parties shall agree on a mediator within 30 days of either 1803 party's request for mediation.

1804 28.01.2 Mediation. If the disputing parties cannot informally resolve the 1805 dispute, they shall attempt to resolve such dispute through non-binding mediation for a period 1806 not to exceed ninety (90) days from the date of their last informal meeting, absent a written 1807 agreement to extend the time of non-binding mediation.

1808 28.01.2.1 The party desiring mediation shall give written notice thereof to 1809 the other party to this Contract, specifying the dispute to be mediated.

1810 ^ 28.01.2.2 The mediation shall be held at Oakland, California, or at such 1811 other location as may be mutually agreed among the parties. The mediation shall be conducted 1812 and a mediator chosen pursuant to the rules of JAMS Mediation Rules.

1813 28.01.2.3 At least ten (10) days before the date of the mediation, each 1814 side shall provide the mediator with a statement of its position and copies of all supporting 1815 documents. Each party shall send to the mediation a person who has authority to bind the 1816 party. If a subsequent dispute will involve third parties, such as insurers or subcontractors, they 1817 shall also be asked to participate in the mediation.

1818 28.01.2.4 Should mediation be unsuccessful, and if the dispute does not 1819 concern valuation items for which binding arbitration is required in Section 28.01.3, then a party 1820 may commence an adversarial proceeding before any court of competent jurisdiction in the 1821 County of Alameda. Disputes that concern valuation items defined in Section 28.01.3 shall 1822 proceed with binding arbitration procedures as set forth below.

1823 28.01.3 Binding Arbitration. This Section only applies to disputes over 1824 "Valuation Items," which are defined herein as disputes over a specific amount of money or 1825 compensation that is due or owed by either party, and the dispute arises under one of the 1826 following provisions of this Contract: Article 6 and Section 5.20.2.. Disputes relating to 1827 Valuation Items shall be referred to binding arbitration upon mutual written approval of the 1828 disputing parties. If the disputing parties do not mutually agree in writing to binding arbitration, a 1829 party may commence an adversarial proceeding before any court of competent jurisdiction in 1830 the county of Alameda.

1831 28.01.3.1 Binding arbitration proceedings shall be in accordance with 1832 California Code of Civil Procedure section 1280 et seq., the then-current JAMS Streamlined 1833 Arbitration Rules, and the terms of section 28.01.3 and its subsections. In the event of any 1834 inconsistency, the terms of section 28.01.3 and its subsections shall control. The arbitration 1835 shall be administered by JAMS and conducted in the County of Alameda. If the parties are 1836 unable to select an arbitrator within twenty (20) days after delivering written notice requesting 1837 arbitration, JAMS shall select a qualified arbitrator from its panel. If JAMS is unwilling or unable 1838 to (i) serve as the provider of arbitration or (ii) enforce any provision of this arbitration clause, 1839 the parties may mutually designate another arbitration organization with similar procedures to 1840 serve as the provider of arbitration. If the parties cannot agree on the arbitration organization, 1841 the Presiding Judge ofthe Alameda County Superior Court shall designate such an organization 1842 upon the petition of either party. , . <


1843 1844 1845 1846

1847 1848 1849 1850 1851 1852 1853 1854 1855 1856 1857 1858 1859

1860 1861 1862

1863 1864

1865

1866

1867

1868

1869

1870

1871

1872 1873 1874 1875 1876

28.01.3.2 The arbitrator shall be independent of, and unaffiliated with, each party and shall not ever have been an employee of either party, under contract with either party in the past five (5) years or acted as an arbitrator for such party within the past five (5) years. - '' - ' •-"•'yy"-^. " . . ' , y

28.01.3.3 Within twenty (20) days after initiation of the arbitration, if not previously done so under the terms of this Contract, the parties shall each submit to each other and the arbitrator their respective relevant value for the item subject to the valuation dispute, with such supporting information as is reasonably necessary to support such suggested value. If the two (2) valuations so submitted differ by less than or equal to ten (10) percent of the higher of the two, the average of the two shall become the agreed upon amount for purposes of this Contract and the arbitration shall not be continued. If the two valuations differ by more than ten (10) percent of the higher of the two, then the arbitrator shall make a determination of the relevant value and submit such determination to both the parties. This third valuation will then be averaged with the closer ofthe two previous valuations and the result shall be the relevant value. In no event shall the resolution of a valuation dispute result in a valuation higher than that which was set forth by Contractor (e.g., a impact of a "material" disclosure or a higher tip fee adjustment). The final arbitrated value shall be binding on the parties.

28.01.3.4 The arbitrator shall have the authority and power to award costs, including attorneys' fees and costs to the prevailing party. Unless otherwise awarded by the arbitrator, the parties shall evenly split the cost of any arbitration under this Article.

28.01.3.5 By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury to the extent permitted by law.

Acknowledgement of waiver of rights by trial by jury if proceeding with binding arbitration pursuant to Section 28.01.3 of this Contract.

CITY OF OAKLAND CONTRACTOR

28.01.4 During the pendency of any dispute under this Article, all applicable time periods directly related to the dispute shall be tolled until its resolution; provided, however, that no tolling shall apply to any matters other than those directly related to the dispute and such tolling shall not entitle a party to breach, default, or fail to perform its obligations under this Contract.

9

1877 ARTICLE 29. ALL PRIOR CONTRACTS SUPERSEDED 1878 29.01 This document incorporates and includes all prior negotiations, correspondence, 1879 conversations, agreements and understandings applicable to the matters contained in this 1880 Contract and the parties agree that there are no commitments, agreements or understandings 1881 concerning the subject matter of this Contract that are not contained in this document or in the 1882 Collection Service Contracts which are being executed simultaneously with this document 1883 Accordingly, it is agreed that no deviation from the terms of this Contract shall be predicated 1884 upon any prior representations or agreements, whether oral or written.


• • 1885

1886 1887

ARTICLE 30. HEADINGS 30.01 Headings in this document are for convenience of reference only and are not to

be considered in any interpretation of this Contract. 'v- - , ^ ; . > *:

1888 ARTICLE 31. EXHIBITS 1889 31.01 Each Exhibit referred to in this Contract forms an essential part of this Contract. 1890 Each such Exhibit is a part of this Contract and each is incorporated by this reference.

1891

1892 1893 1894

1895 1896

1897 1898 1899 1900 1901 1902 1903 1904 1905

1906

1907

1908

1909 1910 1911 1912

ARTICLE 32. EFFECTIVE DATE 32.01 This Contract shall become effective at such time as it is properly executed by

CITY and CONTRACTOR and CONTRACTOR shall begin Disposal Services, as covered herein, as of July 1, 2015.

IN WITNESS WHEREOF, CITY and CONTRACTOR have duly authorized execution of this' Contract and have executed the Contract as of the dates set forth below.

CITY OF OAKLAND

By:, [Name, Title]

Date

APPROVED AS TO FORM:

[Name, Title]

[Contractor Company Name]

By: [Name, Title]

Date


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1914 2333135.1

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f

City of Oakland f - . • Page 45

ATTACHMENT D July 08,2014

"'y -.i'

July 8» 2014

Susan Kattchee Zero Waste Services RFP Project Manager City of Oakland 250 Frank H. Ogawa Plaza Suite 5301 Oakland, CA 94612-2034

Re: Zero Waste Services, analysis pursuant to the California Environmental Quality Act. ' -4,., ..,.jy. .

Dear Ms. Kattchee: *

Waste Management of Alameda County, Inc. ("WMAC") currently provides collection, processing, recycling, and disposal services to the City of Oakland (the "City") pursuant to a July I, 2005 Franchise Agreement for Integrated Solid Waste Management Services, as amended (the "2005 Integrated Agreement"). As described below, the services proposed by WMAC in response to the City's Zero Waste Services Requests for Proposals reduce environmental impacts incurred under the existing franchise and, as a result, the award of the new franchises to WMAC is exempt from the California Environmental Quality Act.

WMAC has submitted proposals in response to three City Requests for Proposals ("RFPs"): Mixed Materials and Organics Collection Services - Service Group 1 ("MM&O"), Residential Recycling Collection Services - Service Group 2 ("RR"), and Disposal Services - Service Group 3 ("Disposal").

WMAC's proposals present an entirely in-county solution to the City's waste management needs, as all of WMAC's facilities are in Alameda County, including the company's headquarters at 98th Avenue in Oakland, where its offices are located and collection vehicles are stored and serviced, the Davis Street Resource Recovery Complex and Transfer Station in San Leandro, and the Altamont Landfill in Livermore.

I. Project Impacts ' , -

WMAC's proposals in response to the MM&O, RR, and Disposal RFPs create no new environmental impacts over and above existing levels and in many areas substantially reduce the impacts, including the following:

1. Collection and Transfer Trucks

WMAC's proposals would result in the replacement of diesel-powered collection and transfer trucks with trucks powered by compressed natural gas ("CNG") largely generated from landfill gas. This will result in a significant reduction of air pollutants and greenhouse gas ("GHG") emissions, along with other positive impacts. , . < ,

July 08,2014

WASTE MAMAOEMENT

Under the City's current agreements, WMAC uses 59 diesel collection vehicles and California Waste Solutions ("CWS") uses an estimated 16 to 18 diesel vehicles for its current portion of residential recyclables collection, all of which emit carbon dioxide and other air emissions, notably nitrogen oxides and particulate matter. Meanwhile, biogenic liquefied natural gas ("LNG") is currently powering 134 of WMAC's collection vehicles in Alameda County and 42 of WMAC's transfer trucks from the Davis Street Transfer Station in San Leandro. If awarded the MM&O, RR, and Disposal agreements, WMAC's entire fleet of vehicles serving the Oakland area will be powered by CNG, primarily derived from WMAC's Altamont landfill gas with backup CNG sources available during any plant down time. WMAC's new collection vehicles will be powered by Cummins CNG motors for residential, commercial, and industrial customer collections. The conversion to CNG will reduce air emissions now created by diesel-powered trucks. For each heavy-duty "Class 8" collection truck that WMAC converts to natural gas, the company reduces the use of diesel fuel by an average of 8,000 gallons per year. (A comparison of the type and number of vehicles, and miles traveled, between the current and proposed contract is attached as Exhibit A) *

As stated above, the natural gas that will be the primary source used to fuel WMAC's collection and transfer trucks will be produced at the Altamont Landfill using biomethane, which is the lowest carbon-intensity vehicle fuel commercially available because it is made from landfill gas—a near-term carbon source. High Mountain Fuels ("HMF')" operates a natural gas production facility at the Altamont Landfill. The HMF plant is designed to purify and liquefy landfill gas (i.e., methane) that Waste Management collects from the natural decomposition of organic waste placed in the landfill since 1980. This transportation-grade LNG and CNG fuel is produced using electricity (about 2 MW) also produced from landfill gas onsite. Therefore, no sources of fossil fuels are used to produce natural gas at the Altamont Landfill. In fact, LNG and CNG produced at the Altamont Landfill actual prevents GHG emissions by channeling landfill gases into fuel, ensuring that they cannot be released into the atmosphere. Over 13,000 gallons of natural gas fuel are produced at the HMF facility each day. Since 2009, when the facility began operation, the plant has produced over 11 million gallons of natural gas fuel to date, which has reduced consumption of diesel fuel by approximately 2 million gallons per year. This biogenic LNG and CNG has become the primary fuel for WMAC's fleet of trash and recycling collection trucks.

This method of producing transportation-grade natural gas fuel is carbon-neutral because the methane generated by landfill decomposition, which was previously flared, is now converted to fuel used in place of carbon-intensive diesel fuel and other forms of CNG that are derived from fossil fuels instead of biomethane. Compared to using diesel-fueled vehicles, using trucks powered by biogenic LNG or CNG results in significant reductions of GHG emissions. Since the HMF facility began operating in 2009, the

' Emissions of carbon dioxide (C02) generated from the burning of iandrill gas (either in a flare or engine) are considered biogenic, meaning they come from a biofuci recently generated from atmospheric carbon sources (such as trees, plants, or bacteria) and do not contribute to a net increase in today's atmospheric C02.

' High Mountain Fuels, LLC ("HMF ) is a joint venture company whose sole members are WM LNG, Inc. (an indirect subsidiary of Waste Management) and Linde Merchant Production, Inc. HMF has leased property at Altamont Landfill and produces LNG from landnil gas. Currently, HMF is providing fuel for WMAC's natural gas-fueled fieet.

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Other environmental benefits resulting from WMAC's fleet of clean vehicles include:

• Maximized productivity through automated residential collections • Larger legal payload (10.5 tons), resulting in fewer trips to recovery facility, which saves fuel

and minimizes air contaminants and road wear and tear • Reduced litter during collections and reduced fly-away debris during travel • Collection vehicles will not idle during refueling because "slow-fill" CNG equipment has

been installed at the 98th Avenue facility and will be installed at the Davis Street facility by no later than 2016.

• Lower noise and fuel savings due to idle compaction mode (800 rpm vs. 1400 rpm currently) • Full eject payload vehicle, which is safer during the off-loading of the commodity procedure • Disc brake applications will eliminate brake noise and maximize brake life by incorporating

a transmission retarder, which slows the vehicle between stops without using friction material

• Leaves no skid marks due to the driver remaining in the cab in control of the brake applications and the transmission retarder assisting stops

• Has flexibility to service carts manually in difficult areas or when the need arises • Onboard scales by Air-Weigh alert a driver when a truck is near its maximum load capacity,

eliminating overweight vehicles and minimizing wear and tear on City streets. • Proprietary onboard computer system allows centralized dispatch facilities to obtain near

real-time information related to all truck locations, stops serviced, capacity, service status, and other key service indicators. This enables dispatch to communicate with Operations Base for immediate and efficient customer issue resolution including on-call requests, on-demand service requirements, re-routing, and customer service needs. The onboard computer system constantly evolves and allows WMAC to monitor and track vehicle and driver activities in order to optimize efficiency and overall performance and reduce unnecessary truck trips.

, ; ; ' 2. Composting Method '

WMAC's proposal for the MM&O franchise agreements would also reduce the emission of other harmful air pollutants through superior composting methods. Under the proposal, WMAC would no longer utilize the Grover Facility for composting organic materials collected in Oakland. Rather, green waste, green waste mixed with food scraps, and source-separated organic materials would be sent to the Redwood composting facility initially, then to the Altamont composting facility beginning in 2016. Organics derived from multi-family processing will be sent to the Redwood facility for composting, beginning July 1, 2015, and then to the Altamont facility for composting in 2016. Upon completion of the Integrated Waste Processing Facility ("IWPF') in 2018, all organic material derived from MSW processing will be sent to the Altamont composting facility. The Covered Aerated Static Pile ("GASP") method of composting implemented at the Redwood and Altamont Landfills will result in significant reductions in emissions of Precursor Volatile Organic Compounds ("POCs") compared to the traditional "windrow" composting method currently being performed at the Grover Facility.

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POCs are the primary precursor compounds in air pollution that result in the formation of ground-level ozone and particulate matter in the atmosphere, which are the main ingredients of the air pollutant referred to as smog. Compared to a windrow facility, reductions of POC emissions in a CASP process are primarily achieved by using mechanical air blowing systems to aerate the organic material and provide oxygen for the biological decomposition process to occur. In a windrow process (including the process used at the Grover Facility), aeration is achieved through periodic mixing of materials using a stirring or turning device, which creates uncontrolled POC emissions when the pile is stirred or turned. In a CASP system, however, process air that has passed through the compost pile is sent through a bio-filtration process to destroy the POCs prior to discharge. The CASP process is a specific form of compost aeration in which the compost piles are constructed with a layer of bio-filtration media on top ofthe piles. Process air is blown through the piles and, as it travels through the bio-filtration layer, bacteria consumes any POC compounds present in the process air. The resulting air discharged from the pile is significantly less contaminated with POCs compared to emissions from a traditional windrow pile. In fact, the bio-filtration emission control measures in use in CASP facilities have resulted in POC emission reductions of up to 90 percent compared to traditional windrow processes. For these projects, an 85 percent reduction has been conservatively used to determine potential emissions from a CASP facility.

Under WMAC's proposals, POC emissions would be reduced by 63 to 66 percent per year. More specifically, POC emissions from the Redwood composting facility during the first year of the ^ agreement are estimated to be 43 tons per year compared to 129 tons from the current Grover composting facility. This significant reduction will occur even though the amount of organics processed will increase from 45,147 tons in 2013 to 53,828 tons in 2015 because of improved collection, segregation, and diversion, which will result in more organics sent for composting instead of being disposed at the landfill. By the time the IWPF becomes operational in 2018, an estimated 58,913 tons of organic material will be processed but will result in POC emissions of only 47 tons per years due to the superior CASP method." This reduction in POC emissions will in turn reduce the creation of ground-level ozone and smog. . . „.

3. Collection Containers

In its MM&O and RR proposals, WMAC offered to replace existing collection containers with new containers. However, WMAC is discussing alternatives with the city under which customers could continue to use existing containers in good condition, which would reduce the need to consume additional raw materials for the production of collection carts. In any event, WMAC will continue to recycle containers taken out of service. .

•* Air emission factors from the South Coast Air Quality Management District Technology Assessment for Rule 1133: Emissions Reduction from Composting and Related Activities, (Table 2-11) were used to calculate the actual emissions and the potential emissions for windrow-type composting and the proposed emissions for CASP composting at Altamont and Redwood Landfills.

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4. Davis Street

The following facilities at WMAC's Davis Street Resource Recovery Complex and Transfer Station will continue to reduce environmental impacts over existing levels.

a. Organics Transfer Building

The function of this facility is to transfer organics for composting and possibly anaerobic digestion. WMAC constructed this LEED™ Gold designed facility in September 2011. The building is designed to bring food scraps and organics transfer operations under one roof and help to eliminate vectors and contain odors through its state-of-the-art negative air and bio-filtration system. The building allows for speedy, efficient transfer of organics utilizing Davis Street's fleet of natural gas-fueled trucks, including biomethane captured by the Altamont Landfill's LNG facility. Source-separated organics from curbside commercial, residential customers and organics derived from processed MSW through the IWPF will be transferred to WMAC's Redwood composting facility and then to the Altamont composting facility in 2016.

b. Single Stream Material Recovery Facility

The function of this facility is to process single-stream recyclables from single-family, multi-family, and commercial customers. In 2006, WMAC built the state-of-the-art Single Stream Material Recovery Facility ("MRF') at Davis Street. In 2010, the facility was upgraded with the addition of optical sorters to segregate plastics further. The daily capacity is 400 tons. Optical sorting increases quality control to maximize diversion and recycling.

WMAC anticipates expanding the Single Stream MRF again in 2014 to 2015. The upgrade will result in an additional 250 tons per day of capacity and employ a series of manual sort lines, vacuums, magnets, eddy currents, and optical sorters as well as a state-of the art glass system, ensuring the highest diversion possible. The future expansion, which was subject to the required environmental review under CEQA, is currently fully permitted by the City of San Leandro. ^

The convenient location of the Single Stream MRF at Davis Street allows for the transfer of source-separated recyclables from the other MRFs at the Davis Street campus. As part of the Davis Street Master Plan, elevated conveyor belts will be installed to facilitate the flow of materials across the site, helping to reduce GHG emissions associated with vehicular transfer as well as improving safety from reduced vehicle traffic.

c. Dry Material/C&D Material Recovery Facility

The function of this facility, which recently completed an expansion, is to process dry mixed material loads, construction and demolition ("C&D") debris, and bulky recyclables. The daily fully permitted capacity is 800 tons.

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With regard to dry mixed materials, the facility processes loads that are high in recyclable content and ^ low in organics. Such loads will primarily come from re-routed commercial and retail vehicles, non-source separated single stream material from malls and warehouses, construction materials, demolition materials, and other streams.

WMAC anticipates that this facility is the only dry material/C«S:D material facility in Alameda County that will be a fully permitted and certified High Diversion Mixed Waste Processing Facility. y -

The 800 tons-per-day layout and technology will maximize recycling and diversion from dry material and C&D material through effective sizing, recognition, and capture. Along with traditional recyclables, materials such as wood, rock, metals, and concrete are also culled.

The facility is also designed for Oakland material streams that may not be able to participate in source separation. This strategy is designed to divert materials that would traditionally be landfilled.

Most organic material recovered is converted into WM Earthcare''"' ', the company's closed-loop solution for beneficially reusing organics in the communities from which they are generated. WM Earthcare™ mulch begins with clean, untreated, and unpainted lumber that is received from construction and dry materials, and is then repurposed. Concrete, asphalt, and other inerts recovered are used for internal and external construction projects, such as road building and commercial base.

In addition, "slow-fill" CNG equipment will be installed at the Davis Street campus so that collection and transfer vehicles will not idle while refueling. .

' . ^

5. Altamont Landfill ' ^ ^ ^ ^ ^ ;~

WMAC's Altamont Landfill, located in Alameda County, has received Oakland's waste for 32 years. , With its existing entitlements, sufficient airspace, 24/7 operations, two landfill-gas-to-energy projects, HMF landfill gas-to-LNG facility, wind farm, CNG fueling station, conservation easements, wild life habitats, tire recycling, C&D recycling, and proposed covered aerated static pile composting (CASP) and Reclaimable Anaerobic Digester (RAC)AVet digestion, WMAC's Altamont Resource Recovery Facility is the most environmentally beneficial residual disposal option for the City of Oakland. Also, disposal tonnage from the City of Oakland will be reduced under the new agreement due to increased landfill diversion. The facility is fully permitted to accept the City's waste stream and no additional permitting or environmental review is required. Moreover, the "tippers" at the Altamont, which tip the transfer trailers to dispose waste into the landfill, are being converted from diesel fuel to CNG by the end of 2014, which will further reduce adverse air emissions.

6. 98th Avenue *' ^

WMAC's headquarters at 98th Avenue in Oakland is L E E D ^ M Gold certified. WMAC anticipates that it will install solar panels at the facility once the design, engineering, and analysis phases of this project are completed in late 2015 or early 2016. Additionally, WMAC has installed "slow fill" CNG equipment

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at the facility, which allows collection vehicles to refuel without idling. . .

7. Increased Diversion

If WMAC is awarded the MM&O and RR franchise agreements, it will utilize the facilities described above, as well as new programs and technologies, to significantly increase the current diversion of MM&O and RR material. WMAC projects that diversion of the total tons collected under the MM&O franchise agreement will increase from 35 percent in 2015 to 62 percent in 2022, provided certain conditions exist or have not materially changed. , , .: ^. ... . .. ^ * ^

More specifically, under WMAC's proposals, approximately 10,454 more tons of organics will be composted in 2016 compared to 2013, For recyclables, improved processing will result in over 9,000 more tons diverted for recycling between the first and second years of the contract. And 9,200 fewer tons of waste will be disposed in the landfill between 2013 and 2015. When the IWPF begins operating in 2018, 73,554 fewer tons of waste will be disposed in the landfill compared to 2013. By 2025, WMAC estimates that 76,159 fewer tons will be disposed in the landfill each year, which is approximately 46 percent reduction in landfill disposal compared to the current agreements. Consequently, WMAC's proposals will help the City achieve the 50 percent disposal reduction required by the Integrated Waste Management Act and come closer to achieving its Zero Waste goal.

II. CEQA Analysis . . t • • ' -: • . - ' ; > ' ' ' ^

WMAC's proposed operations under the new franchise agreement will not expand existing operations, nor will the proposed operations add to environmental impacts realized under current operations. In fact, WMAC's proposals will reduce environmental impacts for the reasons stated above. All facilities to be used for new operations are already fully permitted, do not require any expansions or alterations beyond those already approved and permitted, and are fully capable of receiving, processing, disposing of or otherwise accommodating the City of Oakland's waste stream under the new franchise agreements. Consequently, WMAC's proposed operations to meet the requirements of the new franchise agreements are exempt from review under the California Environmental Quality Act ("CEQA") implementing regulations. 5ee 14 Cal. Code Regs. § 15061(b).

' ; 1. Ongoing Operation of Existing Facilities

The City's approval of WMAC's proposed operations under the new franchise agreements would be exempt from CEQA review requirements because it would involve the ongoing operation of existing facilities. The CEQA Guidelines provide an exemption for "the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time o f the City's determination. 14 Cal. Code Regs. § 15301. As explained above, all of the facilities that WMAC will use to accept, segregate, divert, transfer, and dispose of the City's waste and recyclables are already in operation and have already been subject to full CEQA review and environmental permitting. The City's approval would not result in either the construction of any new facilities or non-minor alteration of existing facilities. The Altamont compositing facility, set for

8

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completion in 2016, and the IWPF that WMAC plans to begin operating in 2018, are already planned,, and environmental review is completed.. Moreover, both facilities which will proceed regardless of the City's approval of WMAC's proposals. Therefore, the award of the franchise agreements to WMAC is subject to the exemption for existing facilities under Section 15301 of the CEQA Guidelines. The application of this categorical exemption is not barred by any of the exceptions set forth in Section 15300.2.

2. Action to Protect the Environment . ' Approval of WMAC's proposals would also be exempt from CEQA review requirements as an agency action for protection of the environment. The CEQA Guidelines provide an exemption for actions by agencies "to assure the maintenance, restoration, enhancement, or protection of the environment" where the action "involves procedures for protection of the environment." 14 Cal. Code Regs. § 15308. If adopted, WMAC's proposals would result in environmental protection through reduced emissions of . GHGs and other air pollutants including nitrogen oxides, POCs, and particulate matter. WMACs proposals would also result in reduced truck trips and vehicle miles traveled, which would have beneficial impacts on traffic, result is less noise in the community, and reduce wear and tear on City streets. WMAC's proposals will also increase diversion of waste materials from disposal in the landfill through increased recycling and composting of organic waste. Many of these environmental benefits were called for in the City's RFPs. Consequently, the award of the franchise agreements to WMAC is subject to the exemption for agency actions to protect the environment under Section 15308 of the CEQA Guidelines. None of the exceptions in set forth in Section 15300.2 would be implicated, so the application of this categorical exemption is not barred.

s 3. Action to Protect Natural Resources * , Similariy, the City's approval would be exempt from CEQA review as an agency action for protection of natural resources. The CEQA Guidelines include an exemption for actions by agencies "to assure the maintenance, restoration, or enhancement of a natural resource." See 14 Cal. Code Regs. § 15307. As explained, WMAC's proposals would reduce emissions of harmful air pollutants and GHGs, which would have beneficial impacts on natural resources in the Oakland area as well as regionally and globally. Increased recycling will reduce the need for raw materials, which will also benefit natural resources. And increased composting, which will be made into fertilizer, will reduce the use of fertilizers of crops, which will then reduce water pollution. The City's RFP process included many of these requirements for natural resources protection. Therefore, the City's approval of WMAC's proposals is also subject to the categorical exemption for agency actions to protect natural resources under Section 15307 of the CEQA Guidelines. As with the previous exemptions, the exceptions in Section 15300.2 would not be implicated.

4. Changes to Rates and Other Charges ^

Because the City's approval includes changes to the rates for waste collection and disposal, it is not subject to CEQA review. The CEQA Guidelines include a statutory exemption for "the establishment, modification, structuring, restructuring, or approval of rates, tolls, fares, and other charges by public

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July08,2014

agencies" which are for the purpose of "meeting operating expenses" or "obtaining funds for capital projects, necessary to maintain service within existing service areas." See 14 Cal. Code Regs. § 15273. The City's approval of new franchise agreements will increase the rates charged to City residents and businesses for the collection and disposal of refuse in order to keep pace with increased costs and to achieve increased diversion goals to meet the City's Zero Waste objectives and to maintain collection within existing services areas. As a result, CEQA does not apply to the City's approval of new franchise agreements due to the required rate changes.

5. Common Sense Exemption v . ^ ^

Additionally, the City's approval would be exempt from CEQA review requirements pursuant to the "common sense" exemption. The CEQA Guidelines state that a "project is exempt from CEQA i f the project "is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment." 14 Cal. Code Regs. § 15061(b)(3). Where an activity will not have a "significant effect on the environment, the activity is not subject to CEQA." Id. The City's approval will have no significant adverse effect on the environment because it will not result in the construction or operation of any new facilities or equipment that will have a significant adverse impact on the environment. Indeed, WMAC's proposals will have significant environmental benefits, as explained above, including: .»

• Reduced emissions of GHGs through the use of biogenic LNG and CNG to fuel collection and transfer vehicles, rather than carbon-intensive diesel fuel

• Significantly reduced emissions of harmful air pollutants, including nitrogen oxides and particulate matter resuhing from the elimination of diesel vehicles, as well as reduced POC ' " emissions from superior composting technology

• Reduced truck trips and truck mileage, resulting in less emissions, noise and less wear and tear on City streets ,

• Increase diversion of waste to recycling and composting, reducing the amount of waste disposed in the landfill

As a result, WMAC's proposals will substantially reduce pollution and waste disposal, allowing the City to meet its environmental goals. For these reasons, the project will not have a significant adverse effect on the environment, and in fact will have a positive environmental impact Therefore, the City's approval is exempt from CEQA, in accordance with Section 15061(b)(3) of the CEQA Guidelines.

... ' . . . . f ' , " •

6. Approval Consistent with Community Plan

Finally, the City's approval of the new franchise agreements is not subject to CEQA review because the action is consistent with the Alameda County Integrated Waste Management Plan and, the City' solid waste and Zero Waste plans (collectively "Plan"). CEQA provides an exemption for projects that are consistent with a general plan, community plan, or zoning plan for which an environmental impact report ("EIR") was previously certified. See Cal. Pub Res. Code § 21083.3; 14 Cal. Code Regs. § 15183. In that situation, an additional environmental review shall not be required, unless there are

10

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project-specific significant effects which are peculiar to the project or its site. See 14 Cal. Code Regs. § 15183(a),(c). The City's approval of WMAC's proposals in response to the RFPs is consistent with the Plan. There are no project-specific environmental impacts associated with WMAC's proposed operations, as discussed above. As a result, no further CEQA review is required.

7. Conclusion

Because the City's approval of WMAC's proposals in response to the three RFPs is exempt from CEQA, no further CEQA review is required. A notice of exemption would be appropriate but is not required. See 14 Cal. Code Regs. § 15062.

Regards

Ba»y.«rollTick ^sident. Waste Management of Alameda County, Inc. Area Vice President, Northern California-Nevada

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11

SFFlCE OF'THE Cil t Ct i O.'.KL AND

2014 SEP (9 PHI2:30

OAKLAND CITY COUNCIL ORDINANCE NO. C.M.S.

;y Attorney

ORDINANCE AMENDING ORDINANCE NO. 13253 C.M.S., WHICH GRANTED A FRANCHISE FOR MIXED MATERIALS AND ORGANICS

. COLLECTION SERVICES TO CALIFORNIA WASTE SOLUTIONS, INC., TO INSTEAD GRANT THE FRANCHISE FOR MIXED MATERIALS AND ORGANICS COLLECTION SERVICES TO WASTE MANAGEMENT OF ALAMEDA COUNTY, AND/OR SUCH OTHER AFFILIATE ENTITY APPROVED BY THE CITY ADMINISTRATOR, CONTINGENT ON ITS EXECUTION OF A MIXED MATERIALS AND ORGANICS COLLECTION SERVICES CONTRACT WITH THE CITY, AND AUTHORIZING THE CITY ADMINISTRATOR TO NEGOTIATE AND EXECUTE SUCH A CONTRACT WHICH MAY REGULATE MAXIMUM SERVICE RATES FOR MIXED MATERIALS AND ORGANICS COLLECTION SERVICES, RESIDENTIAL RECYCLING SERVICES, AND DISPOSAL SERVICES, AND SETTING

> FORTH PROCEDURES TO ALLOW FOR ADJUSTMENT OF MAXIMUM SERVICE RATES, ON SUCH TERMS AND CONDITIONS AND RATES APPROVED BY THE CITY COUNCIL

WHEREAS, the Legislature of the State of California, by enactment ofthe California Integrated Waste Management Act of 1989 ("Act") and subsequent additions and amendments (codified at 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 Collection within their jurisdiction; and,

WHEREAS, the State of California, through enactment of the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000, et. seq.) also recognizes the important health and safety consideration to long-term plarming for local government's adequate Disposal needs. The California Integrated Waste Management Act of 1989 declares that the responsibility for management of Solid Waste is a shared responsibility betw een the State and local governments. The State requires local governments to make adequate provision for at least fifteen (15) years of Garbage Disposal capacity to preserve the health, safety and w^ell-being of the public. The California Integrated Waste Management Act of 1989 and Oakland City Charter Article X and Oakland Municipal Code Chapter 8.28 also authorize local governments to enter into exclusive franchise contracts to provide Garbage handling services for the health, safety and wellbeing of its citizens (California Public Resources Code Section 40059); and,

WHEREAS, pursuant to California Public Resources Code Section 40059(a), as well as Oakland City Charter Article X and Oakland Municipal Code Chapter 8.28, the City has

determined that the public health, safety, and well-being require that an exclusive right be awarded to a qualified Contractor to provide for the Collection of Mixed Waste and Organic Materials, except for Collection of materials excluded by the City's Municipal Code and the to-be-executed Mixed Materials and Organics Collection Services Contract ("Contract"), and other services related to meeting the Act's fifty (50) percent Diversion goal and other requirements of the Act; and, , • .

WHEREAS, in 1990 the Alameda County Waste Reduction and Recycling Initiative Charter Amendment established a county-wide solid waste diversion rate goal of seventy five (75) percent by 2010; and, . y

WHEREAS, in 2002 the City Council ofthe City of Oakland approved Resolution No. 77500 C.M.S., to adopt a goal of 75% reduction of waste going to landfills by 2010 in support ofthe Measure D goal, and the implementation date established by the Alameda County Source Reduction and Recycling Board; and,

WHEREAS, in 2006 the City Council ofthe City of Oakland approved Resolution No.79774 C.M.S. which adopted a Zero Waste Goal by 2020; and

WHEREAS, in 2006 the City Council ofthe City of Oakland approved Resolution No. 80286 C.M.S., adopting a Zero Waste Strategic Plan; and,

WHEREAS, on March 18, 2014, the City Council ofthe City of Oakland approved Resolution 84898 C.M.S. establishing policies to provide good, family-supporting wages and benefits to all workers who provide recycling services to the City of Oakland, its residents or businesses, through any exclusive franchise agreement; to provide consideration of a local non-combustible biowaste-to-energy facility for handling of source separated organics collected through new organics franchise agreements; and to provide an organics 'third' bin for source-separated organics for all Oakland residents, including those in multifamily buildings, as the minimum preferred default outcome for franchised collection services; and ,

WHEREAS, on August 13, 2014, the City Council ofthe City of Oakland approved Ordinance No. 13253 C.M.S., granting a franchise for mixed materials and organics collection services to California Waste Solutions, Inc. ; and

WHEREAS, the City Council has expressed interest in supporting job training opportunities to Oakland youth through programs provided by Civicorps ; and

* • WHEREAS, it is the intent of the City to grant instead an exclusive franchise to Waste Management of Alameda County Inc. (the "Franchisee"), contingent on its the execution of a Mixed Materials and Organics Collection Services Contract with the City, for the Collection and Processing of certain subsets of Solid Waste defined as Mixed Materials, Garbage, Organic Materials and Bulky Goods in the to-be-executed Contract; and,

WHEREAS, the City has granted an exclusive franchise, subject to execution of an associated contract, for the provision of Recycling Services and authorized the execution of an exclusive contract for Landfill Disposal Services associated with the Recycling Collection Services Contract and Mixed Materials and Organics Collection Contract; and

WHEREAS, the City further declares its intent to regulate the maximum rates Franchisee will charge Customers for the Collection, transportation, Processing, recycling, composting, and/or Disposal of Mixed Materials, Garbage, Organic Materials, and Bulky Goods, and for Recycling Services and Disposal Services, both of which rates are incorporated into the maximum rates for Mixed Materials and Organics Services; and

WHEREAS, the City Council has determined through a competitive procurement process for Mixed Materials and Organics (MM&O) Collection Services that Franchisee, by demonstrated experience, reputation and capacity, is qualified to provide for the Collection of Mixed Materials, Organic Materials and Bulky Goods within the corporate limits of the City, the transportation of such material to appropriate places for Processing, Recycling, Composting and/or Disposal; and City Coimcil desires that Franchisee be engaged to perform such services on the basis set forth in the to-be-executed Contract; and

WHEREAS, Franchisee, through its proposal to the City, has proposed and represented that it has the ability and capacity to provide for the Collection of Mixed Materials, Organic Materials and Bulky Goods within the corporate limits of the City; the transportation of such material to appropriate places for Processing, Recycling, Composting and/or Disposal; and the Processing of materials; and

WHEREAS, based on Franchisee's proposal to the City and subsequent negotiations with Franchisee, City desires to grant an exclusive franchise to Franchisee to provide the Mixed Materials and Organics Collection services as specified in the City's Request for Proposals, in accordance with the terms and conditions of the to-be-executed Contract; and

WHEREAS, the City has independently reviewed, considered and confirmed the environmental analysis conducted for these services; and

WHEREAS, this environmental analysis concludes that there would not be the potential for significant environmental impacts, and therefore no further environmental review is required; and

WHEREAS, the City Council finds and determines that the requirements of the California Environmental Quality Act ("CEQA") have been satisfied, and this action on the part of the City Council is exempt from CEQA pursuant, CEQA Guidelines section 15301, CEQA Guidelines section 15307, CEQA Guidelines section 15308, CEQA Guidelines section 15273, CEQA Guidelines section 15183, and/or CEQA Guidelines section 15061 (b) (3); and

WHEREAS, each of the foregoing provides a separate and independent basis for an exemption and when viewed collectively provides an overall basis for an exemption, as further described and explained in the accompanying environmental analysis dated July 8, 2014 attached to the September 19, 2014 City Administrator report to the City Council (Attachment D), incorporated herein by the reference as if fully set forth herein; and , . '

NOW, THEREFORE, THE COUNCIL OF THE CITY OF OAKLAND DOES ORDAIN AS FOLLOWS:

Section 1. The City Council has independently reviewed and considered this environmental

determination and finds and determines that the action complies with the CEQA;; and directs the City's Environmental Review Officer to file a Notice of Exemption.

Section 2. The Council does hereby find and declare that the above recitals are true and correct and that the award of a franchise for Mixed Materials and Organics Collection to Franchisee is for a proper public purpose, is in the public interest, convenience, and welfare, and is for the common benefit ofthe inhabitants of the city. The City hereby grants Waste Management of Alameda County Inc. (WMAC), contingent on its execution of the Mixed Materials and Organics Collection Services Contract, an exclusive franchise for the provision of Mixed Materials and Organics Collection Services, as identified in the Request for Proposals for Zero Waste Services, originally released on September 5, 2012. The term of the franchise from July 1, 2015 to June 30, 2025 with the potential extension through June 30, 2035 as specified in the Contract.

Section 3. Based on the form of the Mixed Materials and Organics Services Contract circulated with the Requests for Proposals, City and Franchisee have reached general, but not complete, agreement on the Mixed Materials and Organics Collections Services Contract, the current form of which is attached to the City Administrator Revised Agenda Report dated July 28, 2014 to the City Council. The City Administrator is authorized, subject to the review and approval of the City Attorney, to fiirther negotiate and execute a Mixed Materials and Organics Collections Service Contract on behalf of the City, consistent with this Ordinance and with the general form of the Contract attached to the City Administrator Revised Agenda Report dated July 28, 2014 to the City Council.

Section 4. The Council does hereby authorize the Franchisee to charge customers, beginning July 1, 2015, the maximum rates set forth in the Rate Tables contained in the City Administrator Agenda Report dated September 19, 2014 to the City Council, or such higher or lower rates as approved by City Council pursuant to request by the Franchisee, for the various Mixed Materials and Organics Collection Services outlined in the MM&O Contract attached to the same Agenda Report and as specified and fiirther described in the Contract.

Section 5. The City Administrator is authorized to conduct all negotiations and execute all documents including but not limited to amendments, modifications, notices, and related actions (including rate adjustments as specified in the Contract) which may be necessary and consistent with the basic intent and purpose of this Ordinance and the Mixed Materials and Organics Collection Services Contract, except for those rate adjustments that the Oakland Municipal Code requires be approved by the City Council.

Section 6. In consideration of the special franchise right granted by the City to Franchisee to transact business, provide services, use the public street and/or other public places, and to operate a public utility for Mixed Materials and Organics collection services, Franchisee shall remit a monthly franchise fee payment to the City, as specified in the Contract. From July 1, 2015 through June 30, 2025, Franchisee shall pay the City a monthly franchise fee of Twenty Five Million Thirty Four Thousand Dollars ($25,034,000) per annum, subject to annual adjustment on July 1 each year, as specified in the Contract.

Section 7. The Franchisee shall develop plans with Civicorps to provide training of interns without impact or displacement of permanent union jobs, through a contract subject to approval by the City Administrator.

Section 8. The Franchisee shall deliver commercial organics to East Bay Municipal Utility District, and shall enter into a separate processing agreement with EBMUD for these materials, subject to approval by the City Administrator.

Section 9. The Franchisee shall pay ILWU Local 6 recycling sorters $20.94 per hour in 2019.

Section 10. The Franchisee shall provide ILWU Local 6 workers affordable family health care coverage beginning July 1, 2015.

Section 11. The franchise awarded hereunder shall be contingent on: 1) dismissal with prejudice of litigation in Waste Management of Alameda County, Inc. v. City of Oakland, and 2) submission to the Oakland City Clerk of written notices of withdrawal of referenda measures signed by all proponents, pursuant to Califomia Elections Code Section 9604(c), on City Ordinance Nos. 13253, 13254, and 13255 C.M.S., which awarded franchise agreements to Califomia Waste Solutions for Garbage Collection, Recycling Services and Disposal/Landfill, and no petition for a referendum on any ofthe above-referenced ordinances being submitted to or filed with the Oakland City Clerk within the 30-day period provided for referendum petitions under Califomia Elections Code Section 9237. The award authorized hereunder shall be null and void if the lawsuits is not dismissed with prejudice and the referenda are not withdrawn, or if a petition for a referendum is filed.

IN COUNCIL, OAKLAND, CALIFORNIA,

PASSED BY THE FOLLOWING VOTE:

AYES- BROOKS, GALLO, GIBSON MCELHANEY, KALB, KAPLAN, REID, SCHAAF, and PRESIDENT KERNIGHAN ,

NOES- • ' = ' . '.:i.\r ; '

ABSENT- ' " • • ' •

ABSTENTION- ' -

• ' " ' ATTEST: LaTonda Simmons

City Clerk and Clerk ofthe Council of the City of Oakland, California

DATE OF ATTESTATION:

•t

« f h C E Of 'THE C l i ! OAK L A.ND

20HSEP (9 PMI2:30 OAKLAND CITY COUNCIL

ORDINANCE NO. C.M.S.

City Attorney

ORDINANCE AMENDING ORDINANCE NO. 13255 C.M.S., WHICH AUTHORIZED THE CITY ADMINISTRATOR TO EXECUTE AN EXCLUSIVE CONTRACT FOR LANDFILL DISPOSAL SERVICES WITH CALIFORNIA WASTE SOLUTIONS, INC., TO INSTEAD AUTHORIZE THE CITY ADMINISTRATOR TO EXECUTE AN EXCLUSIVE CONTRACT FOR LANDFILL DISPOSAL SERVICES WITH WASTE MANAGEMENT OF ALAMEDA COUNTY, AND/OR SUCH OTHER AFFILIATE ENTITY APPROVED BY THE CITY ADMINISTRATOR, ON SUCH TERMS AND CONDITIONS AND RATES APPROVED BY THE CITY COUNCIL

WHEREAS, on August 13,2014, the City Council ofthe City of Oakland approved Ordinance No. 13255 C.M.S., granting a contract for landfill disposal services to CaUfomia Waste Solutions, Inc.; and

WHEREAS, City of Oakland ("City") desires instead to enter into a Contract with Waste Management of Alameda County, Inc. ("Contractor"), imder which Contractor receives Garbage and Bulky Goods generated within the City, and Residue from the Processing of Mixed Materials Collected by the Mixed Materials and Organics (MM&O) Collection Contractor within the City of Oakland at the Disposal Facility; and /

WHEREAS, the City Council of the City determines, pursuant to its police powers, that obtaining a long-term commitment for Disposal of Garbage and Bulky Goods generated in the City, and Residue from the Processing of Mixed Materials Collected by the MM&O Collection Contractor within the City is in the best interests of the health, safety and well-being of the citizens of the City; and ? v

WHEREAS, the State of Califomia, through enactment of the Califomia Integrated Waste Management Act of 1989 (Califomia Public Resources Code Section 40000, et. seq.), also recognizes the important health and safety consideration to long-term plarming for local government's adequate Disposal needs. The Califomia Integrated Waste Management Act of 1989 declares that the responsibility for management of Solid Waste is a shared responsibility > between the State and local governments. The State requires local govemments to make adequate provision for at least fifteen (15) years of Garbage Disposal capacity to preserve the health, safety and well-being of the public. The Califomia Integrated Waste Management Act of 1989 and Oakland City Charter Article X and Oakland Municipal Code Chapter 8.28 also authorize local govemments to enter into exclusive franchise contracts to provide Garbage handling services for the health, safety and well-being of its citizens (Califomia Public Resources Code Section 40059); and

WHEREAS, the proposed Contract also advances the objectives ofthe federal government to encourage environmentally sound Garbage management (Resource Conservation and Recovery Act of 1976 (RCRA), 42, U.S.C. Section 6941 et. seq.); and

WHEREAS, in 1990 the Alameda Coimty Waste Reduction and Recycling Initiative Charter Amendment established a county-wide solid waste diversion goal of seventy five (75) percent by 2010;and

WHEREAS, in 2002 the City Council ofthe City of Oakland approved Resolution No. 77500 C.M.S., adopting a goal of 75% reduction of waste going to landfills by 2010 in support of the Measure D goal, and the implementation date established by the Alameda County Source Reduction and Recycling Board; and

WHEREAS, in 2006 the City Council ofthe City of Oakland approved Resolution No. 79774 C.M.S. adopting a Zero Waste Goal by 2020; and

WHEREAS, in 2006 the City Council ofthe City of Oakland approved Resolution No. 80286 C.M.S., adopting a Zero Waste Strategic Plan; and

WHEREAS, the Disposal Facility is intended to be the principal facility for the Disposal of Mixed Materials, Garbage and Bulky Goods generated in the City, and Mixed Materials Residue from the Processing of Mixed Materials Collected by the MM&O Collection Contractor within the City; and .

WHEREAS, the Contractor guarantees permitted capacity at the Disposal Facility for up to thirty (30) years for Disposal of all Mixed Materials, Garbage, and Bulky Goods generated in the City and Mixed Materials Residue from the Processing of Mixed Materials Collected by the MM&O Collection Contractor within the City; and

WHEREAS, the City Council of the City of Oakland determines that in order to provide adequate Disposal capacity, it is in the best interests of the City to secure a commitment from Contractor for the right to a portion of the Disposal Facility's current Disposal capacity on the terms and subject to the conditions set out in the proposed Contract. The intent of this provision is, in part, for the City to contribute to preventing the substantial environmental, aesthetic, health, and safety problems that may be created from increasing volumes of Garbage in this country; and

WHEREAS, the Contractor has represented that it has the experience and ability to provide for Disposal of Mixed Materials, Garbage, Bulky Goods and Residue, at the Disposal TipjDing Fees provided for herein; and

WHEREAS, the City has entered into Collection Service Contracts to provide: i) Mixed Material and Organics Collection Services and ii) Residential Recycling Collection Services within the City; and . •

WHEREAS, the Contractor receives Disposal Tipping Fees from the City's MM&O Collection Contractor for the acceptance of Mixed Materials, Garbage, Bulky Goods and Residue at the Disposal Facility for final Disposal; and

WHEREAS, the City determined that the Contractor has proposed to provide Disposal Services at the Disposal Facility in a manner and on terms that are in the best interest of the City and its residents and businesses, taking into account the qualifications and experience of the Contractor, and the Disposal Tipping Fees for providing such services; and

WHEREAS, the City wishes to engage the Contractor to provide the services specified within the proposed Contiact, in accordance with the terms and conditions ofthe proposed Contract; and '

WHEREAS, the City Council of the City of Oakland declares its intention of maintaining reasonable Disposal Tipping Fees for the Disposal of Mixed Materials, Garbage, Bulky Goods and Residue; and

WHEREAS, the City has independently reviewed, considered and confirmed the environmental analysis conducted for these services; and

WHEREAS, this environmental analysis concludes that there would not be the potential for significant environmental impacts, and therefore no further environmental review is required; and :.

WHEREAS, the City Council finds and determines that the requirements of the Califomia Environmental Quality Act ("CEQA") have been satisfied, and this action on the part of the City Council is exempt from CEQA pursuant, CEQA Guidelines section 15301, CEQA Guidelines section 15307, CEQA Guidelines section 15308, CEQA Guidelines section 15273, CEQA Guidelines section 15183, and/or CEQA Guidelines section 15061 (b) (3); and

WHEREAS, each of the foregoing provides a separate and independent basis for an exemption and when viewed collectively provides an overall basis for an exemption, as further described and explained in the accompanying environmental analysis dated July 8, 2014 attached to the September 19, 2014 City Administrator report to the City Council (Attachment D), incorporated herein by the reference as if fiiUy set forth herein; and

NOW, THEREFORE, THE COUNCIL OF THE CITY OF OAKLAND DOES ORDAIN AS FOLLOWS:

Section 1. The City Council has independently reviewed, considered, and confirmed this environmental determination and finds and determines that the action complies with the CEQA and directs the City's Environmental Review Officer to file a Notice of Exemption.

Section 2. The Council does hereby find and declare that the above recitals are true and correct and that the award of a Contract for Disposal Services to Contractor is for the proper public purpose, is in the public interest, convenience, and welfare, and is for the common benefits of the inhabitants of the city.

Section 3. Based on the form of the Disposal Services Contract circulated with the Requests for Proposals, City and Contractor have reached general, but not complete, agreement on the Disposal Services Contract, the current form of which is attached to the City Administrator's

Revised Agenda Report dated July 28, 2014 to the City Council. The City Administrator is authorized, subject to the review and approval of the City Attomey, to negotiate and execute the Disposal Services Contract on behalf of the City, consistent with this Ordinance and with the general form of the Contract attached to the City Administrator Revised Agenda Report dated September 19, 2014 to the City Council.

Section 4. The City Administrator is authorized to conduct all negotiations and execute all documents including but not limited to Franchise Agreement amendments, modifications, notices, and related actions which may be necessary and consistent with the basic intent and purpose of the Franchise Agreement, except for those rate adjustments that the Oakland Municipal Code requires to be approved by Council.

Section 5. The franchise awarded hereunder shall be contingent on: 1) dismissal with prejudice of litigation in Waste Management of Alameda County, Inc. v. City of Oakland, and 2) submission to the Oakland City Clerk of written notices of withdrawal of referenda measures , signed by all proponents, pursuant to Califomia Elections Code Section 9604(c), on City Ordinance Nos. 13253, 13254, and 13255 C.M.S., which awarded franchise agreements to Califomia Waste Solutions for Garbage Collection, Recycling Services and Disposal/Landfill, and no petition for a referendum on any of the above-referenced ordinances being submitted to or filed vsdth the Oakland City Clerk within the 30-day period provided for referendum petitions under Califomia Elections Code Section 9237. The award authorized hereunder shall be null and void if the lawsuits is not dismissed with prejudice and the referenda are not withdravra, or if a petition for a referendum is filed.

IN COUNCIL, OAKLAND, CALIFORNIA

PASSED BY THE FOLLOWING VOTE:

AYES- BROOKS, GALLO, GIBSON MCELHANEY, KALB, KAPLAN, REID, SCHAAF, and PRESIDENT KERNIGHAN

NOES-

ABSENT- " i. '' • ,v ••

ABSTENTION- ; ^ .

ATTEST: LaTonda Simmons

City Clerk and Clerk ofthe Council ofthe City of Oakland, California

DATE OF ATTESTATION: