AGREEMENT BETWEEN THE CITY OF LIVERMORE AND LIVERMORE SANITATION_ INC by fionan

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									              AGREEMENT

              BETWEEN
       THE CITY OF LIVERMORE

                  AND

  LIVERMORE SANITATION, INC.

FOR SOLID WASTE, RECYCLABLE MATERIALS, AND
     COMPOSTABLE MATERIALS SERVICES




           SEPTEMBER 28, 2009
                                                   Table of Contents

RECITALS .................................................................................................................................... 1

ARTICLE 1. DEFINITIONS.......................................................................................................... 2

ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR ................. 16
   2.1         Corporate Status......................................................................................................... 16
   2.2         Corporate Authorization.............................................................................................. 16
   2.3         Agreement Will Not Cause Breach ............................................................................. 17
   2.4         No Litigation................................................................................................................ 17
   2.5         No Adverse Judicial Decisions ................................................................................... 17
   2.6         No Legal Prohibition ................................................................................................... 17
   2.7         Contractor’s Statements ............................................................................................. 18
   2.8         Contractor’s Investigation ........................................................................................... 18
   2.9         Ability to Perform ........................................................................................................ 18
   2.10        Voluntary Use of Approved Disposal Location ........................................................... 18
ARTICLE 3. TERM OF AGREEMENT ....................................................................................... 18
   3.1         Effective Date and Commencement Date................................................................... 18
   3.2         Conditions to Effectiveness of Agreement.................................................................. 19
   3.3         Term ........................................................................................................................... 19
   3.4         Option to Extend Term................................................................................................ 20
ARTICLE 4. SCOPE OF AGREEMENT ..................................................................................... 20
   4.1         Scope of Agreement ................................................................................................... 20
   4.2         Limitations to Scope ................................................................................................... 22
   4.3         City-Directed Changes................................................................................................ 24
   4.4         Transition to Next Contractor at End of Agreement .................................................... 26
   4.5         City Free to Negotiate with Third Parties .................................................................... 26
ARTICLE 5. COLLECTION SERVICES ..................................................................................... 26
   5.1         General ....................................................................................................................... 26
   5.2         Solid Waste Services.................................................................................................. 27
   5.3         Recycling Services ..................................................................................................... 32
   5.4         Compostable Materials Program ................................................................................ 37
   5.5         City Facilities and Events Collection........................................................................... 43
   5.6         Provision of Service to Schools .................................................................................. 45
   5.7         Construction and Demolition Debris Collection .......................................................... 45
   5.8         Abandoned Solid Waste Collection ............................................................................ 45
   5.9         Community Garage Sale Event .................................................................................. 46
   5.10        E-Waste and U-Waste Collection ............................................................................... 46
   5.11        Hazardous Waste ....................................................................................................... 47
   5.12        Transportation of Collected Materials ......................................................................... 48
   5.13        Disposal and Processing of Collected Materials......................................................... 48
   5.14        Collection Standards................................................................................................... 58
   5.15        Vehicles ...................................................................................................................... 61
   5.16        Containers .................................................................................................................. 65

City of Livermore                                                                                                Franchise Agreement
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  5.17     Public Education and Technical Assistance ............................................................... 69
  5.18     Personnel including Prevailing Wages .................................................................... 75
  5.19     Contingency Plan........................................................................................................ 78
  5.20     Implementation of New Services ................................................................................ 78
  5.21     Corporation Yard, Transfer Operations, CNG Station ................................................ 78
  5.22     Community Reuse E-Network..................................................................................... 79
ARTICLE 6. OTHER RELATED SERVICES AND STANDARDS.............................................. 80
  6.1      Billing .......................................................................................................................... 80
  6.2      Records ...................................................................................................................... 83
  6.3      Reports ....................................................................................................................... 87
  6.4      Annual Reports ........................................................................................................... 92
  6.5      Annual Report Required by the Act ............................................................................ 95
  6.6      Meet and Confer with City .......................................................................................... 95
  6.7      Right to Inspect Records ............................................................................................ 96
  6.8      Inspection by City ....................................................................................................... 96
  6.9      Customer Service Program ........................................................................................ 96
  6.10     Service Complaints..................................................................................................... 99
  6.11     Title to Solid Waste..................................................................................................... 99
  6.12     Non-Discrimination ................................................................................................... 100
  6.13     Report of Accumulation of Solid Waste; Unauthorized Dumping ............................. 100
  6.14     Administration of Service Exemption Programs........................................................ 100
  6.15     Performance Review ................................................................................................ 101
  6.16     Provision of Emergency Services ............................................................................. 101
  6.17     Assistance to City with Code and Plan Reviews ...................................................... 101
ARTICLE 7. AGREEMENT FEE AND OTHER CITY FEES..................................................... 102
  7.1      Agreement Fee ......................................................................................................... 102
  7.2      Franchise Monitoring and Enforcement Fee............................................................. 102
  7.3      Street Sweeping Services Fee ................................................................................. 102
  7.4      Rate Review and Performance Review Fee ............................................................. 103
  7.5      Vehicle Impact Fee ................................................................................................... 103
  7.6      Neighborhood Preservation Fee............................................................................... 104
  7.7      Other Fees................................................................................................................ 104
  7.8      Procedures for Monthly Submittal of Fees................................................................ 104
  7.9      Adjustment to Fees................................................................................................... 105
ARTICLE 8. CONTRACTOR'S COMPENSATION .................................................................. 105
  8.1      Overview................................................................................................................... 105
  8.2      Rate-Setting Process................................................................................................ 106
  8.3      Rate Application Process.......................................................................................... 107
  8.4      Special Rate Review................................................................................................. 110
  8.5      Rates for Changes in Scope..................................................................................... 113
  8.6      Notice of Rate Adjustments ...................................................................................... 113
  8.7      One-Time Revenue Reconciliation ........................................................................... 113
ARTICLE 9. INDEMNITY, INSURANCE, BOND...................................................................... 114
  9.1      Hazardous Substance Indemnification ..................................................................... 114
  9.2      AB 939 Indemnification............................................................................................. 115
  9.3      Proposition 218......................................................................................................... 116
  9.4      Measure D Indemnification ....................................................................................... 116
  9.5      Insurance .................................................................................................................. 117


City of Livermore                                                                                             Franchise Agreement
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   9.6      Performance Bond.................................................................................................... 121
ARTICLE 10. CITY'S RIGHT TO PERFORM SERVICE .......................................................... 121
   10.1     General ..................................................................................................................... 121
   10.2     Duration of City's Possession ................................................................................... 122
   10.3     Condemnation .......................................................................................................... 123
ARTICLE 11. DEFAULT AND REMEDIES .............................................................................. 123
   11.1     Events of Default ...................................................................................................... 123
   11.2     Contractor Rights to Remedy Default ....................................................................... 125
   11.3     City’s Remedies in the Event of Default ................................................................... 125
   11.4     Possession of Property upon Termination or Suspension........................................ 126
   11.5     City's Remedies Cumulative; Specific Performance................................................. 127
   11.6     Liquidated Damages................................................................................................. 127
   11.7     Excuse from Performance ........................................................................................ 129
   11.8     Right to Demand Assurances of Performance ......................................................... 130
ARTICLE 12. OTHER AGREEMENTS OF THE PARTIES ...................................................... 130
   12.1     Relationship of Parties.............................................................................................. 130
   12.2     Compliance with Law................................................................................................ 130
   12.3     Governing Law.......................................................................................................... 131
   12.4     Jurisdiction................................................................................................................ 131
   12.5     Intentionally Deleted ................................................................................................. 131
   12.6     Assignment ............................................................................................................... 131
   12.7     Subcontracting.......................................................................................................... 133
   12.8     Binding on Successors ............................................................................................. 133
   12.9     Transition to Next Contractor.................................................................................... 133
   12.10    Parties in Interest...................................................................................................... 134
   12.11    Waiver....................................................................................................................... 134
   12.12    Contractor's Investigation ......................................................................................... 134
   12.13    Notice........................................................................................................................ 134
   12.14    Representatives of the Parties.................................................................................. 135
   12.15    City Free to Negotiate with Third Parties .................................................................. 136
   12.16    Statements and Supplemental Information............................................................... 136
   12.17    Criminal Activity of Contractor .................................................................................. 136
   12.18    Material Change Notification Process....................................................................... 138
   12.19    Ownership of Environmental Benefits....................................................................... 139
ARTICLE 13. MISCELLANEOUS AGREEMENTS .................................................................. 140
   13.1     Entire Agreement...................................................................................................... 140
   13.2     Section Headings...................................................................................................... 140
   13.3     References to Laws .................................................................................................. 140
   13.4     Interpretation............................................................................................................. 140
   13.5     Amendment .............................................................................................................. 140
   13.6     Severability ............................................................................................................... 141
   13.7     Counterparts ............................................................................................................. 141
   13.8     Exhibits ..................................................................................................................... 141




City of Livermore                                                                                            Franchise Agreement
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                                       List of Exhibits

       A      City Service Locations
       B      City-Sponsored Events
       C      Public Education Plan
       C-1    Public Education Plan – Supplemental Information
       D      Implementation Plan
       E      Cart Specifications
       F      Schedule of Performance Adjustments (Liquidated Damages)
       G      Contractor’s Total Proposed Costs and Estimated Rate Revenues
              for Rate Period One
       H      Customer Rates Approved by the City
       I      Index-Based Rate Adjustment Method
       J      Cost-Based Rate Adjustment Method
       K      Secretary’s Certification
       L      Performance Bond
       M      Contractor’s Proposal
       N      Contract Management Checklist
       O      Target Food Scraps Customers




City of Livermore                                                    Franchise Agreement
                                                                                  Page iv
 1                                        Agreement
 2                                          between
 3                                   the City of Livermore
 4                                            and
 5                                 Livermore Sanitation, Inc.
 6
 7                    For Solid Waste, Recyclable Materials and
 8                         Compostable Materials Services
 9
10   THIS AGREEMENT is made and entered into as of the ______ day of ________________,
11   2009, by and between the City of Livermore (hereinafter "the City") and Livermore Sanitation,
12   Inc. (hereinafter referred to as the "Contractor").

13                                             RECITALS
14
15   This Agreement is entered into with reference to the following facts and circumstances:
16
17   WHEREAS; the Legislature of the State of California, by enactment of the California Integrated
18   Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.), has
19   declared that it is in the public interest to authorize and require local agencies to make adequate
20   provisions for solid waste collection within their jurisdiction;
21
22   WHEREAS; the State of California has found and declared that the amount of refuse generated
23   in California, coupled with diminishing disposal site space and potential adverse environmental
24   impacts from landfilling and the need to conserve natural resources, have created an urgent need
25   for State and local agencies to enact and implement an aggressive integrated waste management
26   program. The State has, through enactment of the Act, directed the responsible State agency,
27   and all local agencies, to promote disposal site diversion and to maximize the use of feasible
28   waste reduction, re-use, recycling and composting options in order to reduce the amount of
29   refuse that must be disposed of in disposal sites;
30
31   WHEREAS; in 1990 the Alameda County Waste Reduction and Recycling Initiative Charter
32   Amendment established a county-wide solid waste diversion rate goal of seventy-five percent
33   (75%) by 2010;
34
35   WHEREAS; on November 26, 2007, the City of Livermore adopted a resolution establishing a
36   solid waste diversion goal of seventy-five percent (75%) by 2015 to support the county-wide
37   diversion goal of seventy-five percent (75%);
38
39   WHEREAS; through its recent membership in the Alameda County Climate Protection Project,
40   the City of Livermore has committed to reducing its greenhouse gas emissions; and the United
41   States Environmental Protection Agency has found that greenhouse gas emissions could be
42   significantly reduced through recycling, especially the recycling of paper;

     City of Livermore                                                           Franchise Agreement
                                                                                              Page 1
43
44   WHEREAS; under Title 8, Section 8.08, Solid Waste Management of the City of Livermore
45   Municipal Code, the City has the authority to provide for the Collection, Transport, Processing,
46   marketing, and Disposal of Solid Waste, Recyclable Materials and Compostable Materials
47   through a franchise agreement;
48
49   WHEREAS; pursuant to California Public Resources Code Section 40059(a)(2), the City has
50   determined that the public health, safety, and well-being require that an exclusive right be
51   awarded to a qualified contractor to provide for the Collection of Solid Waste, Recyclable
52   Materials, and Compostable Materials, and other services related to meeting the City’s seventy-
53   five percent (75%) diversion goal;
54
55   WHEREAS; the City Council further declares its intent to approve and maintain reasonable
56   rates for the Collection, Transportation and Recycling, Processing, Composting and/or Disposal
57   of Solid Waste, Recyclable Materials, and Compostable Materials; and,
58
59   WHEREAS; the City Council desires, having determined through a competitive procurement
60   for services that Contractor, by demonstrated experience, reputation and capacity is qualified to
61   provide for both the Collection of Solid Waste, Recyclables Materials, and Compostable
62   Materials within the corporate limits of the City and the Transportation of such material to
63   appropriate places of Processing, Recycling, Composting and/or Disposal, that Contractor be
64   engaged to perform such services on the basis set forth in this Agreement.
65
66   NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions
67   contained in this Agreement and for other good and valuable consideration, the Parties agree as
68   follows:

69                                           ARTICLE 1.
70                                          DEFINITIONS
71
72   For purposes of this Agreement, unless a different meaning is clearly required, the following
73   terms shall have the following meanings and be capitalized throughout this Agreement:
74
75   1.1     Act
76           "Act" means the California Integrated Waste Management Act of 1989 (California
77           Public Resources Code Section 40000 et seq.), as amended, supplemented, superseded
78           and replaced from time to time.
79   1.2     Affiliate
80           "Affiliate" means all businesses (including corporations, limited and general
81           partnerships and sole proprietorships) which are directly or indirectly related to
82           Contractor by virtue of direct or indirect Ownership interest or common management.
83           They shall be deemed to be "Affiliated with" Contractor and included within the term
84           "Affiliates" as used herein. An Affiliate shall include: (i) a business in which


     City of Livermore                                                          Franchise Agreement
                                                                                             Page 2
 85           Contractor has a direct or indirect Ownership interest, (ii) a business, which has a direct
 86           or indirect Ownership interest in Contractor and/or (iii) a business, which is also
 87           Owned, controlled or managed by any business or individual which has a direct or
 88           indirect Ownership interest in Contractor. For the purposes of this definition,
 89           “Ownership” means ownership as defined in the constructive ownership provisions of
 90           Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date here,
 91           provided that ten percent (10%) shall be substituted for fifty percent (50%) in Section
 92           318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and Section 318(a)(5)(C) shall be
 93           disregarded. For purposes of determining ownership under this paragraph and
 94           constructive or indirect ownership under Section 318(a), ownership interest of less than
 95           ten percent (10%) shall be disregarded and percentage interests shall be determined on
 96           the basis of the percentage of voting interest of value which the ownership interest
 97           represents.
 98   1.3     Agreement
 99           "Agreement" means this Agreement, including all exhibits, and any future amendments
100           hereto between the City and Livermore Sanitation, Inc. for Solid Waste, Recyclable
101           Materials and Compostable Materials services described herein.
102   1.4     Agreement Fee
103           "Agreement Fee" means the fee paid by Contractor to City for the privilege to hold the
104           exclusive rights granted by this Agreement.
105
106   1.5     Alternative Landfill Cover
107           “Alternative Landfill Cover” means cover material used at a Disposal Site, other than
108           earthen materials, placed on the surface of the refuse fill area as daily cover,
109           intermediate cover, or final cover to control blowing Litter, fires, odor, scavenging and
110           vectors; or, means materials used as soil amendments for erosion control and
111           landscaping. Food Scraps, Yard Trimmings, and Other Targeted Compostables shall not
112           be used as Alternative Landfill Cover.”
113   1.6     Appliance
114           “Appliance” means any domestic or commercial device, including, but not limited to, a
115           washing machine, clothes dryer, hot water heater, dehumidifier, conventional oven,
116           microwave oven, stove, refrigerator, freezer, air conditioner, trash compactor, and
117           Residential furnace.
118   1.7     Applicable Law
119           “Applicable Law” means all federal, State, and local laws, regulations, rules, orders,
120           judgments, degrees, permits, approvals, or other requirement of any governmental
121           agency having jurisdiction over the Collection, Transportation, Processing, and
122           Disposal of Solid Waste, Recyclable Materials, and Compostable Materials that are in
123           force on the Effective Date and as they may be enacted, issued or amended during the
124           Term of this Agreement.




      City of Livermore                                                           Franchise Agreement
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125   1.8     Approved Composting Site
126            “Approved Composting Site” means the Grover Landscape Services, Inc. Composting
127            site at 3909 Gaffery Road in Vernalis, California, which was selected by Contractor,
128            and approved by the City Manager.
129   1.9     Approved Disposal Site
130           “Approved Disposal Site” means the landfill commonly known as Vasco Road
131           Sanitary Landfill, which is owned and operated by Republic Services Vasco Road,
132           LLC, a wholly-owned subsidiary of Republic Services, Inc., and located at 4001 North
133           Vasco Road in unincorporated Alameda County, California. This Disposal Site was
134           selected by the City and approved for Disposal of Solid Waste Collected by the
135           Contractor.
136   1.10    Approved Recyclables Processing Site
137           “Approved Recyclables Processing Site” means the Alameda County Industries, LLC
138           Processing site at 610 Aladdin Avenue in San Leandro, California, which was selected
139           by Contractor, and approved by the City Manager.
140   1.11    Billings
141           "Billings" means any and all statements of charges for services rendered, howsoever
142           made, described or designated by Contractor, or made by another for City or
143           Contractor, presented to Customers that are serviced by Contractor for the Collection of
144           Solid Waste, Recyclable Materials, and Compostable Materials under this Agreement.
145   1.12    Bin(s)
146           "Bin(s)" means a detachable metal Container with a capacity of one to seven (1 to 7)
147           cubic yards and hinged lid(s), which may have wheels, and that is serviced by a front-
148           end loading or rear-end loading Collection truck.
149   1.13    Bin Service
150           "Bin Service" means service provided to Customers for Solid Waste Collection using
151           Bins as defined in Section 1.12. Bin Service may be used by Commercial Premises,
152           Multi-Family Premises, or Single-Family Premises generating large volumes of Solid
153           Waste.
154   1.14    Bulky Item
155           "Bulky Item" means discarded Appliances, furniture, tires, carpets, mattresses, and
156           similar large items which require special Collection due to their size or nature, but can
157           be Collected without the assistance of special loading equipment (such as forklifts or
158           cranes) and without violating vehicle load limits. It does not include abandoned
159           automobiles, large auto parts, or trees.
160   1.15    Business Days
161           “Business Days” mean days during which City offices are open to do business with the
162           public.



      City of Livermore                                                         Franchise Agreement
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163   1.16    Cart(s)
164           "Cart(s)" means a wheeled plastic Container with varying capacities of twenty (20),
165           thirty-two (32), sixty-four (64), and ninety-six (96) gallons that is equipped with a
166           hinged lid designed for mechanical pickup by an automated or semi-automated
167           Collection vehicle. The 32-gallon Cart is a Cart with 32 gallons of capacity in the Cart
168           body and 3 gallons in the domed lid for a total capacity of 35 gallons.
169   1.17    Cart Service
170           "Cart Service" means Collection services provided to Customers using Carts as defined
171           in Section 1.16. Cart Service may be used by Single-Family Premises, Multi-Family
172           Premises, or Small Commercial Generators.
173   1.18    Change in Law
174           “Change in Law” means any of the following events or conditions which has a material
175           and adverse effect on the performance by the Parties of their respective obligations
176           under this Agreement (except for payment obligations):
177
178           a.     The enactment, adoption, promulgation, issuance, modification, or written change
179                  in administrative or judicial interpretation on or after the Effective Date of any
180                  Applicable Law; or
181
182           b.     The order or judgment of any governmental body, on or after the Effective Date,
183                  to the extent such order or judgment is not the result of willful or negligent action,
184                  error or omission or lack of reasonable diligence of the City or of the Contractor,
185                  whichever is asserting the occurrence of a Change in Law; provided, however,
186                  that the contesting in good faith or the failure in good faith to contest any such
187                  order or judgment shall not constitute or be construed as such a willful or
188                  negligent action, error or omission or lack of reasonable diligence.
189   1.19    City
190           "City" means the City of Livermore, a municipal corporation, and all the territory lying
191           within the municipal boundaries of the City as presently existing or as such boundaries
192           may be modified during the Term.
193   1.20    Collection (or variation thereof)
194           "Collection" means the removal and Transportation of Solid Waste from the place
195           where it was generated to a Disposal Site and/or the removal and Transportation of
196           Recyclable Materials, Compostable Materials, and other Salvageable Materials from the
197           place where such materials were generated to a Processing Site.
198   1.21    Commencement Date
199           "Commencement Date" means the date specified in Section 3.1 when Collection,
200           Transportation, Processing, and Disposal services required by this Agreement shall be
201           provided.




      City of Livermore                                                             Franchise Agreement
                                                                                                 Page 5
202   1.22    Commercial
203           "Commercial" means of, from or pertaining to non-Residential Premises where
204           business activity is conducted, including, but not limited to, retail sales, services,
205           wholesale operations, manufacturing and industrial operations, but excluding businesses
206           conducted upon Residential property which are permitted under applicable zoning
207           regulations and are not the primary use of the property.
208   1.23    Compactor
209           "Compactor" means a mechanical apparatus that compresses materials. Compactors
210           include two (2) to four (4) cubic yard Bin compactors serviced by front-end loader
211           Collection trucks and six (6) to fifty (50) cubic yard Drop Boxes serviced by roll-off
212           Collection trucks.
213   1.24    Complaint
214           "Complaint" means written or orally communicated statements made by members of
215           the public, Owners or Occupants of properties served by Contractor, or officers,
216           employees or agents of City alleging non-performance or deficiencies in performance of
217           Contractor’s duties and obligations under this Agreement, or otherwise alleging a
218           violation by Contractor of the provisions of this Agreement.
219   1.25    Compost (or Composting)
220           "Compost (or Composting)" means a method of treatment in which organic wastes are
221           biologically decomposed under controlled, aerobic or anaerobic conditions to produce a
222           safe and nuisance-free Compost Product.
223   1.26    Compostable Materials
224           "Compostable Materials" means those Discarded Materials that the City’s Code
225           permits, directs, and/or requires Generators to include for Collection in a Container,
226           which is specifically designated for Compostable Materials. No Discarded Material
227           shall be considered to be Compostable Materials, however, unless it is separated from
228           Solid Waste and Recyclable Material. Compostable Materials include Yard Trimmings,
229           Food Scraps, and Other Targeted Compostables.
230   1.27    Compost Product
231           “Compost Product” means the product resulting from the controlled biological
232           decomposition of Compostable Materials that are Source Separated from the municipal
233           Solid Waste stream, or which are separated at a centralized facility.
234   1.28    Composting Site
235           “Composting Site” means any plant, facility, or site used for the processing and
236           Composting of Compostable Materials for the purpose of making Compost, mulch, or
237           other marketable material.
238   1.29    Construction and Demolition Debris
239           "Construction and Demolition Debris" means used or discarded construction
240           materials removed from Premises during the construction or renovation of a structure


      City of Livermore                                                        Franchise Agreement
                                                                                            Page 6
241           resulting from construction, remodeling, repair or demolitions operations on any
242           pavement, house, Commercial building, or other structure.
243   1.30    Container
244           "Container" means a receptacle for temporary storage of Solid Waste, Compostable
245           Materials, or Recyclable Materials to be Collected by Contractor. Container includes a
246           Cart, Bin, Drop Box, or Compactors.
247   1.31    Contractor
248           "Contractor" means Livermore Sanitation, Inc., a corporation organized and operating
249           under the laws of the State of California and its officers, directors, employees, agents,
250           companies and Subcontractors.
251   1.32    Contractor’s Compensation
252           "Contractor’s Compensation" means the monetary compensation received by
253           Contractor in return for providing services in accordance with this Agreement as
254           described in Article 8.
255   1.33    Contractor’s Proposal
256           "Contractor’s Proposal" means the proposal submitted by Contractor on April 13,
257           2009 for provision of Solid Waste, Recyclables, and Compostable Materials services in
258           the City and certain supplemental written materials, which are included as Exhibit M to
259           this Agreement and are incorporated by reference.
260   1.34    Curb or Curbside
261           "Curb or Curbside" means the location for placement of a Cart for pick-up by Single-
262           Family Customers, which shall be on the street against the face of the curb, or where no
263           street curb exists, the Container shall be placed not more than five (5) feet from the
264           outside edge of the street nearest the property’s entrance. In the case of condominiums
265           and townhomes receiving Single-Family service, placement of Carts shall be adjacent to
266           each Residential unit at a location agreed upon by both Contractor and Customer.
267   1.35    Customer
268           “Customer” means the Person to whom Contractor submits billing invoice and collects
269           payment from for Collection services provided to a Premises. The Customer may be
270           the Occupant or Owner of the Premises provided that the Owner of the Premises shall
271           be responsible for payment of Collection services if an Occupant of a Premises, which
272           is identified as the Customer of Owner’s Premises, fails to make such payment.
273   1.36    Delivery
274           "Delivery" means placement of Solid Waste, Recyclable Materials, or Compostable
275           Materials by a Generator in a receptacle or at a location that is designated for Collection
276           pursuant to the City's Municipal Code.
277   1.37    Designated Waste
278           "Designated Waste" means non-Hazardous Waste which may pose special Disposal
279           problems because of its potential to contaminate the environment and which may be

      City of Livermore                                                           Franchise Agreement
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280           Disposed of only in Class II Disposal sites or Class III Disposal sites pursuant to a
281           variance issued by the California Department of Health Services. Designated Waste
282           consists of those substances classified as Designated Waste by the State of California,
283           in California Code of Regulations Section 13173.
284   1.38    Discarded Material
285           "Discarded Material" means Solid Waste, Recyclable Materials, or Compostable
286           Materials placed by a Generator in a Container, receptacle or at a location that is
287           designated for Collection pursuant to the City's Municipal Code.
288   1.39    Disposal
289           "Disposal" means the final disposition of Solid Waste Collected by the Contractor at a
290           Disposal Site approved by the City. Disposal does not include the use of Compostable
291           Materials as Alternative Landfill Cover so long as City and State regulations consider
292           Alternative Landfill Cover use of Compostable Materials as Diversion under the Act.
293   1.40    Disposal Site(s)
294           "Disposal Site(s)" means a facility for ultimate Disposal of Solid Waste.
295   1.41    Diversion
296           “Diversion” means activities that reduce or eliminate the amount of Solid Waste from
297           Solid Waste Disposal including, but not limited to, Recycling and Composting.
298   1.42    Diversion Level
299           “Diversion Level” means the percentage equal to the Tonnage Diverted by Contractor
300           divided by the Tonnage Collected by Contractor multiplied by 100, which reflects the
301           accomplishments of the Contractor’s Diversion programs.
302   1.43    Drop Box
303           "Drop Box," sometimes known as a “roll-off” or “debris box,” means a wheeled or
304           sledded Container or Compactor, generally with a capacity of six (6) to fifty (50) cubic
305           yards, suitable for storage of Solid Waste, Recyclable Materials or Compostable
306           Materials that is separately serviced by a truck, which Transports the Drop Box and the
307           materials contained within to a Disposal Site, Processing Site, Transfer Station, or
308           Composting Site.
309   1.44    Drop Box/Compactor Service
310           "Drop Box/Compactor Service" means the service requested by any Generator
311           requiring Drop Boxes or roll-off Compactors for Collection of Solid Waste, Recyclable
312           Materials or Compostable Materials.
313   1.45    Effective Date
314           "Effective Date" means the date on which the latter of the Parties signs the Agreement
315           and the date on which Contractor may begin to take actions and incur costs in
316           preparation to provide Collection, Transportation, and Processing Services required by
317           this Agreement.


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318   1.46    E-Waste
319           "E-Waste" means discarded electronic equipment including, but not limited to,
320           televisions, computer monitors, central processing units (CPUs), laptop computers,
321           computer peripherals (including external hard drives, keyboards, scanners, and mice),
322           printers, copiers, facsimile machines, radios, stereos, stereo speakers, VCRs, DVDs,
323           camcorders, microwaves, telephones, cellular telephones, and other electronic devices.
324           Some E-Waste or components thereof may be Hazardous Waste or include Hazardous
325           Substances and thus require special handling, Processing, or Disposal.
326   1.47    Franchise Monitoring and Enforcement Fee
327           “Franchise Monitoring and Enforcement Fee” means the fee paid by Contractor to
328           the City to offset expenses associated with the City’s franchise monitoring and
329           enforcement costs.
330   1.48    Food Scraps
331           "Food Scraps" means those Discarded Materials that will decompose and/or putrefy
332           including (i) all kitchen and table food waste, (ii) animal or vegetable waste that is
333           generated during or results from the storage, preparation, cooking or handling of food
334           stuffs, (iii) discarded paper that is contaminated with Food Scraps; (iv) fruit waste,
335           grain waste, dairy waste, meat and fish waste; and, (v) non-Recyclable paper or
336           contaminated paper. Food Scraps are a subset of Compostable Materials.
337   1.49    Generator
338           "Generator" means any Person as defined by Section 40170 of the Public Resources
339           Code, whose act or process produces Solid Waste, Recyclable Materials, or
340           Compostable Materials as defined in the Public Resources Code, or whose act first
341           causes Solid Waste to become subject to regulation.
342   1.50    Gross Rate Revenue
343           “Gross Rate Revenue” means the actual monies remitted to Contractor by Customers,
344           which shall be determined in accordance with Generally Accepted Accounting
345           Principles.
346   1.51    Intentionally Deleted

347   1.52    Intentionally Deleted

348   1.53    Hazardous Substance
349           "Hazardous Substance" means any of the following: (a) any substances defined,
350           regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous
351           materials", "Hazardous Wastes", "toxic waste", "pollutant" or "toxic substances" or
352           similarly identified as hazardous to human health or the environment, in or pursuant to
353           (i) the Comprehensive Environmental Response, Compensation and Liability Act
354           (CERCLA) of 1980, 42 USC §9601 et seq. (CERCLA); (ii) the Hazardous Materials
355           Transportation Act, 49 USC §1802, et seq.; (iii) the Resource Conservation and
356           Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.;


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357           (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, and 25316; (vi)
358           the Clean Air Act, 42 USC §7901 et seq.; and (vii) California Water Code §13050; (b)
359           any amendments, rules or regulations promulgated thereunder to such enumerated
360           statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or
361           toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic
362           or regulated under any other applicable federal, State or local environmental laws
363           currently existing or hereinafter enacted, including, without limitation, friable asbestos,
364           polychlorinated biphenyl’s ("PCBs"), petroleum, natural gas and synthetic fuel
365           products, and by-products.
366   1.54    Hazardous Waste
367           "Hazardous Waste" means all substances defined as Hazardous Waste, acutely
368           Hazardous Waste, or extremely Hazardous Waste by the State of California in Health
369           and Safety Code Sections 25117, 25110.02, and 25115, or in the future amendments to
370           or recodifications of such statutes, or identified and listed as Hazardous Waste by the
371           U.S. Environmental Protection Agency, pursuant to the Federal Resource Conservation
372           and Recovery Act (42 USC Section 6901, et seq.), all future amendments thereto and all
373           rules and regulations promulgated thereunder.
374   1.55    Holidays
375           “Holidays” are defined as New Year’s Day, Memorial Day, Fourth of July, Labor Day,
376           Thanksgiving Day, and Christmas Day for the purposes of planning the Collection
377           schedule.
378   1.56    Household Hazardous Waste
379           "Household Hazardous Waste" means Hazardous Waste generated at Residential
380           Premises within the City.
381   1.57    Infectious Waste
382           "Infectious Waste" means medical or biomedical waste generated at hospitals, public
383           or private medical clinics, dental offices, research laboratories, pharmaceutical
384           industries, blood banks, mortuaries, veterinary facilities and other similar
385           establishments that are identified in Health and Safety Code Section 25117.5.
386   1.58    Litter
387           "Litter" means any quantity of Solid Waste, Recyclable Materials, or Compostable
388           Materials, which is not placed in a Container.
389   1.59    Liquidated Damages
390           “Liquidated Damages” means the amounts owed by Contractor to City for failure to
391           meet specific quantifiable standards of performance as described in Section 11.6 and
392           Exhibit F.
393   1.60    Multi-Family
394           "Multi-Family" means any Residential complex, other than a Single-Family Premises,
395           used for Residential purposes, which has centralized Solid Waste and Recyclable


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396           Materials Collection service for all Residential units in the building and may be billed
397           as one address.
398   1.61    Neighborhood Preservation Fee
399           “Neighborhood Preservation Fee” means the fee paid by Contractor to City to aid the
400           City’s Community Development Department which assists in resolving health, safety,
401           and public nuisance problems that may adversely affect the quality of life for citizens of
402           the City pursuant to Section 7.6.
403   1.62    Nonputrescible Waste
404           "Nonputrescible Waste" means Solid Waste which is not subject to decomposition by
405           microorganisms.
406   1.63    Occupant
407           "Occupant" means and includes every tenant or Person who is in possession of, is the
408           inhabitant of, or has the care and control of, an inhabited Single-Family Premises,
409           Multi-Family Premises, or Commercial Premises.
410   1.64    Other Targeted Compostables
411           "Other Targeted Compostables" means those Discarded Materials that will
412           decompose and/or putrefy including waxed cardboard, wooden packaging such as
413           crates, and untreated and unpainted wallboard. Other Targeted Compostables exclude
414           Yard Trimmings and Food Scraps. Other Targeted Compostables are a subset of
415           Compostable Materials.
416   1.65    Owner
417           "Owner" means the Person holding legal title to the land or building.
418   1.66    Party or Parties
419           "Party or Parties" refers to the City and Contractor, individually or together.
420   1.67    Person
421           "Person" includes an individual, firm, limited liability company, association,
422           partnership, political subdivision, government agency, municipality, industry, public or
423           private corporation, or any other entity whatsoever.
424   1.68    Premises
425           "Premises" means any land or building in the City where Solid Waste, Recyclable
426           Materials, or Compostable Materials are generated or accumulated.
427   1.69    Processing
428           "Processing" means to prepare, treat, or convert through some special method.
429   1.70    Processing Site
430           "Processing Site" means any plant or site used for the purpose of sorting, cleansing,
431           treating or reconstituting salvageable material for the purpose of making such material


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432           available for reuse. Activities that may be undertaken at a Processing Facility include,
433           but are not limited to, Processing Compostable Materials and Recyclable Materials.
434   1.71    Putrescible Waste
435           "Putrescible Waste" means Solid Wastes originated from living organisms and their
436           metabolic waste products and from petroleum, which contains naturally produced
437           organic compounds and which are biologically decomposable by microbial and fungal
438           action into the constituent compounds of water, carbon dioxide and other simpler
439           organic compounds.
440   1.72    Rate
441           “Rate” means the dollar unit to be charged a Customer by Contractor for providing
442           Solid Waste Collection, Transportation, and Disposal, Recyclable Materials Collection,
443           Transportation, and Processing services, Compostable Materials Collection,
444           Transportation, and Processing services, and other extra services.
445   1.73    Rate Period
446           "Rate Period" means a twelve (12) month period, commencing July 1 and concluding
447           June 30.
448   1.74    Rate Review and Performance Review Fee
449           “Rate Review and Performance Review Fee” means the a fee paid by Contractor to
450           City to offset costs of contracting with a consultant in order to review the Contractor
451           Rate adjustment application pursuant to Section 7.4 and conduct a review of
452           Contractor’s performance pursuant to Section 6.15.
453   1.75    Recyclable Materials (also “Recyclables”)
454           "Recyclable Materials or Recyclables" means those non-hazardous Residential or
455           Commercial materials or by-products which are set aside, handled, packaged, or offered
456           for Collection in a manner different from Solid Waste, for the purpose of being reused
457           or Processed and then returned to the economic mainstream in the form of commodities.
458           For the purposes of this Agreement, Recyclable Materials shall be those Discarded
459           Materials that the City Municipal Code permits, directs and/or requires Generators to
460           set out in a Container, which is specifically designated for Recyclable Materials, for
461           Collection for the purpose of Recycling. No Discarded Material shall be considered to
462           be Recyclable Material unless it is separated from Solid Waste and Compostable
463           Material. Recyclable Materials may include, but are not limited to:
464
465                 Paper Materials: Newspaper, corrugated cardboard, mixed paper, cereal boxes,
466                  office paper, junk mail, phone books, magazines, and colored paper including
467                  incidental paper scraps and envelopes.
468
469                 Containers: Glass bottles and jars, aluminum cans, metal cans, milk containers,
470                  all #2, #4, and #5 plastic containers, all narrow-neck #1 to #7 plastic containers,
471                  aseptic packaging, milk cartons, and empty aerosol cans.
472


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473                 Motor oil and filters: Used motor oil and oil filters (only applicable for Single-
474                  Family Customers).
475
476                 Other: Plastic bags, E-Waste peripherals, rigid plastics, hard cover books, and
477                  scrap metal/aluminum under 40 pounds.
478   1.76    Recycling
479           "Recycling" means the process of sorting, cleansing, treating and reconstituting
480           Recyclable Materials at a Processing Site and returning such materials to the economic
481           mainstream in the form of raw materials for new, reused or reconstituted products.
482           Recycling does not include Transformation as defined in the Public Resources Code
483           Section 40201.
484   1.77    Related Party Entity
485           "Related Party Entity" means any Affiliate which has financial transactions with
486           Contractor pertaining to this Agreement that has been approved by the City. For the
487           purposes of this Agreement, Related Party Entities shall include Alameda County
488           Industries, LLC, the owner and operator of the Approved Recyclables Processing Site.
489   1.78    Residential
490           “Residential” shall mean of, from, or pertaining to a Single-Family Premises or Multi-
491           Family Premises including single-family homes, apartments, condominiums, townhouse
492           complexes, mobile home parks, and cooperative apartments.
493   1.79    Residential Premises
494           "Residential Premises" means a site occupied by a building zoned for residential
495           occupation where Solid Waste, Recyclable Materials, or Compostable Materials are
496           generated or accumulated. No place used primarily for business purposes shall be
497           considered a Residential unit.
498   1.80    Re-Use Vendor
499           "Re-Use Vendor" means a vendor (e.g., St. Vincent DePaul, Goodwill Industries, or
500           other non-profit or for-profit organizations) that will collect used furniture and other re-
501           usable items for purposes of reuse rather than Disposal.
502   1.81    Salvageable Material
503           "Salvageable Material" means those Discarded Materials that may be reused in their
504           existing form or may be reused after some form of Processing including, but not limited
505           to, Compostable Materials and Recyclable Materials.
506   1.82    Service Type
507           "Service Type" refers separately to the following types of Solid Waste, Recyclable
508           Materials, Compostable Materials and Food Scraps Collection services for each of the
509           following types of services: Single-Family, Multi-Family Cart Service, Multi-Family
510           Bin Service, Commercial Cart Service, Commercial Bin Service, Drop Box/Compactor
511           Service, and City facilities service.


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512   1.83    Single-Family
513           "Single-Family" means each unit used for or designated as a Single-Family Premises,
514           including each unit of a duplex, triplex, townhouse or condominium which receives
515           individual Solid Waste, Recyclable Materials, and/or Compostable Materials Collection
516           services.
517   1.84    Single-Stream Recyclable Material
518           "Single-Stream Recyclable Material" means Recyclable Materials Collected in one
519           stream that includes both paper and mixed container materials placed in one Container.
520           For the purposes of this Agreement, Single-Stream Recyclable Materials include those
521           Recyclable Materials specified in Section 1.76.
522
523   1.85    Small Commercial Generator
524           "Small Commercial Generator" means any Commercial Generator which generates
525           less than ninety-six (96) gallons of Solid Waste per week and which subscribes to Cart
526           Service.
527   1.86    Solid Waste
528           "Solid Waste" means all Putrescible and Nonputrescible solid, semisolid, and
529           associated liquid waste, including garbage, trash, refuse, paper, rubbish, ashes,
530           industrial wastes, discarded home and industrial Appliances, dewatered, treated or
531           chemically fixed sewage sludge which is not a Hazardous Waste, special waste,
532           manure, vegetable or animal solid and semi-solid wastes, and other discarded solid and
533           semi-solid wastes, which the City Municipal Code requires Generators within the City
534           to set out for Collection. Solid Waste does not include the following:
535
536                 Salvageable Materials set out for Collection in a Container, which is specifically
537                  designated for Recyclable Materials or Compostable Materials, or any other City-
538                  approved Container;
539                 Hazardous Waste;
540                 Low-level radioactive waste;
541                 Infectious Waste provided that Infectious Waste, whether treated or untreated, is
542                  not Disposed of at a Solid Waste facility. Infectious Waste which has been
543                  treated and which is deemed to be Solid Waste shall be considered Solid Waste
544                  under this definition;
545                 Abandoned automobiles; and,
546                 Construction and Demolition Debris.
547
548           Solid Waste includes Salvageable Materials only when such materials are included for
549           Collection in a Solid Waste Container.
550   1.87    Source Separated
551           "Source Separated" means the segregation from Solid Waste, by the Generator, of
552           materials designated for separate Collection for some form of materials recovery or
553           special handling.

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554   1.88    Specialty Recyclable Material
555           "Specialty Recyclable Material" means material not specified in this Agreement that
556           can be or will be Collected for purposes of Recycling by any Person operating under a
557           Recyclable Materials permit issued by the City in accordance with Livermore
558           Municipal Code Title 8, Section 8.08, Solid Waste Management. Such Specialty
559           Recyclable Material includes, but is not limited to, scrap metal, Construction and
560           Demolition Debris, high-grade paper (including mixed paper from offices), pallets, and
561           plastic film.
562   1.89    State
563           “State” means the State of California.
564   1.90    Street Sweeping Services Fee
565           “Street Sweeping Services Fee” means the fee paid by Contractor to City to offset
566           costs of street sweeping services as pursuant to Section 7.3.
567   1.91    Subcontractor
568           “Subcontractor” means a party who has entered into a contract, express or implied,
569           with the Contractor for the performance of an act that is necessary for the Contractor’s
570           fulfillment of its obligations under this Agreement and approved by the City in
571           accordance with Section 12.7 of this Agreement for services such as, but not limited to,
572           Collection, Transportation, Processing, Diversion, sales or marketing of Recyclable
573           Materials or Compostable Materials, staffing, public education, Customer service, and
574           billing, or other service whose cost is a substantial portion of the Contractor’s total
575           annual cost.
576   1.92    Term
577           "Term" means the duration of this Agreement, as provided for in Article 3.
578   1.93    Ton (or Tonnage)
579           "Ton (or Tonnage)" means a unit of measure for weight equivalent to two thousand
580           (2,000) standard pounds where each pound contains sixteen (16) ounces.
581   1.94    Transfer Station
582           "Transfer Station" includes those facilities utilized to receive Solid Waste, Recyclable
583           Materials, or Compostable Materials, temporarily store, and transfer the materials from
584           smaller to larger vehicles for transport.
585   1.95    Transformed
586           "Transformed" means incinerated, pyrolysised, distilled, gasified or biologically
587           converted in a way other than Composted.
588   1.96    Transportation
589           "Transportation" means the act of conveyance from one place to another or state of
590           being transported.



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591   1.97    Unacceptable Spillage
592           "Unacceptable Spillage" means any Solid Waste, Recyclable Materials or
593           Compostable Materials spilled or left at an established Collection site by Contractor
594           after Collection, with the exception that small particles of grass clippings, leaves, and
595           other small Yard Trimmings will not be considered Unacceptable Spillage.
596   1.98    U-Waste
597           “U-Waste” means all wastes as defined by Title 22, Subsections 66273.1 through
598           66273.9 of the California Code of Regulations. These include, but are not limited to,
599           batteries, fluorescent light bulbs, mercury switches, and E-Waste.
600   1.99    Vehicle Impact Fee
601           “Vehicle Impact Fee” means the fee paid by Contractor to reimburse the City for street
602           maintenance costs incurred as a result of Collection Vehicles traveling on City streets
603           pursuant to Section 7.5.
604   1.100   Yard Trimmings
605           “Yard Trimmings” means those Discarded Materials that will decompose and/or
606           putrefy, including, but not limited to, green trimmings, grass, weeds, leaves, prunings,
607           branches, dead plants, brush, tree trimmings, dead trees, small pieces of unpainted and
608           untreated wood, and other types of organic waste. Yard Trimmings are a subset of
609           Compostable Materials. Yard Trimmings placed for Collection may not exceed six (6)
610           inches in diameter and five (5) feet in length.
611

612                                 ARTICLE 2.
613                            REPRESENTATIONS AND
614                        WARRANTIES OF THE CONTRACTOR


615   2.1     Corporate Status

616           Contractor is a corporation duly organized, validly existing and in good standing under
617           the laws of the State of California. It is qualified to transact businesses in the State of
618           California and has the power to own its properties and to carry on its business as now
619           owned and operated and as required by this Agreement.


620   2.2     Corporate Authorization

621           Contractor has the authority to enter into and perform its obligations under this
622           Agreement. The Board of Directors of Contractor (or the shareholders, if necessary)
623           has taken all actions required by law, its articles of incorporation, its bylaws, or
624           otherwise, to authorize the execution of this Agreement. The Person signing this

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625           Agreement on behalf of Contractor has authority to do so, and the Corporate Secretary’s
626           Certificate in Exhibit K confirms this. This Agreement constitutes the legal, valid, and
627           binding obligation of the Contractor.


628   2.3     Agreement Will Not Cause Breach

629           To the best of Contractor's knowledge, after reasonable investigation, the execution or
630           delivery of this Agreement or the performance of this Agreement by Contractor of its
631           obligations hereunder does not conflict with, violate, or result in breach of: (i) any
632           Applicable Law; or (ii) any term or condition of any judgment, order or decree of any
633           court, administrative agency or other governmental authority, or any Agreement or
634           instrument to which Contractor is a party or by which Contractor or any of its properties
635           or assets are bound, or constitutes a default thereunder.


636   2.4     No Litigation

637           To the best of Contractor's knowledge, after reasonable investigation, there is no action,
638           suit, proceeding or investigation, at law or in equity, before or by any court or
639           governmental authority, commission, board, agency or instrumentality decided, pending
640           or threatened against Contractor wherein an unfavorable decision, ruling or finding, in
641           any single case or in the aggregate, would:
642
643           A.    Materially adversely affect the performance by Contractor of its obligations
644                 hereunder;
645
646           B.    Adversely affect the validity or enforceability of this Agreement; or,
647
648           C.    Have a material adverse effect on the financial condition of Contractor, or any
649                 surety or entity guaranteeing Contractor's performance under this Agreement.


650   2.5     No Adverse Judicial Decisions

651           To the best of Contractor’s knowledge, after reasonable investigation, there is no
652           judicial decision that affects the validity of this Agreement and may subject this
653           Agreement to legal challenge.


654   2.6     No Legal Prohibition

655           To the best of Contractor’s knowledge after reasonable investigation, there is no
656           Applicable Law in effect on the date Contractor signed this Agreement that would
657           prohibit the Contractor’s performance of its obligations under this Agreement and the
658           transactions contemplated hereby.

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659   2.7     Contractor’s Statements

660           The Contractor’s Proposal and any other supplementary information submitted to the
661           City, which the City has relied on in awarding and entering this Agreement, do not: (i)
662           contain any untrue statement of a material fact, or (ii) omit to state a material fact that is
663           necessary in order to make the statements made, in light of the circumstances in which
664           they were made, not misleading.


665   2.8     Contractor’s Investigation

666           Contractor has made an independent investigation (satisfactory to it) of the conditions
667           and circumstances surrounding the Agreement and the work to be performed hereunder.
668           Contractor has taken such matters into consideration in entering this Agreement to
669           provide services in exchange for the compensation provided for under the terms of this
670           Agreement.


671   2.9     Ability to Perform

672           Contractor possesses the business, professional, and technical expertise to manage,
673           Collect, Transport, and Dispose of the Solid Waste and to manage, Collect, Transport,
674           and Process Recyclable Materials and Compostable Materials; and Contractor possesses
675           the equipment, facility, and employee resources required to perform this Agreement.


676   2.10    Voluntary Use of Approved Disposal Location

677           The Contractor, without constraint and as a free-market business decision in accepting
678           this Agreement, agrees to use the Approved Disposal Location for the purposes of
679           Disposing of all Solid Waste Collected in the City. Such decision by Contractor in no
680           way constitutes a restraint of trade notwithstanding any Change in Law regarding flow
681           control limitations or any definition thereof.
682

683                                        ARTICLE 3.
684                                    TERM OF AGREEMENT


685   3.1     Effective Date and Commencement Date

686           The Effective Date of this Agreement shall be the date the latter of the two Parties signs
687           the Agreement provided that City Council has taken action approving this Agreement
688           and no restraining order of any kind has been issued.

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689
690           The Commencement Date of this Agreement shall be July 1, 2010, and shall be the date
691           Contractor commences to provide Collection, Transportation, and Processing services
692           and all other obligations described by this Agreement. During the time between the
693           Effective Date and Commencement Date, Contractor shall perform any and all activities
694           necessary to prepare itself to start Collection, Transportation, and Processing services
695           required by this Agreement on the Commencement Date.


696   3.2     Conditions to Effectiveness of Agreement

697           The obligation of City to permit this Agreement to become effective and to perform its
698           undertakings provided for in this Agreement is subject to the satisfaction of each and all
699           of the conditions set out below, each of which may be waived in whole or in part by
700           City.
701
702           3.2.1       Accuracy of Representations

703           The representations and warranties made in Article 2 of this Agreement are true and
704           correct on and as of the Effective Date.
705
706           3.2.2       Absence of Litigation

707           There is no litigation pending on the Effective Date in any court challenging the award
708           or execution of this Agreement or seeking to restrain or enjoin its performance.
709
710           3.2.3       Furnishings of Insurance and Bond

711           Contractor has furnished evidence of the insurance required by Section 9.5 that is
712           satisfactory to the City; provided evidence of its ability to secure the performance bond
713           required by Section 9.6 that will be effective on the Commencement Date of the
714           Agreement.
715
716           3.2.4       Secretary’s Certification

717           Exhibit K of this Agreement shall have been signed by the secretary of the Contractor
718           and identifies the name of the Contractor’s representative that is authorized to execute
719           this Agreement.


720   3.3     Term

721           The Term of this Agreement shall be ten (10) years from 12:01 a.m. on July 1, 2010
722           (Commencement Date) to midnight June 30, 2020, unless extended by City pursuant to
723           Section 3.4 or terminated in accordance with Section 11.3.




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724   3.4     Option to Extend Term

725           At the City’s sole discretion, the Term of this Agreement may be extended, for up to
726           forty-two (42) months after June 30, 2020, i.e., until December 31, 2023, in one or more
727           periods of at least twelve (12) months each pursuant to the terms and conditions of this
728           Agreement. If the City elects to exercise this option, it shall give written notice of its
729           election, specifying the number of months by which it wishes to extend the Term, to the
730           Contractor, one hundred eighty (180) calendar days prior to the initial expiration date or
731           extended termination date of this Agreement. At the end of the Term, the City may
732           renegotiate the terms and conditions of the Agreement with the Contractor (subject to
733           agreement by the Parties) or select another means to procure or provide Collection
734           services.
735
736           If the City choose to exercise its right to extend the Agreement and the Contractor
737           demonstrates to the City’s satisfaction that Contractor is in default of its loan covenants
738           related to loans secured for equipment, property, or operations for the purposes of
739           performing its obligations of this Agreement, the Parties shall initiate a cost-based rate
740           adjustment process (as described in Article 8 and Exhibit J) to review Contractor’s
741           actual costs that will result in Rates being set at a level that should allow Contractor to
742           fulfill its loan convenants, provided that such loan covenants are common in the
743           industry for similar types of loans.
744
745           If the Parties agree to extend the Agreement, the Parties shall meet and confer to discuss
746           Collection vehicle and Container acquisition needs and related costs, if any. The
747           equipment replacement plans presented on Contractor’s depreciation schedule (on Form
748           8 in Exhibit G) in Contractor’s proposed costs shall serve as the basis for negotiations.
749           The extension to the Agreement may be approved if the Parties agree on how
750           depreciation and interest expenses shall be treated during the extension period. Other
751           terms and conditions of the Agreement may also be renegotiated by the Parties.
752
753           The City has no obligation to renegotiate, renew, or extend the rights granted to
754           Contractor beyond the initial ten-year (10-year) Term of the Agreement.
755

756                                       ARTICLE 4.
757                                  SCOPE OF AGREEMENT


758   4.1     Scope of Agreement

759           Subject to Section 4.2, the Agreement granted to Contractor shall be exclusive for
760           Collection, Transportation, Processing, and/or Disposal of Solid Waste, Recyclable
761           Materials, and Compostable Materials generated in the City, except where otherwise
762           precluded by federal, State and local laws and regulations or where other current
763           programs provide for Collection of Household Hazardous Waste.

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764
765           The Contractor, or its Subcontractor(s), shall be responsible for the following, as
766           responsibilities may be limited by Section 4.2 or precluded by Applicable Law:
767
768           A.    Collecting all Solid Waste, Recyclable Materials, and Compostable Materials
769                 generated in the City and placed by Single-Family, Multi-Family, and
770                 Commercial Generators in Containers.
771
772           B.    Collecting Solid Waste, Recyclable Materials, and Compostable Materials from
773                 City facilities (as defined in Exhibit A of this Agreement) and at special events
774                 (as defined in Exhibit B of this Agreement) and Collecting Solid Waste and
775                 Recyclable Materials from public litter and recycling Containers (as defined and
776                 identified in Exhibit A of this Agreement).
777
778           C.    Transporting Collected materials to the Approved Disposal Location, Approved
779                 Composting Site, or Approved Recyclables Processing Site.
780
781           D.    Processing and marketing, or arranging for Processing and marketing of
782                 Recyclable Materials and Compostable Materials Collected in the City by
783                 Contractor.
784
785           E.    Providing public education to residents and businesses located in the City as
786                 defined in Exhibits C and C-1.
787
788           F.    Providing Customer service and billing service as necessary to fulfill its
789                 obligations under this Agreement.
790
791           G.    Implementing all services in accordance with the implementation plan in Exhibit
792                 D.
793
794           H.    Furnishing all labor, supervision, vehicles, Containers, other equipment,
795                 materials, supplies, and all other items and services necessary to perform its
796                 obligations under this Agreement.
797
798           I.    Paying all expenses related to provision of services required by this Agreement
799                 including, but not limited to, taxes, regulatory fees, City fees, utilities, etc.
800
801           J.    Performing or providing all other services necessary to fulfill its obligations under
802                 this Agreement.
803
804           K.    Providing all services required by this Agreement in a thorough and professional
805                 manner so that residents, businesses, and the City are provided timely, reliable,
806                 courteous and high-quality service at all times.
807
808           L.    Performing all services in substantial accordance with the Contractor’s Proposal
809                 and in full accordance with this Agreement at all times using best industry



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810                 practice for comparable operations. If the Contractor’s Proposal and Agreement
811                 conflict, the terms and provisions of the Agreement shall prevail.
812
813           M.    Complying with Applicable Law.
814
815           N.    Providing reports in a timely manner with details as requested by the City
816                 pursuant to Sections 6.3, 6.4, and 6.5.
817
818           The enumeration and specification of particular aspects of service, labor, or equipment
819           requirements shall not relieve Contractor of the duty of accomplishing all other aspects
820           necessary to fulfill its obligations under this Agreement whether such requirements are
821           enumerated elsewhere in the Agreement or not, unless excused in accordance with
822           Section 11.7.


823   4.2     Limitations to Scope

824           This Agreement for the Collection and Transportation of Solid Waste and Collection,
825           Transportation, and Processing of Recyclable Materials and Compostable Materials
826           granted to Contractor shall be exclusive except as to the following materials listed in
827           this Section. The award of this Agreement shall not preclude the categories of Solid
828           Waste, Recyclable Materials, and Compostable Materials listed below from being
829           delivered to and Collected and Transported by others provided that nothing in this
830           Agreement is intended to or shall be construed to excuse any Person from obtaining any
831           authorization from City which is otherwise required by law:
832
833           A.    Recyclable and Compostable Materials Hauled by Other Permitted Persons.
834                 Other Persons shall maintain the right to Collect Specialty Recyclables, to accept
835                 donated Recyclable Materials, and to pay the service recipient for Recyclable
836                 Materials for the Collection of Source Separated Recyclable Materials and Source
837                 Separated Compostable Materials in a manner consistent with provisions of the
838                 City’s Recyclable Materials permit system pursuant to Article IV of Chapter 8.08
839                 of the City’s Municipal Code (Title 8, Health and Safety, Chapter 8.08, Solid
840                 Waste Management).
841
842           B.    Construction and Demolition Debris Hauled by Other Permitted Persons.
843                 Other Persons maintain the right to Collect Construction and Demolition Debris
844                 removed from Premises and managed in a manner complying fully with Diversion
845                 requirements of an approved Waste Management Plan, as that term is defined in
846                 Section15.28 of the City of Livermore Municipal Code;
847
848           C.    Self-Hauled Materials. A Commercial business Owner or Resident may Dispose
849                 of Solid Waste, Recyclable Materials, and Compostable Materials generated in or
850                 on their own Premises with their own vehicle;
851




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852           D.    Donated Materials. Recyclable Materials and Compostable Materials which are
853                 Source Separated at any Premises by the Generator and donated to youth, civic, or
854                 charitable organizations;
855
856           E.    Beverage Containers. Containers delivered for Recycling under the California
857                 Beverage Container Recycling and Litter Reduction Act, Section 14500, et seq.
858                 California Public Resources Code;
859
860           F.    Materials Removed by Customer’s Contractor as Incidental Part of Services.
861                 Solid Waste, Recyclable Materials, Compostable Materials and/or Construction
862                 and Demolition Debris removed from a Premises by a contractor (e.g., gardener,
863                 landscaper, or tree-trimming service, construction contractor) as an incidental part
864                 of the service being performed and such contractor removes materials at no
865                 additional or separate fee. The determination of whether removal of material is
866                 incidental to the services being performed may, for example, be based on whether
867                 fees are charged on a volume or hourly basis, and the reasonableness of those fees
868                 relative to those charged by third parties for comparable services;
869
870           G.    Animal, Grease Waste, and Used Cooking Oil. Animal waste and remains from
871                 slaughterhouse or butcher shops, grease, or used cooking oil;
872
873           H.    Sewage Treatment By-Product. By-products of sewage treatment, including
874                 sludge, sludge ash, grit and screenings;
875
876           I.    Hazardous Waste and Designated Waste. Hazardous Waste and Designated
877                 Waste regardless of its source; and,
878
879           J.    Materials Generated by Public School, County, and Federal Facilities.
880                 Materials generated by public schools, county, and federal facilities located in the
881                 City provided that the Generator has arranged services with other Persons or has
882                 arranged services with the Contractor through a separate agreement.
883
884           Contractor acknowledges and agrees that the City may permit other Persons besides the
885           Contractor to Collect any and all types of materials excluded from the scope of this
886           Franchise, as set forth above, without seeking or obtaining approval of Contractor. If
887           Contractor can produce evidence that other Persons are servicing Collection Containers
888           or are Collecting and Transporting Solid Waste, Recyclable Materials, Compostable
889           Materials and/or Construction and Demolition Debris in a manner that is not consistent
890           with the City’s Municipal Code, it shall report the location, the name and phone number
891           of the Person or company to the City along with Contractor’s evidence of the violation
892           of the exclusiveness of this Franchise.
893
894           The City shall not be responsible for any lost profits or losses claimed by Contractor to
895           arise out of limitations of the scope of the Agreement set forth herein. In such an event,
896           it shall be the responsibility of Contractor to minimize the financial impact to other
897           services being provided as much as possible.



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898   4.3     City-Directed Changes

899           A.    Types of Changes. City may, by written notice, direct Contractor to perform
900                 additional services or modify existing services. For example, and without
901                 limitation, the City may request the following:
902
903                 1.    Collection of certain materials, which were originally Solid Waste, but
904                       during the Term can, in the reasonable opinion of the City, be economically
905                       Recycled or Composted;
906                 2.    Inclusion of new Diversion programs;
907                 3.    Expansion of public education activities;
908                 4.    Elimination of programs;
909                 5.    Modification of the manner in which Contractor performs existing services;
910                 6.    Performance of pilot programs;
911                 7.    Implementation of innovative services, which may entail new Collection
912                       methods, targeted routing, different kinds of services, different types of
913                       Collection vehicles or Collection Containers, and/or new requirements for
914                       Generators, but nothing herein shall be constructed so as to materially
915                       impair the exclusive rights of Contractor granted hereunder;
916                 8.    Transportation of materials to an Approved Disposal Site, Approved
917                       Composting Site, or Approved Recyclables Processing Site other than that
918                       specified on the Effective Date;
919                 9.    Purchase of new Collection vehicles, Containers, or other equipment if the
920                       Agreement is extended beyond the initial ten-year (10-year) Term; and,
921                 10.   Implementation of other program or service adjustments as may be
922                       determined.
923
924           B.    Procedure for Making Changes in Scope. Contractor shall present, within
925                 thirty (30) calendar days of the City’s written request, a written proposal to
926                 perform additional or modified services. Contractor shall not be compensated for
927                 the proposal preparation costs or costs incurred during the negotiation of its
928                 proposal for the change in scope of such services. At a minimum, the proposal
929                 shall contain a complete description of the following:
930
931                 1.    Collection methodology to be employed (equipment, staffing requirements,
932                       etc.).
933                 2.    Equipment to be used (vehicle number, types, capacity, age, etc.).
934                 3.    Labor requirements (number of employees by classification; estimated
935                       hours per year per employee).
936                 4.    Estimated customer participation level.
937                 5.    Type of materials to be Collected and Containers to be used and estimated
938                       volumes per week and per year.
939                 6.    Provision for program publicity/education/marketing.
940                 7.    Five-year projection of the financial results of the program's operations in a
941                       balance sheet and operating statement format including documentation of
942                       the key assumptions underlying the projections and the support for those
943                       assumptions, giving full effect to the savings or costs to existing services.

      City of Livermore                                                          Franchise Agreement
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944                 8.    Plans and schedule for implementing the service change.
945
946                 The City shall review the Contractor’s proposal for the change in scope of
947                 services. The City may negotiate with the Contractor to amend the Agreement to
948                 reflect the change in scope or the City may choose not to negotiate with the
949                 Contractor.
950
951                 If the City chooses to negotiate with the Contractor and the Contractor and City
952                 cannot agree on terms and conditions of such services within one hundred twenty
953                 (120) calendar days from the date when City first requests a proposal from
954                 Contractor to perform such services, Contractor acknowledges and agrees that
955                 City may permit other Persons besides Contractor to provide additional Solid
956                 Waste, Recyclable Materials, and Compostable Materials Collection and
957                 Diversion services not otherwise contemplated by this.
958
959           C.    Adjustment to Contractor’s Compensation. If the City directs a change in
960                 scope or Approved Disposal Site, Approved Recyclables Processing Site, or
961                 Approved Composting Site, Contractor may be entitled to an adjustment in its
962                 compensation in accordance with Section 8.5.
963
964           D.    Implementation of New Services. The Contractor’s implementation of the new
965                 services, modification to existing service, or change in the Approved Disposal
966                 Site, Approved Recyclables Processing Site, or Approved Composting Site shall
967                 occur in a timely, smooth, and seamless manner such that Customers and/or
968                 Generators do not experience disruption in Collection services. Contractor shall
969                 be responsible for managing the implementation of new or modified Collection
970                 services or change in the Approved Disposal Site, Approved Recyclables
971                 Processing Site, or Approved Composting Site and other related services and shall
972                 do so in accordance with an implementation plan that has been approved by the
973                 City.
974
975           E.    Monitoring and Evaluation of Changes in Scope. At the City’s request, the
976                 Contractor shall meet with the City to describe the progress of implementing the
977                 change in scope. If applicable, and requested by the City, the Contractor shall
978                 document the results of the new or modified services on a monthly basis,
979                 including, at a minimum, the Tonnage Diverted by material type, the end use or
980                 processor of the Diverted materials, the cost per Ton for Transporting and
981                 Processing each type of material, and other such information requested by the
982                 City that is necessary to evaluate the performance of each program change.
983
984                 At each status meeting, the City and Contractor shall have the opportunity to
985                 revise the program or services based on mutually agreed upon terms in
986                 accordance with provisions of this Section. The City shall have the right to
987                 terminate a program if, in its sole discretion, the Contractor is not achieving the
988                 program goals and objectives in a cost-effective manner.              Before such
989                 termination, the City shall meet and confer with the Contractor for a period not to
990                 exceed ninety (90) calendar days to resolve the City’s concerns (“meet and confer


      City of Livermore                                                         Franchise Agreement
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 991                 period”). Thereafter, the City may utilize a third party to perform these services if
 992                 the City reasonably believes the third party can improve Contractor’s
 993                 performance and/or cost. Notwithstanding these changes, Contractor shall
 994                 continue the program during the “meet and confer period” and, thereafter, until
 995                 the third party takes over the program.


 996   4.4     Transition to Next Contractor at End of Agreement

 997           If applicable, before expiration or earlier termination of this Agreement, Contractor will
 998           take direction from the City and subsequent contractor to assist in a timely and orderly
 999           transition of services from Contractor to subsequent contractor. In response to the
1000           City’s direction, Contractor shall provide then-current route lists, which identify each
1001           Customer on the route, its service level (number of Containers, Container sizes,
1002           frequency of Collection, scheduled Collection day), and any special Collection notes,
1003           and detailed then-current Customer account and Billing information. Contractor may,
1004           but shall not be obliged to, sell Collection vehicles, equipment, or facilities to the next
1005           contractor.


1006   4.5     City Free to Negotiate with Third Parties

1007           The City may investigate all options for Collection, Transportation, Processing, and
1008           Disposal services that will be scheduled to commence after the expiration of the Term
1009           or earlier termination of this Agreement. Without limiting the generality of the
1010           foregoing, the City may solicit proposals from Contractor and from third parties for the
1011           provision of Collection, Transportation, Processing, or Disposal of Solid Waste,
1012           Recyclable Materials, and Compostable Materials services, and any combination
1013           thereof. The City may negotiate and execute agreements for such services that will take
1014           effect upon the expiration or earlier termination of this Agreement.
1015

1016                                       ARTICLE 5.
1017                                  COLLECTION SERVICES


1018   5.1     General

1019           The work to be done by Contractor pursuant to this Agreement shall include the
1020           furnishing of all labor, supervision, equipment, materials, supplies, and all other items
1021           necessary to perform the services required by this Agreement. The enumeration and
1022           specification of requirements for particular items of labor or equipment shall not relieve
1023           Contractor of the duty to furnish all others, whether enumerated elsewhere in the
1024           Agreement or not.
1025

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1026           The work to be done by Contractor pursuant to this Agreement shall be accomplished in
1027           a thorough and professional manner so that the residents and businesses within the City
1028           are provided reliable, courteous, and high-quality service at all times. The enumeration
1029           and specification of requirements for particular aspects of service quality shall not
1030           relieve Contractor of the duty of accomplishing all other aspects, whether they are
1031           enumerated elsewhere in the Agreement or not.
1032
1033           Contractor acknowledges that the City is committed to Diverting materials from
1034           Disposal through the implementation of source reduction, reuse, Recycling and
1035           Composting programs and that the City may at some time in the future implement, in
1036           accordance with Section 4.3, new programs that may impact the overall quantity or
1037           composition of Solid Waste, Recyclable Materials, and Compostable Materials to be
1038           Collected by Contractor.


1039   5.2     Solid Waste Services

1040           5.2.1       Single-Family Solid Waste Collection Service

1041           Contractor shall Collect Solid Waste in Contractor-provided Carts once per week from
1042           Single-Family Premises and Transport all Solid Waste to the Approved Disposal Site
1043           for Disposal.
1044
1045           Contractor shall provide each Customer with a 20-, 32-, 64-, or 96-gallon Cart (or
1046           similar sizes approved by the City) as requested by the Customer. For Single-Family
1047           Premises, Contractor shall Collect Carts from the Curbside (or at other designated
1048           locations for townhomes, condominiums, or attached Single-Family Premises) unless
1049           the Occupant is physically unable to place the Container Curbside and such Person has
1050           applied for and been approved for a Curbside service exemption due to a disability
1051           defined by the Americans with Disabilities Act pursuant to Section 6.14. In such case,
1052           Contractor shall Collect Carts from an alternative service location (such as the side yard
1053           or back yard) at no additional fee. Customers that are physically capable of moving
1054           Carts Curbside may choose to subscribe to side yard or back yard service and
1055           Contractor shall Collect Carts from the alternative service location and may charge the
1056           Customer for the extra service in accordance with the City-approved Rate on the Rate
1057           Schedule in Exhibit H.
1058
1059           Contractor shall replace Solid Waste Carts that have been stolen or damaged at no cost
1060           to the Customer not more than once per year. Additional Cart replacements shall be
1061           charged to the Customer at a Rate equal to Contractor’s actual purchase price of Cart
1062           (plus cost of Cart assembly) and such Rate shall be approved by the City as shown on
1063           the Rate Schedule in Exhibit H.
1064
1065           5.2.2       Single-Family On-Call Curbside Clean-Up Service

1066           A.      General Requirements. Contractor shall provide each Single-Family Customer
1067                   with three (3) on-call Curbside (or at other designated location for townhomes,


       City of Livermore                                                          Franchise Agreement
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1068                 condominiums, or attached Single-Family Premises) clean-up services per year at
1069                 the Customer’s request at no charge. The Contractor shall promote, manage,
1070                 staff, and operate the on-call clean-up services.
1071
1072                 Contractor shall promote the service annually by preparing billing inserts to be
1073                 included in each Customer’s bill and by advertising in a minimum of two (2) local
1074                 newspapers as approved by the City. The City shall approve all advertisements or
1075                 public announcements related to the on-call clean-up service.
1076
1077           B.    Scheduling. Contractor shall provide clean-up services Monday through Friday
1078                 except on Holidays. The Contractor shall provide the service to the Customer
1079                 within five (5) Business Days of the Customer’s request on a day agreed to by the
1080                 Customer and Contractor. Contractor may provide additional on-call clean-up
1081                 service for a Customer beyond three (3) per year, and in such case shall be
1082                 entitled to charge the Customer for such service at the City-approved Rate on the
1083                 Rate Schedule in Exhibit H.
1084
1085           C.    Accepted Materials. During each on-call clean-up event, the Single-Family
1086                 Customer may deliver Curbside, and Contractor shall accept for Collection, the
1087                 materials listed below:
1088
1089                 1.    Up to three (3) cubic yards of Solid Waste, Recyclables, and Yard
1090                       Trimmings, including clean unfinished wood.
1091                 2.    One (1) Appliance or one (1) E-Waste item.
1092                 3.    Additional Appliances, Bulky Items, and E-Waste items if the Generator or
1093                       Customer pays an additional fee at the City-approved Rate on the Rate
1094                       Schedule in Exhibit H.
1095
1096                 Contractor may reject: E-Waste (with the exception that one E-Waste item is
1097                 allowed if an Appliance is not Collected); liquids or sludges; materials which
1098                 exceed five (5) feet in length and are not bundled; painted or stained wood;
1099                 automotive batteries; used motor oil; pesticides; Construction and Demolition
1100                 Debris; Hazardous Waste; or Infectious Waste. Contractor may reject a single
1101                 item that weights more than seventy-five (75) pounds (excluding Bulky Items)
1102                 unless Customer has paid an additional fee for service at the City-approved Rate
1103                 on the Rate Schedule in Exhibit H. Contractor may also reject un-containerized
1104                 materials, materials that are not bundled, or other items that exceed the Collection
1105                 abilities as determined by the Contractor and approved by the City.
1106
1107                 Each Customer shall be instructed to place all items to be Collected by Contractor
1108                 Curbside by 6:00 a.m. on pick-up day to ensure Collection.
1109
1110           D.    Processing and Disposal. Contractor shall Collect materials and Transport the
1111                 materials to Approved Disposal Site, Approved Recyclables Processing Site, or
1112                 Approved Composting Site with the exception of Appliances and E-Waste that
1113                 may be delivered to a recycler or dismantling company and furniture and other
1114                 reusable items that may be delivered to a third party for reuse or Recycling. The


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1115                 site or site(s) and/or Subcontractor(s) that Contractor selects to handle, Process,
1116                 and/or Dispose of Appliances and E-Waste shall be approved by the City.
1117
1118           E.    Collection, Recycling, and Reuse Methods. Contractor shall instruct its
1119                 customer service agents to query each Customer about the amounts and types of
1120                 materials the Customer plans to set out. The customer service agents shall instruct
1121                 Customers to separate their materials in order to facilitate Recycling and
1122                 Composting and shall inform Customers of how exactly to prepare the materials
1123                 they set out at the Curb. For each on-call clean-up event, the Contractor will
1124                 dispatch regular route Collection vehicle drivers to the Premises to separately
1125                 Collect Solid Waste, Recyclable Materials, and/or Compostable Materials.
1126                 Drivers will document the estimated amount of material removed. Contractor
1127                 shall Transport materials Collected to the Approved Disposal Site, Approved
1128                 Recyclables Processing Site, or Approved Composting Site. All other material
1129                 (such as Appliances, E-Waste, furniture) that were not Collected by the regular
1130                 Solid Waste, Recyclable Materials, or Compostable Materials route vehicles will
1131                 be Collected by a specially-dispatched flat-bed truck. Through Contractor’s
1132                 Collection approach, the following materials, at a minimum, shall be Collected
1133                 separately and Diverted through Recycling, Composting, or other Diversion
1134                 efforts: clean, untreated wood and Yard Trimmings, cardboard, and Appliances.
1135
1136                 Contractor shall deliver Appliances to a local recycler, and all other items will be
1137                 stored at a staging area at the Contractor’s Livermore yard. Contractor shall
1138                 encourage and facilitate the participation of Re-Use Vendor(s) to select and sort
1139                 out Recyclable and reusable items at the point of Collection or at Contractor’s
1140                 Livermore yard. Marketing of reusable materials that are designated for reuse by
1141                 the Re-Use Vendor(s) may include clothing, toys, house wares, linens, wood
1142                 furniture, tables, chairs, working computers, undamaged monitors, cell phones,
1143                 books, working small appliances, working VCRs and DVDs, and working stereos.
1144                 Contractor plans include gleaning of the materials delivered to its Livermore yard
1145                 first by Re-Use Vendors (such as local charities and non-profits), and then by a
1146                 for-profit salvage company such as Urban Ore, which will target architectural
1147                 items, hardware, and fixtures for resale. Contractor shall Transport materials that
1148                 are not desired by the Re-Use Vendor(s) to the Approved Disposal Site,
1149                 Approved Recyclables Processing Site, or Approved Composting Site.
1150
1151           F.    Handling Bulky Items and E-Waste. Note that pursuant to Section 5.2.2.C,
1152                 Contractor shall Collect one Appliance or one E-Waste item at no cost per clean-
1153                 up event. This Section addresses all other Appliances, Bulky Items, and E-Waste
1154                 items. If the Customer has not paid for removal of Bulky Items or E-Waste,
1155                 Contractor is not required to Collect the Bulky Item or E-Waste during the clean-
1156                 up event. In such case, Contractor shall be required to attach a tag to the Bulky
1157                 Item or E-Waste informing the Generator that the Generator must contact
1158                 Contractor to arrange for and pay for separate Collection of the Bulky Item and E-
1159                 Waste. Alternatively, the Generator may contact a Re-Use Vendor for collection
1160                 of the Bulky Item.
1161


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1162           G.      Handling Major Appliances. Major Appliances shall be reused, Recycled, or
1163                   Disposed by Contractor in accordance with requirements of Applicable Law.
1164
1165           5.2.3       On-Call Bulky Item Collection

1166           Residential and Commercial Customers may make special arrangements with the
1167           Contractor for the Collection and Recycling or Disposal of Bulky Items and Contractor
1168           shall charge such Customers for Collection of such items in accordance with City-
1169           approved Rates on the Rate Schedule in Exhibit H. Contractor shall arrange for repair,
1170           refurbishing, or upgrading electronic equipment for donation or resale to the greatest
1171           extent practical. Additional requirements related to Bulky Item services include the
1172           following:
1173
1174           A.      Contractor shall prioritize the re-use and Recycling of Bulky Items. When
1175                   possible, Contractor shall contact Re-Use Vendors to pickup Appliances,
1176                   furniture, and other operational or functional items.
1177           B.      Appliances and other materials that cannot be re-used should be Recycled by
1178                   Contractor when possible.
1179           C.      Contractor shall Dispose of Bulky Items as a last resort.
1180
1181           5.2.4       Multi-Family Solid Waste Collection Service

1182           Contractor shall Collect Solid Waste from Multi-Family Premises as frequently as
1183           scheduled by the Customer, up to six (6) times per week but not less than once per
1184           week. Contractor shall offer Multi-Family Premises the option of subscribing to Cart,
1185           Bin, Drop Box, or Compactor service. Contractor shall provide one or more Containers
1186           to such Premises as requested by Customer provided that no less than ninety-six (96)
1187           gallons of Container capacity is provided for every four (4) dwelling units in the
1188           Premises. Contractor shall Collect Solid Waste from Containers at a location selected
1189           by the Customer and approved by the City.
1190
1191           Contractor shall open and close gates, push and/or pull Containers, lock and unlock
1192           Containers, or perform other services as reasonably necessary to access and empty the
1193           Containers and shall not charge Customers any additional fees for such services.
1194
1195           5.2.5       Intentionally Deleted

1196           5.2.6       Commercial Solid Waste Collection Service

1197           Contractor shall Collect Solid Waste from Commercial Premises as frequently as
1198           scheduled by the Customer, up to six (6) times per week but not less than once per week
1199           with the exception that non-putrescible materials segregated for Collection in Drop
1200           Boxes or Compactors (serviced by roll-off Collection trucks) may be Collected less
1201           than once per week. Contractor shall offer Commercial Premises the option of
1202           subscribing to Cart, Bin, Drop Box, or Compactor service. Contractor shall Collect
1203           Solid Waste from Containers at a location selected by the Customer and approved by
1204           the City.
1205

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1206           Commercial Solid Waste Collection shall be performed at a time mutually agreed upon
1207           by Contractor and the Customer and which is consistent with allowable Collection
1208           hours specified in Section 5.14.3. Contractor shall allow each Commercial Customer to
1209           select a Collection service methodology that best suits the needs of its Premises.
1210           Specifically, the Contractor shall offer the following Collection service methodologies
1211           to Commercial Customers:
1212
1213           A.      Individual Cart or Bin Service. Contractor shall allow each Commercial
1214                   Premises to use Carts or Bins for Solid Waste Collection. Contractor shall
1215                   provide each Customer with a choice of one or more Carts with capacities of 32,
1216                   64, or 96 gallons (or similar sizes approved by the City) or Bins with capacities
1217                   ranging from 1 to 7 cubic yards (or similar sizes approved by the City).
1218
1219           B.      Centralized Bin or Cart Service. Contractor shall allow each Commercial
1220                   Premises to use Carts or Bins for Solid Waste Collection that are shared by the
1221                   Occupants of two (2) or more adjacent Commercial Premises. In such case,
1222                   Contractor shall provide one (1) or more Carts or Bins as requested by
1223                   Customer(s) provided that no less than 96 gallons (or similar volume) of
1224                   Container capacity is provided for every four (4) Commercial Premises.
1225                   Contractor shall provide each Customer with a choice of one or more Carts with
1226                   capacities ranging from 32 to 96 gallons (or similar sizes approved by the City) or
1227                   Bins with capacities ranging from 1 to 7 cubic yards (or similar sizes approved by
1228                   the City).
1229
1230           C.      Drop Boxes and Large Compactors. Contractor shall allow a Customer to use a
1231                   Drop Box or Compactor with a roll-off Compactor Container for Solid Waste
1232                   Collection to meet the Customer’s Solid Waste Collection needs. In such case,
1233                   Contractor shall provide Customer with a choice of Container capacities ranging
1234                   from 6 to 50 cubic yards (or similar sizes approved by the City). Contractor shall
1235                   offer Customers the option to purchase or lease Compactors through either the
1236                   Contractor or an outside vendor.
1237
1238           Contractor shall open and close gates, push and/or pull Containers, lock and unlock
1239           Containers, or perform other services as reasonably necessary to access and empty the
1240           Containers and shall not charge Customers any additional fees for such services.
1241
1242           5.2.7       Handy Hauler Service

1243           Contractor shall offer rentals of four-cubic-yard Bins to all Customers for Solid Waste
1244           Collection on a temporary basis when Customers are remodeling, cleaning their
1245           property, or performing other projects. Contractor shall charge Customers for this
1246           service in accordance with City-approved Rates on the Rate Schedule in Exhibit H.




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1247   5.3     Recycling Services

1248           5.3.1       General

1249           Contractor shall Collect Single-Stream Recyclable Materials that are commingled in the
1250           Customer’s Recyclable Materials Collection Container provided that the Customer has
1251           Source Separated the Recyclable Materials from Solid Waste. The types of Single-
1252           Stream Recyclable Materials to be Collected by Contractor are specified in Section
1253           1.84. Contractor shall Transport all Recyclables Collected to the Approved Recyclables
1254           Processing Site for Processing.
1255
1256           In accordance with Section 4.3, the City may request Contractor to modify its scope of
1257           services to include Collection of additional types of Recyclable Materials beyond those
1258           materials defined in Section 1.84. If the City requests Collection of additional
1259           Recyclable Materials, the Contractor shall not receive additional compensation for
1260           Collection service if the Recyclable Materials are placed by Generator in the Recyclable
1261           Materials Container unless Contractor can demonstrate that Collection of the additional
1262           material(s) requires modifications to Collection routes to accommodate the additional
1263           volume of the material(s). An adjustment to Contractor’s Rates may be made for
1264           changes in Processing costs in accordance with Sections 4.3 and 8.5.
1265
1266           5.3.2       Single-Family Service

1267           A.      General. Contractor shall Collect all Single-Stream Recyclable Materials from
1268                   Single-Family Premises once each week on the regularly scheduled Solid Waste
1269                   Collection day. Contractor shall supply each Single-Family Customer with one
1270                   (1) Cart for storage and Collection of a Single-Stream Recyclable Materials. The
1271                   Contractor shall provide each Customer a 96-gallon Cart (or similar size approved
1272                   by the City) unless the Customer requests a smaller Cart size, in which case, the
1273                   Contractor shall provide a 20-, 32-, or 64-gallon Cart (or similar sizes approved
1274                   by the City).
1275
1276           B.      Additional Cart. If a Customer requests a second Recyclables Cart, Contractor
1277                   shall provide the Cart to the Customer for regular weekly Collection service. The
1278                   Contractor shall charge the Customer for the extra Recyclables Cart at the Rate
1279                   approved by the City on the Rate Schedule in Exhibit H.
1280
1281           C.      Collection Location including Disabled Customer Service. For Single-Family
1282                   Premises, Contractor shall Collect Carts from the Curb (or at other designated
1283                   location for townhomes, condos, or attached Single-Family Premises) unless the
1284                   Occupant is physically unable to place the Container Curbside and such Person
1285                   has applied for and been approved for a Curbside service exemption due to a
1286                   disability defined by the Americans with Disabilities Act pursuant to Section
1287                   6.14. In such case, Contractor shall Collect Carts from an alternative service
1288                   location (such as the side yard or back yard) at no additional fee. Customers that
1289                   are physically capable of moving Carts Curbside may choose to subscribe to side
1290                   yard or back yard service. In such cases, Contractor shall Collect Carts from the

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1291                 alternative service location and charge the Customer for the extra service in
1292                 accordance with the City-approved Rate on the Rate Schedule in Exhibit H.
1293
1294           D.    Cart Replacement. Contractor shall replace Containers, which were specifically
1295                 designated for Recyclable Materials, that have been stolen or damaged at no cost
1296                 to the Customer not more than once per year. Additional Cart replacements shall
1297                 be charged to the Customer at a City-approved Rate on the Rate Schedule in
1298                 Exhibit H.
1299
1300           E.    Setout Instructions and Notices. Contractor shall instruct Single-Family
1301                 Customers as to any necessary preparation of materials; the proper placement of
1302                 Recycling Carts Curbside; and shall notify Single-Family Generators who fail to
1303                 follow these instructions. In cases of extreme or repeated failure to comply with
1304                 the instructions, Contractor may decline to pickup the Recyclable Materials but
1305                 must notify the Customer of the reason and what steps must be taken by Customer
1306                 to recommence service.
1307
1308           F.    Motor Oil Collection. Contractor shall Collect all Single-Stream Recyclable
1309                 Materials from Carts with the exception of used motor oil and oil filters which
1310                 shall be Collected from the ground adjacent to the Carts. Contractor shall Collect
1311                 used motor oil once per week from Single-Family Customers who request it if the
1312                 Customers place the oil in one (1) gallon translucent plastic containers with screw
1313                 tops provided by the Contractor. Contractor shall provide the used motor oil
1314                 container to a Residential Customer within two (2) Business Days of such request
1315                 by Customer at no additional cost to Customer. Generators shall be instructed to
1316                 place the used oil adjacent to its Recyclables Cart. Upon Collection of used
1317                 motor oil from a Generator, Contractor shall leave a clean, empty, usable one (1)
1318                 gallon used motor oil container adjacent to the Recyclables Cart. Contractor shall
1319                 not be required to Collect more than one gallon of used motor oil per individual
1320                 dwelling unit per week from Single-Family Customers who request it.
1321
1322                 Contractor shall Collect used motor oil filters once per week in plastic
1323                 disposable resealable zipper bags which are at least six (6) Mil thick (0.006
1324                 inches thick) and are provided by Contractor. Contractor shall provide the used
1325                 oil filter zipper bags to Single-Family Occupants upon Occupant’s request within
1326                 two (2) Business Days of such request, at no additional cost. Generators shall be
1327                 instructed to place the used oil filter in the Recycling Cart or adjacent to the
1328                 Recycling Cart at the Contractor’s preference.
1329
1330           G.    Quarterly Textile Collection. Contractor shall work together with the City to
1331                 create a program for Curbside Collection of textiles that will occur for five
1332                 consecutive days (Monday through Friday) once during each quarter. The City
1333                 and Contractor shall mutually agree to the week that the textile collection will be
1334                 performed. Contractor shall notify Customers through a variety of outreach tools
1335                 including their newsletter and website that, on a specific Collection day, Single-
1336                 Family Customers have an opportunity to donate used clothing to those in need.
1337                 Contractor shall instruct Customers to place the dry, clean clothing into a clear


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1338                   plastic trash bag and place it at the Curb with their regular set-out. The
1339                   Contractor’s global positioning system (GPS) will be designed with three buttons
1340                   that sends a signal when activated to dispatch that either identifies a “Can Not
1341                   Out”, “Problem Event” and now a “Clothes Bag Out” signal to dispatch with a
1342                   different colored triangle in front of the address. The driver’s first load is the
1343                   Solid Waste Collection pass and as the driver approaches a Customer Solid Waste
1344                   Cart and sees the bag of clothes the driver will flip the button in the cab that will
1345                   electronically tag the address as “Clothes Bag.” After Solid Waste route drivers
1346                   have completed the Solid Waste Collections for all routes that day, the Contractor
1347                   will produce a map showing all the service addresses. This map will be given to
1348                   the driver(s) responsible for the textiles bag pick up.
1349
1350                   Contractor anticipates utilizing its flat-bed truck and bulky pick-up crew and any
1351                   other employees needed on those five days a quarter to Collect and bring back the
1352                   bags to Contractor’s Livermore yard for consolidation. As a contingency,
1353                   Contractor may use vehicles from its reserve fleet for the quarterly bagged
1354                   clothing Collection service. Contractor shall work with several charities to accept
1355                   the materials on a rotating basis.
1356
1357           5.3.3       Multi-Family and Commercial Recycling

1358           A.      General. Commercial Customers shall have the option of subscribing to
1359                   Recyclable Materials Collection services and shall pay Contractor an additional
1360                   fee for such service in accordance with City-approved Rates on the Rate Schedule
1361                   in Exhibit H with the exception that Collection of one 96-gallon Recyclables Cart
1362                   once per week shall be provided at no cost as of the Commencement Date.
1363                   Contractor shall Collect all Single-Stream Recyclable Materials placed in
1364                   Containers for Collection from Multi-Family and Commercial Premises at least
1365                   once each week and up to six (6) times per week as scheduled by the Customer.
1366                   Contractor shall provide Carts, Bins, Drop Boxes, or Compactors for Recyclables
1367                   storage and Collection and shall place Containers in locations determined by the
1368                   Customer or property manager.
1369
1370                   Multi-Family and Commercial Recyclable Materials Collection shall be
1371                   performed at a time mutually agreed upon by Contractor and the Customer and
1372                   which is consistent with allowable Collection hours specified in Section 5.14.3.
1373                   The City reserves the right per Section 4.3 to direct Contractor to perform
1374                   additional Commercial Recycling services such as the use of selective routing to
1375                   Collect clean loads of Recyclable Materials in the event that Contractor is not
1376                   making adequate progress toward the City’s Diversion/Recycling goals.
1377
1378           B.      Expanding Customer Participation (“Universal Recycling”). To expand the
1379                   participation of Multi-Family and Commercial Customers in the Recyclables
1380                   Collection program, Contractor shall make a good faith effort to provide
1381                   Recyclables Collection service to all Multi-Family and Commercial Customers at
1382                   the Commencement of this Agreement. At a minimum, the Contractor shall make
1383                   a good faith effort to supply each Multi-Family Premises with twenty-four (24)
1384                   gallons of Recycling capacity per week per Residential unit (but in no case less

       City of Livermore                                                             Franchise Agreement
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1385                 than sixty-four (64) gallons of capacity per Premises) and each Commercial
1386                 Premises with one ninety-six (96) gallon Recyclables Cart. If the Customer is
1387                 subscribing to a higher level of service, then the Contractor shall match the
1388                 Customer’s current level of service.
1389
1390                 At least two (2) weeks prior to the scheduled Container delivery, Contractor shall
1391                 provide written notification to each Customer of the Contractor’s obligation to
1392                 provide each Multi-Family and Commercial Customer with a minimum level of
1393                 Recycling service and shall identify the number, size, and quantity of Recycling
1394                 Containers to be delivered to the Premises and scheduled delivery date. If the
1395                 Customer objects to this Recycling service prior to or following delivery of the
1396                 Containers, Contractor shall meet with the Customer at the Customer’s Premises
1397                 and conduct an on-site assessment of the Solid Waste and Recycling services.
1398                 The Contractor’s goal during the assessment shall be to provide assistance to the
1399                 Customer so that the Customer agrees to participate in the Recycling program. If
1400                 the Customer continues to refuse service, the Contractor shall send written
1401                 notification to the City of such refusal of service with documentation of the
1402                 refusal including date of notification, date of on-site assessment, name of
1403                 Customer or property manager and contact information. In such cases, Contractor
1404                 shall not be obligated to deliver Recycling Containers or provide Recyclables
1405                 Collection service to that Customer unless Customer requests service at a later
1406                 date.
1407
1408           C.    Commercial Service Options. Contractor shall allow Commercial Customers to
1409                 select a Collection service method that best suits the needs of its Premises.
1410                 Specifically, the Contractor shall offer the following choices to Commercial
1411                 Customers:
1412
1413                 1.    Individual Cart or Bin Service. Contractor shall allow Commercial
1414                       Customers to use Cart(s) or Bin(s) for Recyclable Materials Collection.
1415                       Contractor shall provide each Customer with a choice of one (1) or more
1416                       Carts with capacity of 32, 64, and 96 gallons and with one or more Bins
1417                       with capacities ranging from 1 to 7 cubic yards (or similar sizes approved
1418                       by the City).
1419
1420                 2.    Centralized Cart or Bin Service. Contractor shall allow Commercial
1421                       Customers to use Cart(s) or Bin(s) for Recyclable Materials Collection that
1422                       are shared by the Occupants of two (2) or more Commercial Premises. In
1423                       such case, Contractor shall provide one (1) or more Carts or Bins to such
1424                       Premises as requested by Customer(s).
1425
1426                 3.    Drop Boxes and Compactors. Contractor shall allow Commercial
1427                       Customers to use a Drop Box or Compactor for Recyclable Materials. In
1428                       such case, Contractor shall provide Customers with a choice of Container
1429                       capacities ranging from 10 to 50 cubic yards. Contractor shall offer
1430                       Customers the option to purchase or lease Compactors through Contractor
1431                       or an outside vendor.


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1432
1433           D.    Container Replacement.        Contractor shall replace Recyclable Materials
1434                 Containers that have been stolen or damaged, at no cost to the Multi-Family and
1435                 Commercial Premises, not more than once per year. Additional replacements
1436                 shall be charged to the Customer at the City-approved Rate on the Rate Schedule
1437                 in Exhibit H.
1438
1439           E.    Posters, Signage, and Other Education Materials. Pursuant to the public
1440                 education plan in Exhibit C, Contractor shall instruct (as part of the education
1441                 program) Multi-Family and Commercial Premises Customers and/or their
1442                 property managers as to any necessary preparation, separation, and placement of
1443                 Recyclable Materials and shall provide the property manager with the following
1444                 materials to facilitate Customer and tenant education:
1445
1446                 1.    Educational Recycling posters for strategic placement on the Premises. For
1447                       Multi-Family Premises, Contractor shall make the posters available for use
1448                       in areas frequented by tenants (such as in mail rooms, laundry rooms,
1449                       offices, etc.). For Commercial Premises, the Contractor shall make the
1450                       posters available for use in areas frequented by employees.
1451                 2.    Recycling signs at the Recycling Container locations that clearly indicate
1452                       the types of Recyclables that are accepted and those that are not.
1453                 3.    Move-In Kits for tenants of Multi-Family units as described in Exhibit C.
1454                 4.    “How To” Brochures as described in Exhibit C.
1455
1456                 Pursuant to Section 6.3.3.F, Contractor shall report its public education efforts to
1457                 the City on a quarterly basis.
1458
1459           F.    Notification of Improper Setout. Contractor shall notify Customers and their
1460                 property managers (if applicable) who fail, or whose residents or employees fail,
1461                 to follow Recycling instructions provided by Contractor. In cases of extreme or
1462                 repeated failure to comply with the instructions, Contractor shall notify the City
1463                 of the Customer’s violation of the City’s Municipal Code.
1464
1465           G.    Reusable Recyclable Storage Bags for Multi-Family Tenants. Upon the
1466                 Customer’s request, Contractor shall offer Multi-Family Customers reusable bags
1467                 for storage of Recyclables that can be provided to each tenant unit at no cost to
1468                 the Customer. Contractor shall promote the availability of the Recyclables
1469                 storage bags during the site visits with the Owner or property manager, and
1470                 through other Multi-Family public education efforts required by Exhibit C.
1471                 Contractor shall purchase a sufficient number of Recyclable storage bags to
1472                 maintain an inventory of bags so that upon a Multi-Family Customer’s request,
1473                 Contractor can deliver the bags to the Multi-Family Premises, and distribute the
1474                 bags (if requested) to each tenant unit at Multi-Family Premises within three (3)
1475                 weeks of request. Each bag shall be accompanied by a flyer describing the
1476                 Recycling program requirements.
1477



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1478                   The reusable Recyclable storage bags shall be made of 190 GM woven
1479                   polypropylene made with 100% recycled materials.            The bag shall be
1480                   approximately 15 inches by 7 inches by 16 inches and shall be equipped with two
1481                   nylon handles capable of carrying 20 pounds. Contractor must submit the bag
1482                   order (including material and design specifications, colors and identification
1483                   marks) to City for City’s written approval prior to submitting the order to the
1484                   manufacturer.
1485
1486           H.      Internal Recycling Bins for Commercial Customers. Upon the Customer’s
1487                   request, Contractor shall offer Commercial Customers a variety of Recycling
1488                   storage bins for use by the Customer inside their Premises to store Recyclables
1489                   prior to placement of the materials in the outdoor Containers to be serviced by
1490                   Contractor. Up to three (3) internal Recycling bins shall be provided at no cost to
1491                   the Customer. Contractor shall promote the availability of the internal Recycling
1492                   bins during the site visits with the Owner or property manager, and through other
1493                   Commercial public education efforts required by Exhibit C. Contractor shall
1494                   purchase a sufficient number of Recycling bins to maintain an inventory of bins
1495                   so that upon a Customer’s request, Contractor can deliver the Recycling bin(s) to
1496                   the Commercial Premises within two (2) weeks of request. Each Recycling bin
1497                   shall be accompanied by a flyer describing the Recycling program requirements.
1498
1499                   Contractor must submit the Recycling bin order (including material and design
1500                   specifications, colors, and identification marks) to City for City’s written approval
1501                   prior to submitting the order to the manufacturer.


1502   5.4     Compostable Materials Program

1503           5.4.1       Single-Family Compostables Service

1504           A.      General. Contractor shall Collect Compostable Materials (including Food Scraps
1505                   and Other Targeted Compostables) from each Single-Family Customer Curbside
1506                   once each week on the regularly scheduled Solid Waste Collection day.
1507                   Compostable Materials shall be Collected and Transported to the Approved
1508                   Composting Site for the purposes of Composting. Contractor shall instruct
1509                   Customers as to the types of Compostable materials accepted for Collection (and
1510                   those prohibited); any necessary preparation of Yard Trimmings (such as the
1511                   cutting of large items), Food Scraps, and Other Targeted Compostables; and the
1512                   appropriate use and placement of Carts designated for Compostable Materials
1513                   Collection. Contractor shall notify Customers who fail to follow these
1514                   instructions. In cases of extreme or repeated failure to comply with the
1515                   instructions, Contractor shall notify the City of the Customer’s violation of the
1516                   City’s Municipal Code.
1517
1518                   If a Single-Family Customer occupies a unit in a duplex or triplex, townhouse or
1519                   condominium or other attached Single-Family Premises, the Contractor shall not
1520                   provide the Compostable Materials Cart and Collection service unless the

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1521                 Customer requests such service. Determination of the Single-Family Customers
1522                 that shall not be provided with Compostable Materials Carts and Collection on the
1523                 Commencement Date of this Agreement shall initially be consistent with the
1524                 Customers that do not have Compostables Cart service as of the Commencement
1525                 Date.
1526
1527           B.    Carts. Contractor shall supply each Single-Family Customer with one Cart for
1528                 storage and Collection of Compostable Materials. The Contractor shall provide
1529                 each Customer a 96-gallon Cart (or similar size approved by the City) unless the
1530                 Customer requests a smaller Cart size, in which case, the Contractor shall provide
1531                 a 32- or 64-gallon Cart (or similar sizes approved by the City). If a Customer
1532                 requests a second Compostables Cart, Contractor shall provide the Cart to the
1533                 Customer and Collect Compostables on a weekly basis. The Contractor shall
1534                 charge the Customer for the extra Compostables Cart at the City-approved Rate
1535                 on the Rate Schedule in Exhibit H.
1536
1537                 Contractor shall replace Compostables Carts that have been stolen or damaged at
1538                 no cost to the Generator not more than once per year. Additional Cart
1539                 replacements shall be charged to the Generator at a Rate equal to Contractor’s
1540                 actual purchase price of Cart (plus cost of Cart assembly) and such Rate shall be
1541                 approved by the City as shown on the Rate schedule in Exhibit H.
1542
1543           C.    Kitchen Pails. Upon Customer request and at no cost to the Customer,
1544                 Contractor shall provide Single-Family Customers kitchen pails for use in the
1545                 kitchen suitable for the collection and storage of Food Scraps. Contractor shall
1546                 promote the availability of the kitchen pails through public education efforts
1547                 required by Exhibit C. Contractor shall purchase a sufficient number of kitchen
1548                 pails to maintain an inventory of pails so that upon a Single-Family Customer’s
1549                 request, Contractor can assemble (if needed) and deliver the pail to the Single-
1550                 Family Customer within one (1) week of request. Each kitchen pail shall be
1551                 accompanied by flyer describing the Compostable Materials program
1552                 requirements
1553
1554                 The kitchen pail shall be consistent in function and specifications to meet
1555                 guidelines or requirements of the StopWaste.Org (also known as the Alameda
1556                 County Waste Management Authority and Alameda County Source Reduction
1557                 and Recycling Board) Residential Food Scrap Subsidy Program. The kitchen pail
1558                 shall be made of rigid plastic, and have a capacity of 1.5 to 2.5 gallons, a wire or
1559                 plastic handle, and a lid. Contractor must submit kitchen pail order (including
1560                 material and design specifications, colors and identification marks) to City for
1561                 City’s written approval prior to submitting the order to the manufacturer.
1562
1563           D.    Overages Program. From time to time, particularly during the autumn,
1564                 Generators produce more Compostable Materials than that can be placed in their
1565                 Compostables Cart. Contractor shall establish an overages program that allows
1566                 Single-Family Generators to place additional Compostable Materials Curbside (in
1567                 bags adjacent to the Compostable Carts) for Collection on its regularly scheduled


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1568                   Collection day. For this overages program, Contractor shall make available 35-
1569                   gallon unbleached natural kraft paper bags (or similar size approved by the City)
1570                   for purchase at the Contractor’s local office, at other locations in the City (to be
1571                   identified by the Contractor and approved by the City) and via mail by ordering
1572                   from Contractor. Alternatively, Customers may provide their own kraft bags.
1573                   Contractor shall Collect overages with other Compostable Materials and
1574                   Transport the materials to the Approved Composting Site. Contractor shall
1575                   charge Customers for the overages Collection at City-approved Rates on the Rate
1576                   Schedule in Exhibit H. At Contractor’s option, Contractor may implement the
1577                   overages program on the Commencement Date or at a later date provided that the
1578                   program shall begin no later than September 1, 2010.
1579
1580           E.      Home Composting. Pursuant to the requirements of the public education
1581                   requirements in Exhibit C, Contractor shall promote home Composting activities
1582                   to Single-Family Customers.
1583
1584           F.      Collection Location including Disabled Customer Service. For Single-Family
1585                   Premises, Contractor shall Collect Carts from the Curb (or at other designated
1586                   location for townhomes, condos, or attached Single-Family Premises) unless the
1587                   Occupant is physically unable to place the Container Curbside and such Person
1588                   has applied and been approved for a Curbside service exemption due to a
1589                   disability defined by the Americans with Disabilities Act pursuant to Section
1590                   6.14. In such case, Contractor shall Collect Carts from an alternative service
1591                   location (such as the side yard or back yard) at no additional fee. Customers that
1592                   are physically capable of moving Carts Curbside may choose to subscribe to side
1593                   yard or back yard service. In such cases, Contractor shall Collect Carts from the
1594                   alternative service location and charge the Customer for the extra service in
1595                   accordance with the City-approved Rate on the Rate Schedule in Exhibit H.
1596
1597           5.4.2       Multi-Family Compostables Service

1598           If a Multi-Family Customer voluntarily subscribes to Compostable Collection service
1599           for Yard Trimmings, Food Scraps, and Other Targeted Compostables Collection, the
1600           Contractor shall provide such services in the same manner as that provided to
1601           Commercial Customers pursuant to Section 5.4.3.
1602
1603           5.4.3       Commercial Compostables Service

1604           A.      General. Commercial Customers shall have the option of subscribing to
1605                   Compostable Materials Collection services and shall pay Contractor an additional
1606                   fee for such service in accordance with City-approved Rates on the Rate Schedule
1607                   in Exhibit H with the exception that Collection of one 96-gallon Compostables
1608                   Cart once per week shall be provided at no cost of the Commencement Date.
1609                   Contractor shall Collect Compostable Materials from Commercial Premises that
1610                   have subscribed to Compostable Materials Collection service as frequently as
1611                   scheduled by Customer up to six (6) days per week, but not less than one (1) day
1612                   per week. Contractor shall provide Carts, Bins, Drop Boxes, or Compactors for


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                                                                                                Page 39
1613                 Compostables storage and Collection and shall place Containers in locations
1614                 determined by the Customer or property manager.
1615
1616                 Commercial Compostable Materials Collection shall be performed at a time
1617                 mutually agreed upon by Contractor and the Customer and which is consistent
1618                 with allowable Collection hours specified in Section 5.14.3.
1619
1620                 Contractor shall make best efforts to divert as much Commercial Food Scraps and
1621                 Other Targeted Compostables from Disposal as possible. Contractor shall allow
1622                 Customers to place plastic bags that contain Food Scraps in Containers for
1623                 Collection. Contractor shall continually look for more efficient and effective
1624                 ways of implementing the Commercial Food Scraps Program including, but not
1625                 limited to, investigating closer, less expensive Composting facilities and more
1626                 efficient routing and pick-up procedures. Additionally, Contractor shall pursue
1627                 and apply for any applicable grant or other cost saving opportunities that shall be
1628                 used to reduce Customer Rates in accordance with Section 3.F of Exhibit I and
1629                 Section 3.F of Exhibit J.
1630
1631                 Contractor will work with and support the City and any consultants contracted by
1632                 the City or StopWaste.Org (also known as the Alameda County Waste
1633                 Management Authority and Alameda County Source Reduction and Recycling
1634                 Board) to conduct Commercial Food Scraps audits.
1635
1636                 Any revenue other than Rate revenue that the Contractor receives specifically for
1637                 the Commercial Food Scraps Program, including but not limited to, the
1638                 StopWaste.Org Food Scrap Subsidy and Incentive payment programs, shall be
1639                 deducted from the Contractor’s total calculated costs to reduce Customer Rates in
1640                 accordance with Section 3.F of Exhibit I and Section 3.F of Exhibit J.
1641
1642           B.    Expanding Customer Participation (“Universal Compostables Collection”).
1643                 To expand the participation of Commercial Customers in the Food Scraps
1644                 Collection program, Contractor shall make a good faith effort to provide
1645                 Compostables Collection service to Commercial Customers particularly those that
1646                 generate large quantities of Food Scraps, or in cases where Food Scraps are a
1647                 substantial portion of the discarded materials (“Targeted Food Scraps Customer”).
1648                 The City and Contractor agree that, at a minimum, Targeted Food Scraps
1649                 Customers shall include the Customers presented in Exhibit O and Commercial
1650                 Customers with 25 or more employees. At a minimum, the Contractor shall make
1651                 good faith effort to contact each Targeted Food Scraps Customer individually,
1652                 supply each such Customer with one ninety-six (96) gallon Compostables Cart,
1653                 provide education materials, and provide training. If the Customer has
1654                 historically subscribed to a higher level of service or requests a higher level of
1655                 service (e.g., more than one ninety-six (96) gallon of service once per week), then
1656                 the Contractor shall provide and service Container(s) in number and size to match
1657                 the Customer’s current or requested level of service.
1658



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1659                 Contractor shall provide written notification to each Customer explaining
1660                 Contractor’s obligation to provide each Targeted Food Scraps Customer with a
1661                 minimum level of Compostables service and shall identify the number, size, and
1662                 quantity of Compostable Containers to be delivered to the Premises and scheduled
1663                 delivery date. If the Customer objects to this Compostables service prior to or
1664                 after delivery of the Containers, Contractor shall meet with the Customer at the
1665                 Customer’s Premises and conduct an on-site assessment of the Solid Waste,
1666                 Recycling, and Compostables services. The Contractor’s goal shall be to provide
1667                 assistance to the Customer so that the Customer agrees to participate in the
1668                 Compostables program. If the Customer continues to refuse service, the
1669                 Contractor shall send written notification to the City of such refusal of service
1670                 with documentation of the refusal including date of notification, date of on-site
1671                 assessment, name of contact Person and contact information. In such cases,
1672                 Contractor shall not be obligated to deliver Compostable Containers and provide
1673                 Compostables Collection service to that Customer unless Customer requests
1674                 service at a later date.
1675
1676           C.    Collection Service Options. Contractor shall provide Commercial Compostables
1677                 Customers, at the Customer’s option, with a Container appropriate for the needs
1678                 of the business and the available space in the enclosure for outside storage and
1679                 Collection of Compostable Materials. Contractor shall allow Commercial
1680                 Customers to select a Collection service method that best suits the needs of its
1681                 Premises in the same manner as that described in Section 5.3.3.C.
1682
1683           D.    Container Replacement. Contractor shall replace Containers, which are
1684                 specifically designated for Compostable Materials Collection, that have been
1685                 stolen or damaged at no cost to the Commercial Premises, not more than once per
1686                 year. Additional replacements shall be charged to the Customer at City-approved
1687                 Rates on the Rate Schedule in Exhibit H.
1688
1689           E.    Posters, Signage, and Other Education Materials. Pursuant to the public
1690                 education plan described in Exhibit C, Contractor shall instruct Commercial
1691                 Customers and/or their property managers as to any necessary preparation,
1692                 separation, and placement of Compostable Materials and shall provide posters,
1693                 signs, and other public education materials. Contractor shall maintain a special
1694                 telephone hotline for Commercial Compostables information that will ring
1695                 directly to a customer service representative that has special training and expertise
1696                 in this particular program.
1697
1698           F.    Notification of Improper Setout. Contractor shall notify Customers and their
1699                 property managers (if applicable) who fail, or whose residents or employees fail,
1700                 to follow the posted instructions. In cases of extreme or repeated failure to
1701                 comply with the instructions, Contractor shall notify the City of Customers that
1702                 are repeat offenders.
1703
1704           G.    Reporting. Pursuant to Sections 6.3.2 and 6.3.3, Contractor shall provide reports
1705                 to the City documenting its efforts to promote Compostable Collection services to


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1706                   Commercial Customers, site visits performed, number of Customers participating,
1707                   etc.
1708
1709           H.      Internal Compostable Bins. Upon the Customer’s request, Contractor shall
1710                   offer Commercial Customers Slim Jim® style Compostables storage bins for use
1711                   by the Customer inside their Premises to store Compostables prior to placement
1712                   of the materials in the outdoor Containers to be serviced by Contractor. Up to
1713                   three (3) internal Compostable bins shall be provided at no cost to the Customer.
1714                   Contractor shall promote the availability of the internal Compostable bins during
1715                   the site visits with the Owner or property manager, and through other Commercial
1716                   public education efforts required by Exhibit C. Contractor shall purchase a
1717                   sufficient number of Compostable bins to maintain an inventory of bins so that
1718                   upon a Customer’s request, Contractor can deliver the Compostables bin(s) to the
1719                   Commercial Premises within two (2) weeks of request. Each Compostables bin
1720                   shall be accompanied by a flyer describing the Compostables program
1721                   requirements.
1722
1723                   The Compostable containers shall have approximately 23 gallons of capacity and
1724                   be constructed of durable plastic with a minimum recycled content of 30 percent.
1725                   Contractor must submit the Compostables bin order (including material and
1726                   design specifications, colors, and identification marks) to City for City’s written
1727                   approval prior to submitting the order to the manufacturer.
1728
1729           5.4.4       Christmas Tree Pickup

1730           A.      Single-Family Customers. Contractor shall offer to each Single-Family
1731                   Customer Curbside Collection of Christmas trees during the first and second
1732                   weeks of the year beginning on the Monday following New Year’s Day. In the
1733                   event New Year’s Day is a Monday, Christmas tree Collection shall commence
1734                   on Tuesday following New Year’s Day and continue for five (5) Business Days.
1735                   Christmas trees shall be Collected on the Customer’s regular Collection day
1736                   during the designated week. Customer notification requirements are specified in
1737                   the public education plan, Exhibit C.
1738
1739           B.      Drop Box for Drop-Off Collection. Contractor shall supply a 30 cubic yard
1740                   Drop Box, to be placed at a location determined by the City, to provide a drop-off
1741                   location for Christmas trees. The Contractor shall provide signage for the drop-
1742                   off location that assists Persons in readily identifying the site as the Christmas
1743                   tree drop-off location and signage on the Drop Box or adjacent to it with
1744                   instructions for placing the trees in the Drop Box and the types of items that are
1745                   prohibited (e.g., flocked trees, trees with decorations, etc.). The Contractor shall
1746                   service the Christmas tree Drop Box on a regular basis and keep the surrounding
1747                   area free of any debris. Contractor shall deliver the Drop Box to a site specified
1748                   by the City on the first Business Day after Christmas Day and shall service the
1749                   Drop Box until the third (3rd) Monday of January.
1750



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1751           C.      Cooperation with Boy Scouts of America. Contractor shall work cooperatively
1752                   with the Boy Scouts of America organization or other organizations identified by
1753                   the City to Collect and Process Christmas trees dropped off at a location selected
1754                   by these organizations in the City.
1755
1756           D.      Diversion Requirement. Christmas trees shall be Recycled, Composted or used
1757                   as mulch or a slope stabilization material, in a manner to count as Diversion in
1758                   accordance with the Act with the exception of trees that are flocked, contain
1759                   tinsel, or other decorations, which shall be Collected and Disposed by Contractor.


1760   5.5     City Facilities and Events Collection

1761           5.5.1       City Facilities, Park District, and City-Sponsored Events

1762           Contractor shall provide Solid Waste, Recyclable Materials, and Compostable Materials
1763           Collection, Processing and Disposal services for City Facilities, Livermore Area
1764           Recreation and Parks District locations, and City Sponsored Events described in
1765           Exhibits A and B. Contractor shall provide and maintain Collection Containers with the
1766           exception of public litter and public Recycling cans, which shall be provided and
1767           maintained by the City. Contractor may integrate Collection of City facilities with
1768           other Collection services provided that Contractor estimates Tonnage Collected from
1769           City facilities separately from other Customers.
1770
1771           In addition to the regularly scheduled Collection services identified in Exhibits A and
1772           B, the Contractor shall also provide periodic removal and Recycling of toilets that the
1773           City’s Water Resources Division collects in association with the Boy Scouts. The
1774           toilets are stored in a 20-cubic yard Drop Box at the City of Livermore, Water
1775           Resources Division site at 101 W. Jack London Boulevard in Livermore. Contractor
1776           will be contacted periodically, approximately six times per year, to remove and Recycle
1777           the toilets.
1778
1779           Contractor shall work cooperatively with the City to annually survey City Facilities to
1780           determine appropriateness of service and shall adjust Container size, frequency of
1781           service and type of service if appropriate. In addition, Contractor shall assist the City in
1782           developing a strategy for increasing Recycling activities and Recycling participation
1783           levels of visitors and Commercial Customers in the City’s downtown area.
1784
1785           The services required by this Section shall be provided at no charge to the City, but the
1786           cost of providing them shall be an allowable expense that may be recovered through
1787           Contractor’s Compensation.
1788
1789           5.5.2       Large Events and Venues

1790           Contractor shall offer Solid Waste, Recyclable Materials, and Compostable Materials
1791           Collection services for all events (e.g., fairs, festivals, etc.) and venues in the City. In
1792           addition, Contractor shall offer Food Scraps Collection to the events and venues and


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1793           provide the service to Customers at City-approved Rates on the Rate Schedule in
1794           Exhibit H.
1795
1796           Contractor shall provide the Solid Waste and Recyclable Collection services to all
1797           events (listed in Exhibit B) each calendar year for no additional compensation.
1798           Contractor shall provide Collection to additional special events at City-approved Rates
1799           on the Rate Schedule in Exhibit H.
1800
1801           Large venues requiring regularly scheduled Collection services shall be serviced as
1802           Commercial Customers and offered the full range of Commercial Collection services
1803           described in this Agreement at City-approved Rates on the Rate Schedule in Exhibit H.
1804
1805           For large events and venues with periodic Collection needs, Contractor shall provide
1806           Solid Waste, Recyclable Materials, and Compostable Materials as requested by the
1807           event or venue organizer. Services provided by Contractor shall include delivery of
1808           Collection Containers prior to the Commencement of the event and removal of
1809           Collection Containers at the end of the event. Contractor shall provide staff during
1810           events to: (i) maintain and empty Collection Containers, (ii) provide outreach, (iii)
1811           coordinate with event organizers and other event participants and volunteers, and (iv)
1812           collect data for reporting purposes. Contractor shall arrange for Cascadia Consulting
1813           Group, as a Subcontractor, to develop a large event and venue recycling protocol and
1814           guidelines within six months of Commencement.
1815
1816           Contractor shall make available Carts, Bins and Drop Boxes. The number and size of
1817           Containers shall be sufficient to allow convenient Collection of Solid Waste, Organics,
1818           and Recyclable Materials for event participants. If the event coordinator determines
1819           that additional Containers are necessary, Contractor shall promptly deliver the
1820           requested number of additional Containers. Carts provided shall be equipped with
1821           special lids with drop in slots that minimize contamination of Recyclable and
1822           Compostable Materials. Contractor shall arrange the Container delivery and pick-up
1823           schedule with the event organizer.
1824
1825           All Solid Waste, Recyclable Materials, and Compostable Materials Collected from
1826           events and venues shall be delivered to the Approved Disposal Site, Approved
1827           Recyclables Processing Site, or Approved Composting Site as appropriate.
1828
1829           Contractor shall work cooperatively with events and venues that are classified as Large
1830           Events and Large Venues by AB 2176 to assist such events and venues in complying
1831           with requirements of AB 2176. As of the Effective Date of this Agreement, the City
1832           estimates that one event, the Wine County Festival, may qualify as a Large Event and
1833           one or two venues may qualify as Large Venues. Contractor shall assist Large Events
1834           and Venues organizers in meeting AB 2176 requirements by offering Recyclables
1835           Collection services at no cost to the Customer.




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1836   5.6     Provision of Service to Schools

1837           If a public or private school requests Solid Waste, Recyclable Materials, or
1838           Compostable Collection services, Contractor shall provide such services in accordance
1839           with the Collection requirements pursuant to Sections 5.2.6, 5.3.3, and 5.4.3. Contractor
1840           shall charge the school at Rates that do not exceed the City-approved Rates for
1841           Commercial Customers on the Rate Schedule in Exhibit H. At the Contractor’s option,
1842           the Contractor may require that the school enter into a service agreement with a
1843           commitment to subscribe to Collection service for a minimum of six (6) months.
1844
1845           The Contractor is not required to pay the Agreement Fee and other City fees specified
1846           in Article 7 on revenues received from public schools.


1847   5.7     Construction and Demolition Debris Collection

1848           To the extent Contractor Collects Construction and Demolition Debris from projects
1849           that are not classified as “Regulated Projects” pursuant to Section 15.28.030 of the
1850           City’s Municipal Code, the Contractor shall Collect and Divert 50% of all Construction
1851           and Demolition Debris.


1852   5.8     Abandoned Solid Waste Collection

1853           5.8.1       General

1854           Contractor shall Collect Solid Waste and Bulky Items abandoned by Generators in the
1855           City. Contractor shall dispatch a truck to Collect abandoned materials at locations in
1856           the City identified by Contractor or at locations identified by the City. In instances
1857           when the Contractor has received verbal or written request from the City to Collect
1858           abandoned waste at a specific location, Contractor shall Collect abandoned waste from
1859           such location within forty-eight (48) hours of receiving the verbal or written request
1860           unless special circumstances warrant a longer period, in which case Contractor shall
1861           notify the City of such circumstances and the need for additional time to Collect
1862           materials within twenty-four (24) hours of the City’s verbal or written notice to Collect
1863           abandoned waste. Contractor shall be responsible for Collection, Transportation, and
1864           Disposal of such material and City shall pay for actual, documented Disposal Costs.
1865           Contractor shall record the date, time, location, and description of material Collected
1866           including estimated volume of such material; location where such material was
1867           Disposed; and cost of Disposal. Copies of receipts from the Approved Disposal Site for
1868           Disposal of abandoned Solid Waste shall be made available by Contractor upon request
1869           by the City. Tonnage of material Collected shall be separately recorded and reported to
1870           the City on a quarterly basis in accordance with reporting requirements stated in Section
1871           6.3.3.
1872



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1873           5.8.2       Shopping Carts

1874           Unless otherwise prohibited by law, the Contractor’s obligations under this Section
1875           shall include the Collection and Recycling or Disposal of all unmarked shopping carts
1876           from City limits. Such requirement shall specifically exclude removal of shopping carts
1877           that (i) have a sign or other form of marking permanently affixed to it if that identifies
1878           the owner of the cart or the retailer, or lists a valid telephone number or address for
1879           returning the shopping carts to the owner or retailer of such shopping cart; or (ii) are
1880           otherwise covered by Section 22435.7 of the California Business and Professional Code
1881           or Section 8.18 of the City’s Municipal Code.


1882   5.9     Community Garage Sale Event

1883           Contractor shall work with the City to plan an annual community garage sale event to
1884           encourage residents to sell their unused or unwanted items for reuse by others.
1885           Contractor shall advertise and promote the community garage sale event in the local
1886           newspaper as well as develop and make available garage sale “kits” that shall be
1887           distributed along with advertisement(s) in the local newspaper. Contractor shall also
1888           post information on its website in the form of a banner with a link connecting to the
1889           City’s site, and will coach customer service representatives in the correct response to
1890           frequently asked questions. The date of the community garage sale event and all
1891           advertisements or public announcements related to such event shall be approved by the
1892           City. Contractor shall not be required to Collect or Dispose of any unsold or unwanted
1893           items for the community garage sale event. During the week following the community
1894           garage sale event, Contractor shall remove and Recycle garage sale signs posted by
1895           Residents in public right-of-ways (e.g., on sign posts, in roadway medians, etc.).
1896
1897           In accordance with Section 6.3.2.H, Contractor shall provide a report to the City
1898           following the garage sale event summarizing their outreach efforts, number of garage
1899           sale kits distributed, and estimated number of garage sales held (including location of
1900           households, if possible).


1901   5.10    E-Waste and U-Waste Collection

1902           5.10.1      On-Call E-Waste Collection

1903           In addition to Collection of E-Waste during on-call clean-up events, Contractor shall
1904           offer Single-Family, Multi-Family, and Commercial Customers Collection of E-Waste
1905           on an on-call basis upon Customer request at City-approved Rates on the Rate Schedule
1906           in Exhibit H.
1907
1908           5.10.2      Single-Family Cell Phone and Household Battery Collection

1909           Contractor shall provide weekly Collection of cell phones and household batteries from
1910           Single-Family Customers on the same day as Solid Waste, Recyclables, and


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1911           Compostable Materials are Collected from the Customers. The Collection shall be
1912           performed Curbside or at designated location for townhomes, condominiums, or
1913           attached Single-Family Premises and disabled and paying back yard/side yard
1914           Customers.
1915
1916           Contractor shall instruct Customers to place cell phones and household batteries in
1917           plastic disposable resealable zipper bags on top of the Recycling Cart. When the
1918           driver of a Recycling Collection vehicle sees a cell phone/battery set-out, the driver will
1919           dismount the vehicle at that stop and retrieve the item(s), placing them in a dedicated
1920           container in a rack mounted on the truck body. Drivers will further utilize the
1921           opportunity this creates to perform a visual check of the Recycling Cart contents.
1922           Should contamination be observed, the driver will complete a Corrective Action Notice.
1923           If contamination is minor, the driver will Collect the materials and the notice will be left
1924           as a courtesy to help educate the resident. If contamination is unacceptably high, the
1925           notice will be used to communicate the reasons for non-Collection and steps to take to
1926           properly prepare the set-out. Contractor shall arrange for Recycling of cell phones and
1927           batteries.


1928   5.11    Hazardous Waste

1929           If Contractor determines that material placed in any Container for Collection is
1930           Hazardous Waste, Designated Waste, or other material that may not legally be Disposed
1931           of at the Disposal Site or handled at the Processing Site or presents a hazard to
1932           Contractor's employees, the Contractor shall have the right to refuse to accept such
1933           material. However, Contractor shall accept: used motor oil placed by Generator for
1934           Collection as a Recyclable Material; E-Waste accepted on an on-call basis or through
1935           Single-Family on-call clean-up service. The Generator will be contacted by the
1936           Contractor and requested to arrange proper Disposal. If the Generator cannot be
1937           reached immediately, the Contractor shall, prior to leaving the Premises, leave a tag at
1938           least 2 inches by 6 inches which lists the phone number for the Alameda County
1939           Household Hazardous Waste program, indicating the reason for refusing to Collect the
1940           material. If the material could possibly result in imminent danger to people or property,
1941           the Contractor shall notify the Livermore/Pleasanton Fire Department using the 911
1942           emergency number as soon as possible.
1943
1944           The Contractor shall notify the City of any Hazardous Waste left at any Premises for
1945           fourteen (14) or more calendar days.
1946
1947           If Hazardous Waste is delivered to the Disposal Site, Processing Site, Composting Site,
1948           or Transfer Station by Contractor before its presence is detected and the Generator
1949           cannot be identified or fails to remove the material after being requested to do so, the
1950           Contractor shall arrange for its proper Disposal. The Contractor shall make a good faith
1951           effort to recover the cost of Disposal from the Generator, and the cost of this effort, as
1952           well as the cost of Disposal shall be chargeable to the Generator. The Contractor shall
1953           be entitled to include the costs incurred under this Section as an operating expense for


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1954           purposes of compensation under Article 8 and shall include all sums recovered by it
1955           from Generators as "Other Income.”


1956   5.12    Transportation of Collected Materials

1957           Contractor shall Transport all Solid Waste, Recyclable Materials, and Compostable
1958           Materials Collected under this Agreement to the Disposal, Processing, or Composting
1959           Sites approved by the City. Contractor shall maintain accurate records of the quantities
1960           of Solid Waste, Recyclable Materials and Compostable Materials Transported to the
1961           Disposal, Processing, or Composting Sites and will cooperate with City in any audits or
1962           investigations of such quantities.
1963
1964           Contractor plans to secure property in Livermore, California by October 1, 2009 and
1965           establish a Transfer operation on or before June 30, 2010 where Recyclable Materials
1966           and Compostable Materials will be unloaded from Collection vehicles and loaded into
1967           large-capacity vehicles. After loading the materials into large-capacity vehicles,
1968           Contractor shall Transport materials to the Approved Recyclables Processing Site and
1969           Approved Composting Site. Contractor shall be responsible for all site acquisition or
1970           leasing costs, site permitting and development costs, construction costs, and other costs
1971           related to the development and operation of the Transfer operations as further described
1972           in Section 5.21. If the Contractor is unable to use said facility then the Contractor shall
1973           be responsible for making other Transportation arrangements. In such event, Contractor
1974           shall not be compensated for any additional costs. If the Contractor plans to change its
1975           transfer method, Contractor shall obtain written approval from the City prior to making
1976           the change.
1977
1978           Any and all Transfer, Processing, and other material handling activities performed in
1979           the City shall occur in an enclosed facility and areas used for parking, vehicle access,
1980           and operations shall be paved. A site in the City used for material handling activities of
1981           any kind will be subject to the City’s strict development permit review process.


1982   5.13    Disposal and Processing of Collected Materials

1983           5.13.1      Solid Waste Disposal

1984           Contractor shall Transport to and Dispose of all Solid Waste Collected under this
1985           Agreement at the Approved Disposal Site, which is selected and approved by City.
1986           Unless and until City otherwise approves, the Approved Disposal Site shall be the
1987           Vasco Road Landfill in unincorporated Alameda County, California. All costs
1988           associated with Transporting and Disposing Solid Waste shall be paid by Contractor
1989           and may be recovered through Contractor’s Compensation in accordance with Article 8.
1990
1991           If the Contractor expects, during the Term of this Agreement, to be prevented from
1992           delivering Solid Waste to the Approved Disposal Site, it shall notify the City
1993           immediately. Contractor shall then identify alternative Disposal Sites and evaluate

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1994           each. Such evaluation shall include the Disposal fee, Transportation cost, permit status,
1995           any known permit enforcement proceedings and any other criteria used by the
1996           Contractor in recommending alternative Disposal sites. Contractor shall then present its
1997           recommendation and evaluation of alternatives described above to City. City shall
1998           either approve the Contractor's recommended Disposal Site or identify an alternative
1999           Disposal Site. Contractor will thereafter Dispose of Solid Waste at the alternative site
2000           approved by the City.
2001
2002           Contractor shall cooperate with the operator of the Approved Disposal Site and comply
2003           with the operator’s requirements such as how and where to unload Collection vehicles,
2004           respecting operations and construction of new facilities, cooperating with the operator’s
2005           Hazardous Waste Exclusion Program, following scale house weighing and recording
2006           keeping processes, and other guidelines established for facility users. Contractor shall
2007           plan its Collection routes to be compatible with the Approved Disposal Site’s operating
2008           hours, which shall be, at a minimum, Monday through Friday from 6:00 a.m. to 5:00
2009           p.m. and Saturday from 6:00 a.m. to 4:30 p.m.
2010
2011           5.13.2      Recyclables Processing

2012           A.    General. Contractor agrees to Transport and deliver all Source Separated
2013                 Recyclable Materials it Collects in the City to the Approved Recyclables
2014                 Processing Site. Contractor shall pay all costs associated with transfer (if
2015                 applicable), Transporting, Processing, Composting and marketing Recyclable
2016                 Materials. Residue from the Recyclable Materials shall be Disposed of by
2017                 Contractor or the Processing Site Subcontractor at a Disposal Site selected by
2018                 Contractor or the Processing Site Subcontractor. Any and all Transfer,
2019                 Processing, and other material handling activities performed in the City shall
2020                 occur in an enclosed facility and areas used for parking, vehicle access, and
2021                 operations shall be paved. A site in the City used for material handling activities
2022                 of any kind will be subject to the City’s strict development permit review process.
2023
2024           B.    Processing Arrangements. Contractor shall secure sufficient capacity to Process
2025                 Recyclable Materials Collected under this Agreement and shall cause the
2026                 Approved Recyclables Processing Site to Process and market the Recyclable
2027                 Materials. Contractor shall provide the City, upon request, with:
2028
2029                 1.      Documentation demonstrating the availability of such capacity; and,
2030                 2.      Name, address and owner/operator of any transfer station used to deliver
2031                         materials to such site.
2032
2033                 Contractor shall use reasonable business efforts to guarantee a residue level of
2034                 twenty percent (20%) or less, where the residue level shall be calculated as 100
2035                 multiplied by the monthly Tonnage of Processing residue requiring Disposal
2036                 divided by the total monthly Tonnage of Recyclable Materials Collected (e.g., the
2037                 incoming Tons received by the Approved Recyclables Processing Site). If the
2038                 residue level exceeds twenty percent (20%), the Contractor shall pay for all
2039                 additional Disposal costs and shall share in revenues from Recyclable Materials


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2040                 in accordance with Section 3.A.5 of Exhibit I and Section 3.A.3.e of Exhibit J as
2041                 if the residue level equals twenty percent (20%).
2042
2043                 Contractor shall keep all existing permits and approvals necessary for use of the
2044                 Recyclable Materials Processing Site(s) in full regulatory compliance or confirm
2045                 that the owner or operator of such facility does so. Contractor shall, upon request,
2046                 provide copies of permits and/or notices of violation of permits to the City.
2047
2048                 Contractor may change its selection of the Approved Recyclables Processing Site
2049                 following City’s written approval, but Contractor shall not be compensated for
2050                 any increased Transportation and Processing costs. Contractor will bear any
2051                 increased Transportation and Processing costs associated with a Contractor-
2052                 initiated change in the Approved Recyclables Processing Site. In such case,
2053                 Contractor shall guarantee the same net Processing Cost specified in Exhibit G or
2054                 shall increase the net Processing Costs (if the amount is a net revenue) associated
2055                 with the use of Processing site(s) different from the Approved Recyclables
2056                 Processing Site. If Contractor elects to use a Recyclables Processing Site(s) that
2057                 is different than the Approved Recyclables Processing Site, it shall request written
2058                 approval from the City sixty (60) calendar days prior to use of the site and obtain
2059                 the City’s written approval no later than ten (10) calendar days prior to use of the
2060                 site.
2061
2062                 Below is information about the Approved Recyclables Processing Site selected by
2063                 the Contractor:
2064
2065                      Facility Name: Aladdin Materials Recovery Facility
2066                      Owner: Alameda County Industries, LLC
2067                      Operator: Alameda County Industries, LLC
2068                      Address: 610 Aladdin Avenue, San Leandro, California 94577
2069                      Contact Person and telephone number: Operations Manager, 510/357-7282
2070                      Method of allocating Recyclable Materials Diverted by materials type and
2071                       Processing residue to Contractor and the City. The allocation method shall be
2072                       the same as that used to report Solid Waste Disposal to the State, and shall be
2073                       certified by an authorized personnel or officer of that Approved Recyclables
2074                       Processing Site owner or operator. Contractor shall Collect Recyclable
2075                       Materials generated in the City in Collection Vehicles separately from other
2076                       Recyclable Materials generated outside the City and shall weigh each vehicle
2077                       so that the Tonnage of Recyclable Materials can be documented on a per-load
2078                       basis with supporting documentation (such as a certified weight ticket or tag).
2079                       Periodically, the Contractor shall review its marketing records to calculate the
2080                       volume of Recyclable Materials received at the Approved Recyclable
2081                       Materials Processing Site and marketed to determine the percentage of various
2082                       Recyclable Materials (e.g., glass, newspaper, cardboard, PET, HDPE,
2083                       aluminum, etc.) and the City’s residue level. The percentages determined from
2084                       the review of marketing records shall be used to allocate the total Tonnage
2085                       Collected in the City into various categories of Recyclable Materials and


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2086                       residue. Contractor shall report Tonnage and residue level in accordance with
2087                       monthly and quarterly reporting requirements in Sections 6.3.2.B and 6.3.3.B.
2088
2089                 If Contractor is unable to use the Approved Recyclables Processing Site due to an
2090                 emergency or sudden unforeseen closure of the Approved Recyclables Processing
2091                 Site, Contractor may use an alternative Processing site provided that the
2092                 Contractor provides verbal and written notice to the City and receives written
2093                 approval from the City at least twenty-four (24) hours prior to the use of an
2094                 alternative Processing site. The Contractor’s written notice shall include a
2095                 description of the reasons the Approved Recyclables Processing Site is not
2096                 feasible and the period of time Contractor proposes to use the alternative
2097                 Processing site. Contractor shall not be compensated for any increased
2098                 Transportation and Processing costs and shall guarantee the net Processing Cost
2099                 specified in Exhibit G or shall increase the net Processing Costs (if net revenues)
2100                 associated with the use of Processing site(s) different from the Approved
2101                 Recyclables Processing Site, with the exception that if the ability to use the
2102                 Approved Recyclables Processing Site occurs due to one or more conditions
2103                 defined in Section 8.4.A as an eligible item for special rate review such as a
2104                 Change in Law, flood, earthquake, other acts of nature, war, civil insurrection,
2105                 riots, acts of any government agency (including judicial action), or other similar
2106                 catastrophic events that are beyond the control of and not the fault of the
2107                 Contractor. In such case, the special rate review process may be initiated to assess
2108                 the need to use an alternative Processing site and/or cost impacts. If the
2109                 alternative Processing Site is located in the City, the material handling and
2110                 Processing operations shall occur in an enclosed facility and areas used for
2111                 parking, vehicle access, and operations shall be paved.
2112
2113           C.    Transport. The Contractor is responsible for Transporting Collected Recyclable
2114                 Materials to the Approved Recyclables Processing Site. Contractor plans to
2115                 Transfer materials (at the Contractor’s Livermore yard) from Collection vehicles
2116                 into large-capacity transfer vehicles and then haul the materials to the Approved
2117                 Recyclables Processing Site. The Contractor plans to back-haul the materials in
2118                 transfer vehicles that will also haul Solid Waste generated in San Leandro from
2119                 the Approved Recyclables Processing Site’s related transfer operations to the
2120                 Vasco Road Landfill. If the Contractor plans to change its Transport method,
2121                 Contractor shall obtain written approval from the City prior to making the change;
2122                 pay all costs; and shall not be reimbursed for any additional costs. The City shall
2123                 approve the Transport method, and the duration the Transport method is expected
2124                 to remain in use.
2125
2126           D.    Marketing. The Contractor shall be responsible for marketing Recyclable
2127                 Materials that Contractor Collects in the City, including materials Collected
2128                 during on-call clean-up and on-call Bulky Item/E-Waste pick-up events.
2129                 Contractor shall be compensated by the end users/market place for such
2130                 Recyclable Materials at no less than fair market value. If the revenues from the
2131                 sale of Recyclable Materials exceed $73 per Ton (based on the Tons Collected by
2132                 Contractor and Processed at the Approved Recyclables Processing Site net


       City of Livermore                                                          Franchise Agreement
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2133                 hauling costs), Contractor and City shall share equally in the revenues received
2134                 above $73 per Ton. Such revenue sharing shall be reflected as a reduction to the
2135                 Contractor’s Total Calculated Costs, which are the basis for determining the
2136                 annual Rate adjustment, in accordance with procedures described in Exhibits I
2137                 and J.
2138
2139                 Contractor shall prepare and maintain a City-approved marketing plan for all
2140                 Recyclable Materials Collected in the City. The plan, which shall be approved by
2141                 City’s Public Works Manager or his/her designee, shall be in place on or before
2142                 the Commencement Date of this Agreement. The marketing plan shall fully
2143                 describe the Contractor’s marketing methods and approach, targeted primary and
2144                 contingent markets, pricing policy and assumed salvage value for each Collected
2145                 type of Recyclable Material products, and contingency plans when market
2146                 conditions are severe.
2147
2148                 Upon request, Contractor shall provide proof to the City that all Recyclable
2149                 Materials Contractor Collects in the City are marketed for Recycling or reuse in
2150                 such a manner that materials shall be considered as Diverted in accordance with
2151                 the State regulations established by the Act. All residual material from the
2152                 Processing activities that is not marketed for use shall be accounted for as
2153                 Disposal Tonnage at a permitted Disposal Site. No Recyclable Materials shall be
2154                 transported to a domestic or foreign location if Solid Waste Disposal of such
2155                 material is its intended use.
2156
2157                 Annually, the Contractor shall update its marketing plan and submit it to the City
2158                 for approval pursuant to Section 6.4.9. Contractor shall provide City with a list of
2159                 broker/buyers it has used during the preceding twelve (12) months, if requested
2160                 by City. If Contractor becomes aware that a broker or buyer has illegally handled
2161                 or Disposed of material generated by the City or elsewhere, Contractor shall
2162                 immediately inform the City and terminate its contract or working relationship
2163                 with such party.
2164
2165           E.    Reporting. Contractor shall provide reports on Recyclables Processing as
2166                 required by Sections 6.3.2, 6.3.3, and 6.4.
2167
2168           5.13.3      Compostable Materials Processing

2169           A.    General. Contractor shall Transport all Compostable Materials Collected in the
2170                 City to the Approved Composting Site. Contractor shall pay all costs associated
2171                 with transfer (if applicable), Transporting, Processing, Composting and marketing
2172                 Compostable Materials. All Compostable Materials shall be processed for use as
2173                 Compost, mulch, or soil amendment and none shall be Disposed or used as
2174                 Alternative Landfill Cover. Residue from the Compostable Materials Processing
2175                 and Composting activities shall be Disposed of by Contractor or the Composting
2176                 Site Subcontractor at a Disposal Site selected by the Contractor or the
2177                 Composting Site Subcontractor.
2178


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2179                 Any and all Transfer, Processing, Composting, and other material handling
2180                 activities performed in the City shall occur in an enclosed facility and areas used
2181                 for parking, vehicle access, and operations shall be paved. A site in the City used
2182                 for material handling activities of any kind will be subject to the City’s strict
2183                 development permit review process.
2184
2185           B.    Processing Arrangements. Contractor shall secure sufficient capacity to Process
2186                 and Compost Compostable Materials Collected under this Agreement and
2187                 Contractor will cause the Approved Composting Site to Process, Compost, and
2188                 market Compostable Materials. Promptly upon direction from City, Contractor
2189                 shall provide City with documentation satisfactory to City demonstrating
2190                 availability of Compostable Materials Processing and Composting capacity at the
2191                 Approved Composting Site and any Transfer Station used to deliver materials to
2192                 such site.
2193
2194                 Contractor shall keep all existing permits and approvals necessary for use of the
2195                 Approved Composting Site in full regulatory compliance or confirm that the
2196                 owner or operator of such facility does so. Contractor shall, upon request,
2197                 provide copies of permits and/or notices of violation of permits to the City.
2198
2199                 Contractor may change its selection of the Approved Composting Site following
2200                 City’s written approval, but the Contractor’s Compensation and Rates will not be
2201                 adjusted, and Contractor will bear any increased Transportation and Processing
2202                 costs associated with a Contractor-initiated change in the Approved Composting
2203                 Site. In such case, Contractor shall guarantee the same net Composting Cost
2204                 specified in Exhibit G or shall reduce the net Composting Costs associated with
2205                 the use of a Composting Site(s) different from the Approved Composting Site. If
2206                 Contractor elects to use a Composting Site(s) that is different than the Approved
2207                 Composting Site, it shall request written approval from the City Manager or
2208                 his/her designee sixty (60) calendar days prior to use of the site and obtain the
2209                 City’s written approval no later than ten (10) calendar days prior to use of the site.
2210
2211                 Below is information about the Approved Composting Site selected by the
2212                 Contractor:
2213
2214                      Facility Name: Grover Landscape Services, Inc.
2215                      Owner: Grover Landscape Services, Inc.
2216                      Operator: Grover Landscape Services, Inc.
2217                      Address: 2826 Kiernan Avenue, Modesto, California 95356
2218                      Contact Person and telephone number: Adam Grover, 209/545-4401
2219                      Method of allocating Processing and Composting residue to Contractor and
2220                       the City: The allocation method shall be the same method used to report Solid
2221                       Waste Disposal to the State, and shall be certified by an authorized personnel
2222                       or officer of that Approved Composting Site owner or operator. Contractor
2223                       shall Collect Compostable Materials generated in the City in Collection
2224                       Vehicles separately from other Compostable Materials generated outside the
2225                       City and shall weigh each vehicle so that the Tonnage of Compostable

       City of Livermore                                                            Franchise Agreement
                                                                                                Page 53
2226                       Materials can be documented on a per-load basis with supporting
2227                       documentation (such as a certified weight ticket or tag). Periodically, the
2228                       Contractor shall review Tonnage records and marketing records to determine
2229                       the City’s residue level and the average percentage of products marketed from
2230                       the Compost Product (e.g., compost, mulch, soil amendment, etc.). The
2231                       percentages determined from the review of Tonnage and marketing records
2232                       shall be used to allocate the total Tonnage Collected in the City into various
2233                       categories of Compostable Materials and residue. Contractor shall report
2234                       Tonnage and residue level in accordance with monthly and quarterly reporting
2235                       requirements in Sections 6.3.2.C and 6.3.3.C.

2236            If Contractor is unable to use the Approved Composting Site due to an emergency or
2237            sudden unforeseen closure of the Approved Composting Site, Contractor may use an
2238            alternative Processing site provided that the Contractor provides verbal and written
2239            notice to the City and receives written approval from the City at least twenty-four (24)
2240            hours prior to the use of said alternative Processing site. The Contractor’s written
2241            notice shall include a description of the reasons the Approved Composting Site is not
2242            feasible and the period of time Contractor proposes to use the alternative Composting
2243            Site. Contractor shall not be compensated for any increased Transportation and
2244            Processing costs associated with the use of Composting Site(s) different from the
2245            Approved Composting Site, with the exception that if the inability to use the
2246            Approved Composting Site occurs due to one or more conditions defined in Section
2247            8.4.A as an eligible item for special rate review such as a Change in Law, flood,
2248            earthquake, other acts of nature, war, civil insurrection, riots, acts of any government
2249            agency (including judicial action), or other similar catastrophic events that are beyond
2250            the control of and not the fault of the Contractor. In such case, the special rate review
2251            process may be initiated to assess the need to use an alternative Composting site
2252            and/or cost impacts.
2253
2254           C.    Processing Standards. The following Processing standards shall be met by the
2255                 Approved Composting Site:
2256
2257                 1. Pre-processing activities shall include, at a minimum, the inspection for and
2258                    removal of Hazardous Waste and removal of plastic bags which Commercial
2259                    Customers used to store Compostables.
2260                 2. Composting shall be accomplished by the use of recognized Composting
2261                    methods, which have been demonstrated to be able to consistently produce
2262                    stable, mature Compost Product that is suitable for general purpose use,
2263                    similar to the U.S. Composting Council's Class 1 rating.
2264                 3. Post-composting processing activities shall include screening to remove
2265                    plastics and other contaminants from the Compost Product.
2266                 4. The Approved Composting Site owner and/or operator shall cooperate with
2267                    the City or its agent(s), including StopWaste.Org (also known as the Alameda
2268                    County Waste Management Authority and Alameda Source Reduction and
2269                    Recycling Board), if the City wants to collect data, perform field work, and/or
2270                    evaluate and monitor program results related to Compostable Materials
2271                    Collected in the City by the Contractor.


       City of Livermore                                                           Franchise Agreement
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2272                 5. The Compostable Materials Processing and Composting activities shall
2273                    maintain an average monthly residue level less than five percent (5%) where
2274                    the residue level shall be calculated as 100 multiplied by the monthly Tonnage
2275                    of Processing or Composting residue requiring Disposal divided by the total
2276                    monthly Tonnage of Compostable Materials Collected.
2277
2278           D.    Transport.      The Contractor is responsible for Transporting Collected
2279                 Compostable Materials to the Approved Composting Processing Site. Contractor
2280                 plans to Transfer materials (at the Contractor’s Livermore yard) from Collection
2281                 vehicles into large-capacity transfer vehicles and then haul the materials to the
2282                 Approved Composting Processing Site. If the Contractor plans to change its
2283                 Transport method, Contractor shall obtain written approval from the City prior to
2284                 making the change; pay all costs; and shall not be reimbursed for any additional
2285                 costs. The City shall approve the Transport method and the duration the
2286                 Transport method is expected to be in use.
2287
2288           E.    Marketing.      Contractor shall market the resulting Compost Product to
2289                 agricultural growers or other interested parties. Materials shall be used for
2290                 Compost, mulch, or soil amendment and none shall be deposited for Disposal or
2291                 used as Alternative Landfill Cover.
2292
2293                 Contractor shall prepare and maintain a City-approved marketing plan for all
2294                 Compostable Materials Collected in the City. The plan, which shall be approved
2295                 by City’s Public Works Manager or his/her designee, shall be in place on or
2296                 before the Commencement Date of this Agreement. The marketing plan shall
2297                 fully describe the Contractor’s marketing methods and approach, targeted primary
2298                 and contingent markets, pricing policy and assumed value for each type of
2299                 Compost Product, and contingency plans when market conditions are severe.
2300
2301                 Upon request, Contractor shall provide proof to the City that all Compost
2302                 Materials Contractor Collects in the City are marketed for use as Compost
2303                 Products in such a manner that materials shall be considered as Diverted in
2304                 accordance with the State regulations established by the Act. All residual
2305                 material from the Processing activities that is not marketed for use shall be
2306                 accounted for as Disposal Tonnage at a permitted Disposal Site. No Compostable
2307                 Materials shall be Transported to a domestic or foreign location if Solid Waste
2308                 Disposal of such material is its intended use.
2309
2310                 Annually, the Contractor shall update its marketing plan and submit it to the City
2311                 for approval pursuant to Section 6.4.9. Contractor shall provide City with a list of
2312                 broker/buyers it has used during the preceding twelve (12) months, if requested
2313                 by City. If Contractor becomes aware that a broker or buyer has illegally handled
2314                 or Disposed of material generated by the City or elsewhere, Contractor shall
2315                 immediately inform the City and terminate its contract or working relationship
2316                 with such party.
2317



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2318           F.    Product Use by City. Contractor shall offer Compost Products to the City at a
2319                 price that is limited to the cost incurred by the Contractor to purchase and
2320                 Transport of such material to the City. If the City elects to purchase and back-
2321                 haul finished Compost Products, the Contractor will collaborate with the City to
2322                 organize and schedule up to two (2) neighborhood compost “give-aways” (such as
2323                 spring garden festivals) during the year.
2324
2325           G.    Reporting.     Contractor shall provide reports on Compostable Materials
2326                 Processing as required by Sections 6.3.2, 6.3.3, and 6.4.
2327
2328           5.13.4      Insurance, Indemnifications and Performance Standards

2329           If Contractor uses a Recyclables Processing Site Subcontractor or Composting
2330           Subcontractor, or enters into any contract, agreement or understanding with a party for
2331           services related to Recyclable Materials Processing and marketing, Organic Materials
2332           Processing, Composting, and marketing, or Transfer Station services, Contractor shall
2333           provide that terms and conditions (such as insurance requirements, indemnifications,
2334           and Processing, Composting, marketing performance, and residue guarantees) of any
2335           contract, agreement, or other understanding Contractor has with such party can be
2336           enforced by the City as an additional insured or third party beneficiary thereof in the
2337           same manner provided in Article 9 and in a manner reasonably satisfactory to City.
2338
2339           If Contractor or an Affiliate owns or operates the Approved Recyclable Materials
2340           Processing Site or Approved Composting Site, Contractor shall include City as an
2341           additional insured on liability policies and defend and indemnify City in a manner
2342           satisfactory to City, and provide that any materials recovery and marketing performance
2343           standards or guarantees made to any other facility customers are made to City as well,
2344           including obligations such as recovered product and Compost Product quality
2345           guarantees and limits on the residue level.
2346
2347           Contractor shall demonstrate compliance with the requirements of this paragraph on or
2348           before the Commencement Date of this Agreement.
2349
2350           5.13.5      Compliance with Applicable Law

2351           Contractor (or its Subcontractor(s)) warrants throughout the Term that the Approved
2352           Recyclables Processing Site and Approved Composting Site selected by Contractor are
2353           respectively authorized and permitted to accept Recyclable Materials and Compostable
2354           Materials in accordance with Applicable Law and is in full compliance with Applicable
2355           Law. Contractor shall: (1) verify compliance for the Approved Recyclables Processing
2356           Site and Approved Composting Site (that neither it nor its Affiliates own) by contacting
2357           the local enforcement agency and other regulatory agencies having jurisdiction over
2358           that Approved Recyclables Processing Site and Approved Composting Site at least
2359           quarterly; and (2) upon City direction, shall promptly provide City with copies of the
2360           Approved Recyclables Processing Site and Approved Composting Site’s permits or
2361           notice of violations to City.
2362


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2363           5.13.6      Compliance with Facility Rules

2364           Contractor (or its Subcontractor(s)) shall observe and comply with all regulations in
2365           effect at the Approved Recyclables Processing Site and Approved Composting Site and
2366           cooperate with the operators thereof with respect to delivery of Recyclable Materials
2367           and Compostable Materials, including directions to unload Collection vehicles in
2368           designated areas, accommodating operations and maintenance activities, and complying
2369           with Hazardous Waste exclusion programs.
2370
2371           5.13.7      Transportation and Processing Costs

2372           All costs associated with Transporting to and Processing Recyclable Materials and
2373           Compostable Materials at the Approved Recyclables Processing Site and Approved
2374           Composting Site shall be paid by Contractor.
2375
2376           5.13.8      Weighing and Record Requirements

2377           Contractor shall ensure that all Solid Waste, Recyclable Materials, and Compostable
2378           Materials are weighed upon delivery to the Approved Disposal Site, Approved
2379           Recyclables Processing Site, and Approved Composting Site, and all weight and related
2380           delivery information (including date, time, material type, route and truck number)
2381           (“Delivery Data”) is recorded. Contractor shall provide City the name of any driver of
2382           any identified delivery promptly upon request by City. If vehicle receiving and
2383           unloading operations are recorded on video cameras at any Approved Disposal,
2384           Processing, or Composting Site, Contractor shall make, or shall use its best efforts to
2385           arrange with the facility operator if other than Contractor to make, those videos
2386           available for City review during the facility’s operating hours, upon request of the City.
2387
2388           5.13.9      Disposal of Recyclable and Compostable Materials Prohibited

2389           With the exception of Processing and Composting residue which shall not exceed five
2390           percent (5%) of the Compostable Materials and twenty percent (20%) for Recyclable
2391           Materials (based on a monthly average), Recyclable and Compostable Materials may
2392           not be Disposed of in lieu of Recycling or Composting the material, without the
2393           expressed written approval of the City. If for reasons beyond its reasonable control,
2394           Contractor (or its Subcontractor(s)) believes that it cannot Divert the Recyclable or
2395           Compostable Materials from Disposal, then it shall prepare a written request for
2396           approval to Dispose of such material. Such request shall contain the basis for
2397           Contractor’s belief (including, but not limited to, supporting documentation), describe
2398           the Contractor's efforts to arrange for the Diversion from Disposal of such material, the
2399           period required for such Disposal, the incremental net cost increases or net cost savings
2400           (giving account to the value from the sale of the Recyclable or Compostable Materials)
2401           resulting from such Disposal, and any additional information supporting the
2402           Contractor's request. In addition, the request shall describe the Contractor’s proposed
2403           interim plans for implementation while the City is evaluating its request. If the City
2404           objects to the interim plans, the City shall provide written notice to the Contractor and
2405           request an alternative arrangement. The City shall consider the Contractor’s request
2406           and inform Contractor in writing of its decision within thirty (30) calendar days. If the

       City of Livermore                                                          Franchise Agreement
                                                                                              Page 57
2407           City approves such request, any difference in the net cost of such Disposal compared to
2408           Diversion shall be adjustment in accordance with Section 8.4. Depending on the nature
2409           of the Contractor’s request, the City may extend the thirty (30) calendar-day period, at
2410           its own discretion, to provide more time for evaluation of the request and negotiation of
2411           an acceptable arrangement with the Contractor.
2412
2413           In the event the accumulation of such non-Diverted Recyclable or Compostable
2414           Material is causing, or is likely to cause, a nuisance or health hazard, in the sole
2415           discretion of the Public Works Director, he or she may authorize, in writing, the
2416           Disposal of such material on an interim basis pending City Council’s final approval (or
2417           disapproval) of such Disposal. In such case, the Public Works Director’s authorization
2418           may occur prior to the 30 to 60 day review period noted above.
2419
2420           5.13.10 Alternative Facility Designation by City

2421           The City reserves the right to direct Contractor to transport and deliver: (i) all
2422           Compostable Materials Collected pursuant to this Agreement to a Composting Site
2423           other than the Composting Site selected by the Contractor, or (ii) all Recyclable
2424           Materials Collected pursuant to this Agreement to a Recyclables Processing Site other
2425           than the Processing Site selected by the Contractor. If the City exercises its right under
2426           this provision and specifies use of a Composting or Recyclables Processing Site that is
2427           different from the Contractor-selected Approved Recyclables Processing Site or
2428           Approved Composting Site, the City shall provide written notice to Contractor one (1)
2429           year before the date the Contractor shall commence use of the City-designated site, and
2430           shall in no case require use of the City-selected Processing or Composting Site prior to
2431           July 1, 2013. Furthermore, the Contractor’s Compensation and Rates will be adjusted
2432           for increases or decreases in Transportation, Processing, and/or Composting costs, if
2433           any, in accordance with Sections 4.3 and 8.5.


2434   5.14    Collection Standards

2435           5.14.1      Care of Private Property

2436           Contractor shall use due care when handling Solid Waste, Recyclable Materials and
2437           Compostable Materials Containers. Containers shall not be thrown from trucks,
2438           roughly handled, damaged or broken. Containers shall be returned to the Collection
2439           point upright, with lids properly secured. The City may levy Liquidated Damages for
2440           repeat occurrences in accordance with Section 11.6 of this Agreement.
2441
2442           Contractor shall ensure that its employees close all gates opened in making Collections,
2443           unless otherwise directed by the Generator, and avoid crossing landscaped areas and
2444           climbing or jumping over hedges and fences for Collection service provided to the
2445           elderly and/or disabled receiving backyard/side yard services and any Customers paying
2446           for backyard/side yard services.
2447



       City of Livermore                                                          Franchise Agreement
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2448           City shall refer Complaints about damage to private property to Contractor. Contractor
2449           shall repair all damage to private property caused by its employees or their vehicles.
2450
2451           5.14.2      Litter Abatement

2452           A.    Minimization of Spills. Contractor shall use due care to prevent Solid Waste,
2453                 Recyclable Materials, and Compostable Materials from being spilled, scattered,
2454                 wind blown during the Collection, Transportation, Processing, or other material
2455                 handling activity. If any Solid Waste, Recyclable Materials, or Compostable
2456                 Materials are spilled during Collection, Transportation, Processing, or other
2457                 material handling activity, the Contractor shall promptly clean up all
2458                 Unacceptable Spillage. This clean-up requirement shall apply to cleaning up drift
2459                 (e.g., windblown materials) along roads near the facilities used by the Contractor
2460                 resulting from Contractor’s Transport, Transfer, or other material handling
2461                 activities.
2462
2463                 Contractor shall not transfer loads from one vehicle to another on any public
2464                 street, unless it is necessary to do so because of mechanical failure; hot load
2465                 (combustion of material in the truck); accidental damage to a vehicle or unless
2466                 approved by the City.
2467
2468           B.    Cleanup. During Collection, the Contractor shall clean up Litter (whether or not
2469                 Contractor has caused the Litter) and Unacceptable Spills in the immediate
2470                 vicinity of any Solid Waste, Recyclable Materials or Compostable Materials
2471                 storage area (including the areas where Collection Bins, Drop Boxes are , and
2472                 Compactors delivered for Collection). Each Collection vehicle shall carry a
2473                 broom and shovel at all times for the purpose of cleanup of Litter and
2474                 Unacceptable Spills. Cat-litter or similar absorbent material shall be used for
2475                 liquid spill cleanups. The Contractor shall discuss instances of repeated spillage
2476                 not caused by it directly with the Generator responsible and will report such
2477                 instances to City. In situations where the Contractor has already attempted to do
2478                 so without success, the City will attempt to rectify such situations with the
2479                 Generator.
2480
2481           C.    Covering of Loads. Contractor shall cover all open Drop Boxes at pick-up
2482                 location prior to Transport to the Disposal Site or Processing Site.
2483
2484           5.14.3      Hours of Collection

2485           If the Collection point of a Commercial Premises is two hundred (200) feet or less from
2486           Single-Family Premises and Multi-Family Premises, Contractor may only Collect Solid
2487           Waste, Recyclable Materials and Compostable Materials from the Commercial
2488           Premises between the hours of 6:00 a.m. and 6:00 p.m. If the Collection point of a
2489           Commercial Premises is more than two hundred (200) feet from Single-Family
2490           Premises and Multi-Family Premises, Contractor may only Collect Solid Waste,
2491           Recyclable Materials and Compostable Materials from the Commercial Premises
2492           between the hours of 4:00 a.m. and 6:00 p.m. The distance from the Collection point to
2493           the Residential Premises shall be measured from the location of the Collection

       City of Livermore                                                         Franchise Agreement
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2494           Container on the Commercial Premises to the adjacent Residential Premises’ lot line.
2495           Contractor will promptly resolve any Complaints of noise during the morning or
2496           evening hours of the day to the satisfaction of the City. For the purposes of this
2497           Section, schools shall be considered Commercial premises.
2498
2499           5.14.4      Noise

2500           All Collection operations shall be conducted as quietly as possible and shall conform to
2501           applicable Federal, State, County and City noise level regulations. Additional
2502           requirements are specified in Section 5.15.2.
2503
2504           5.14.5      Holiday Collection Schedule

2505           During the week of a Holiday, Collection may not occur on the Holiday but shall occur
2506           on the day following the Holiday, except when the Holiday falls on a Saturday or
2507           Sunday Collection shall occur on the first Monday following the Holiday. The
2508           Contractor shall provide at least a two (2) week advance notice to all Customers
2509           regarding the Holiday week schedule changes.
2510
2511           5.14.6      Permanent Changes in Service Days

2512           The regularly scheduled day for Single-Family Collection may be changed with prior
2513           written approval from the City. Once approved, Single-Family Customers shall be
2514           notified four (4) weeks prior to any schedule changes to Solid Waste, Recyclable
2515           Materials, and Compostable Materials services. Contractor shall not permit any
2516           Customer to go more than seven (7) calendar days without service during a Collection
2517           schedule change.
2518
2519           5.14.7      Load Inspection Program

2520           Contractor shall develop and implement a program to detect and discover Hazardous
2521           Waste and shall not knowingly accept such material at the time of Collection. The load
2522           inspection program shall include the following steps: Collection vehicle drivers shall
2523           receive regular training (at least four (4) times annually) to identify Hazardous Wastes
2524           and methods for handling these materials once spotted. All Contractor facilities shall
2525           have waste exclusion programs in place to screen for and eliminate Hazardous Waste
2526           from the materials received. Random inspections of loads Collected and visual
2527           screening shall be periodically conducted by the Contractor at its facilities or at the
2528           Approved Disposal Site, Approved Recyclables Processing Site, or Approved
2529           Composting Site when materials are unloaded from the Collection vehicle. Records of
2530           load checks and copies of the employee training records shall be maintained at
2531           Contractor’s facilities. When Hazardous Waste is found, it shall be returned to the
2532           Generator if possible. If the Hazardous Waste cannot be returned to the Generator,
2533           Contractor shall place Hazardous Waste in an authorized storage location and arrange
2534           for proper disposal of such material at its own costs. (See also Sections 5.11 and
2535           5.18.3.)
2536


       City of Livermore                                                         Franchise Agreement
                                                                                             Page 60
2537           5.14.8      Overages (Excess Materials)

2538           Contractor shall direct its employees not to Collect Solid Waste, Recyclable Materials,
2539           or Compostable Materials beyond each Customer’s subscription level of service unless
2540           the business office of Contractor has granted prior authorization to make such
2541           Collection or the overages of Compostable Materials are placed in a kraft bag as
2542           described in Section 5.4.1.D and Customer is billed at the City-approved Rate on the
2543           Rate Schedule in Exhibit H.
2544
2545           5.14.9      Non-Collection Notices

2546           Contractor shall instruct all Customers and Generators as to any necessary preparation
2547           of materials and the proper placement of Containers for Collection; and shall notify
2548           Customers who fail to follow these instructions by attaching a 2 inch by 6 inch tag to
2549           the Container with a description of the reason for non-Collection. In cases of extreme
2550           or repeated failure to comply with the instructions, Contractor shall notify the City of
2551           the Customer’s repeated failures.


2552   5.15    Vehicles

2553           5.15.1      General

2554           On the Commencement Date, Contractor shall provide a fleet of new Collection
2555           vehicles sufficient in number and capacity to efficiently perform the work required by
2556           the Agreement in strict accordance with its terms. The Collection vehicles shall operate
2557           on compressed natural gas (CNG). Contractor shall have available sufficient back-up
2558           vehicles for each type of Collection vehicle used (e.g., side loader, front loader, roll-off,
2559           etc.) to respond to Complaints and emergencies. The new vehicles shall be used to
2560           serve the City for a minimum of ten (10) years commencing on the Commencement
2561           Date of this Agreement; and, Contractor shall depreciate the vehicles over a ten-year
2562           (10-year) period.
2563
2564           Contractor shall service Single-Family Customers with automated side-loading
2565           Collection vehicle operated by a one-person crew (e.g., driver only). Contractor’s fleet
2566           of Collection vehicles shall include one or more vehicles capable of Collecting from
2567           “hard-to-service” Customers. Hard-to-service Customers are Customers whose Carts
2568           may not be accessible by traditional, large-capacity Collection vehicles for a variety of
2569           reasons, such as, but not limited to: newer Residential streets that are narrower than
2570           standard Residential streets; limited space available for Customers to place Carts three
2571           feet apart; mature trees (or trees that mature during the future) limit vehicle clearances;
2572           and many large Multi-Family Premises are built at the end of cul-de-sacs with cars
2573           parked along both sides of the street forcing the Collection vehicle driver to exit the
2574           vehicle and wheel Carts to the Collection vehicle. Contractor shall anticipate that future
2575           Residential development in the City may result in more areas with narrow streets that
2576           may be difficult to serve. Additionally, future development could be denser and could
2577           increase mixed use (e.g., apartments or condominiums above or adjacent to businesses)
2578           and/or multi-story buildings (e.g., up to four (4) or five (5) stories).

       City of Livermore                                                            Franchise Agreement
                                                                                                Page 61
2579
2580           In addition to hard-to-service Residential Customers, some Commercial Customers in
2581           the downtown area are difficult to service. As more development occurs in the
2582           downtown area, more Collection difficulties may arise. The Contractor shall be
2583           responsible for providing and operating the appropriate types of Collection vehicles to
2584           effectively service any and all hard-to-service Customers as of the Commencement
2585           Date and over the Term of the Agreement.
2586
2587           Contractor shall be solely responsible for identifying hard-to-service Customers and
2588           selecting Collection vehicle(s) or other Collection means that are capable of efficiently
2589           servicing them. Contractor plans to service “hard-to-service” Customers with rear-
2590           loading Collection vehicle(s) operated by two-person crews (e.g., driver and helper)
2591           with the exception of Customers that can be safely served with Contractor’s side-
2592           loading or front-loading Collection vehicles.
2593
2594           Contractor shall Collect Solid Waste, Recyclable Materials, and Compostable Materials
2595           generated in the City in Collection Vehicles separately from each other and from other
2596           materials generated outside the City. Contractor shall weigh each vehicle at the
2597           Transfer, Processing, or Disposal Site so that the Tonnage of materials can be
2598           documented on a per-load basis by material type with supporting documentation (such
2599           as a certified weight ticket or tag).
2600
2601           5.15.2      Specifications

2602           All vehicles used by Contractor in providing Collection services shall be registered with
2603           the California Department of Motor Vehicles. All such vehicles shall have watertight
2604           bodies designed to prevent leakage, spillage or overflow. All such vehicles shall
2605           comply with U.S. Environmental Protection Agency (EPA) noise emission regulations
2606           and other applicable noise control regulations. Any vehicle that does not comply with
2607           noise level requirements stated in Section 5.14.4 shall be prohibited from performing
2608           services under this Agreement.
2609
2610           As required by law, Contractor shall comply with State and federal regulations
2611           including, but not limited to: (i) the California Air Resources Board Heavy Duty
2612           Engine Standards, contained in CCR Title 13, Section 2020 et seq; and, (ii) the Federal
2613           Environmental Protection Agency’s Highway Diesel Fuel Sulfur regulations (Section
2614           209(b) of the Clean Air Act, as amended, 42 U.S.C. 7543(b)). In addition, Contractor
2615           shall plan to comply with all State and federal regulations related to emissions control
2616           using engines, vehicles, and/or control technologies that meet or exceed the 2010 or
2617           later model year vehicle and engine requirements. Contractor shall comply with these
2618           requirements by using new Collection vehicles on the Commencement Date that meet
2619           or exceed the requirements. If Contractor needs to convert, retrofit, or replace its
2620           Collection vehicles to be in full compliance with local, State and federal clean air
2621           requirements (including compliance with requirements for 2010 or later model year
2622           vehicles) in effect on the Commencement Date of the Agreement, the costs for such
2623           changes shall be the sole responsibility of the Contractor and shall not be reimbursed
2624           through a change in Contractor’s Compensation or Rates. To the extent that clean air
2625           requirements become more or less stringent after the Commencement Date of the

       City of Livermore                                                         Franchise Agreement
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2626           Agreement, Contractor Compensation or Rates shall be adjusted upward or downward
2627           to reflect reasonable and actual costs of modification subject to prior approval from the
2628           City.
2629
2630           5.15.3      Vehicle Identification

2631           Contractor's name, local telephone number, and a unique vehicle identification number
2632           for each vehicle shall be prominently displayed on all vehicles, in letters and numbers
2633           no less than six (6) inches high. Contractor shall not place the City's logo on its
2634           vehicles. Contractor shall not use vehicles identified for use in Livermore in any other
2635           jurisdiction without prior approval from the City.
2636
2637           5.15.4      Inventory

2638           Contractor shall furnish sufficient equipment to provide all service required under this
2639           Agreement. Contractor shall furnish the City a written inventory of all vehicles,
2640           including Collection vehicles, used in providing service, and shall update the inventory
2641           report annually. The inventory shall list all vehicles by manufacturer, ID number, date
2642           of acquisition, type, capacity and decibel rating.
2643
2644           5.15.5      Cleaning and Maintenance

2645           A.    General. Contractor shall maintain all of its properties, facilities, and equipment
2646                 used in providing service under this Agreement in a safe, neat, clean, and
2647                 operable condition at all times.
2648
2649           B.    Cleaning. Vehicles used in the Collection of Solid Waste, Recyclable Materials,
2650                 and Compostable Materials shall be thoroughly washed and thoroughly steam
2651                 cleaned on a minimum of one (1) time per week or more frequently if necessary
2652                 so as to present a clean appearance of the exterior and interior compartment of the
2653                 vehicle. City may inspect vehicles at any time to determine compliance with
2654                 sanitation requirements. Contractor shall make vehicles available to the Alameda
2655                 County Health Department for inspection at any frequency it requests.
2656
2657           C.    Maintenance. Contractor shall inspect each vehicle daily to ensure that all
2658                 equipment is operating properly. Vehicles that are not operating properly shall be
2659                 taken out of service until they are repaired and operate properly. Contractor shall
2660                 perform all scheduled maintenance functions in accordance with the
2661                 manufacturer's specifications and schedule. Contractor shall keep accurate
2662                 records of all vehicle maintenance, recorded according to date and mileage, and
2663                 shall make such records available to the City upon request to the extent necessary
2664                 to perform the inspections described in Sections 6.7 and 6.8.
2665
2666                 All vehicles shall be painted on a regular schedule to maintain a clean,
2667                 professional, new-like appearance. At any time during the Term, the City may
2668                 require painting of any vehicle which does not present a satisfactory appearance
2669                 and such vehicle shall be painted within thirty (30) calendar days of the City’s
2670                 written request. All graffiti shall be removed within forty-eight (48) hours if such

       City of Livermore                                                          Franchise Agreement
                                                                                              Page 63
2671                 graffiti includes any written or pictorial obscenities and otherwise shall be
2672                 removed within five (5) Business Days.
2673
2674           D.    Repairs. Contractor shall repair, or arrange for the repair of, all of its vehicles
2675                 and equipment for which repairs are needed because of accident, breakdown or
2676                 any other cause so as to maintain all equipment in a neat, clean, safe and operable
2677                 condition. If an item of repair is covered by a warranty, Contractor shall obtain
2678                 warranty performance. Contractor shall maintain accurate records of repair,
2679                 which shall include the date/mileage, nature of repair and the signature of a
2680                 maintenance supervisor that the repair has been properly performed. Repairs
2681                 shall include repair of cosmetic dents and damage to vehicles so as to maintain a
2682                 neat appearance of the equipment.
2683
2684           E.    Storage. Contractor shall arrange to store all vehicles and other equipment in
2685                 safe and secure location(s) in accordance with City's applicable zoning
2686                 regulations.
2687
2688           5.15.6      Operation

2689           Vehicles shall be operated in compliance with the California Vehicle Code, and all
2690           applicable safety and local ordinances. Contractor shall not load vehicles in excess of
2691           the manufacturer's recommendations or limitations imposed by State or local weight
2692           restrictions on vehicles. The City shall be notified no later than seventy-two (72) hours
2693           after an inspection is performed by the California Highway Patrol under the California
2694           Motor Vehicle Code Section 34501.12 (Maintenance Facility or Terminal Inspection).
2695           All records of periodic inspections of vehicles to comply with California Motor Vehicle
2696           Code Section 34505.5 shall be available for inspection by City.
2697
2698           To the extent practical, Contractor shall use re-refined motor oil for on-going operations
2699           of its Collection vehicles.
2700
2701           5.15.7      GPS Equipment and Monitoring

2702           Contractor shall equip each Collection vehicle with Global Positioning System (GPS)
2703           equipment that allows for tracking the vehicle’s activities. The City requires the GPS
2704           tracking system to provide vehicle position and history and the location of each
2705           Collection. Data updates shall be real time or updated every fifteen (15) minutes.
2706           Contractor shall provide the City access to GPS data through a minimum of two (2)
2707           City computers.
2708
2709           The backbone of the Contractor’s solution to Collection performance management and
2710           Customer service systems is one developed and supported by PC Scale Tower™
2711           (Tower). Tower employs Microsoft Certified Systems Engineers, Microsoft Certified
2712           Database Administrators, Microsoft Certified Application Developers, Microsoft
2713           Certified Professionals + Internet, Microsoft Certified Professionals, and Citrix
2714           Certified Professionals. The software is designed by waste industry professionals. A
2715           Tower demonstration CD was included with Contractor’s Proposal as Exhibit 2.1. It is


       City of Livermore                                                          Franchise Agreement
                                                                                              Page 64
2716           important to note that Tower software can be customized based on Contractor
2717           specifications and City preferences.
2718
2719           All daily operations functions at Contractor and its affiliates are managed through
2720           Tower. Primary Tower functions include maintenance of customer records and billing
2721           information; route management (including generation of driver route sheets); customer,
2722           route data, and route mapping system (using a geocoding software in conjunction with
2723           Tower), each of which are described in Contractor’s Proposal in Section 2M. One copy
2724           of Contractor’s internal Tower resource manual was included with Contractor’s
2725           Proposal under separate cover. These directives will be refined for use by Contractor for
2726           its operations in the City. The resource manual includes information on how most
2727           Customer service functions are completed in the system, such as missed collections,
2728           container exchanges, supervisor notification, reminders, and so forth. One excellent and
2729           unique feature that is not documented in the manual, as of the date of this printing, is
2730           the ability to attach any sort of file to a Customer’s account, such a photo or letter from
2731           the Customer.
2732
2733           5.15.8      Compressed Natural Gas

2734           The Collection vehicles shall operate on compressed natural gas (CNG). Prior to the
2735           Effective Date of this Agreement, the Contractor applied for grant monies from the Bay
2736           Area Air Quality Management Board to cover some or all of the capital costs of the
2737           CNG vehicle engines. In the event the grant monies are received by the Contractor,
2738           Parties have agreed that Contractor shall retain grant monies and such grant monies (if
2739           any) shall be considered an offset to revenue shortfalls if Gross Rate Revenues are less
2740           than anticipated (applied any time over the Term of the Agreement).


2741   5.16    Containers

2742           5.16.1      General

2743           Contractor shall provide Customers with Collection Containers as requested by the
2744           Customer to meet its desired service level. All Collection Containers provided shall be
2745           new Containers as of the Commencement Date. Contractor shall purchase Containers
2746           with a useful life of ten (10) years or more and shall depreciate the Containers over a
2747           ten-year (10-year) period.       New Container purchases shall comply with the
2748           requirements of Section 5.16.5.
2749
2750           If a Customer requests a different Container size, Contractor shall provide Customer
2751           with Container(s) in the requested size within seven (7) Business Days or pay
2752           Liquidated Damages pursuant to Section 11.6.
2753
2754           Contractor shall make Compactors available to Customers for purchase or lease and
2755           shall allow Customers to purchase or lease Compactor’s through an outside vendor.
2756



       City of Livermore                                                           Franchise Agreement
                                                                                               Page 65
2757           5.16.2      Intentionally Deleted

2758
2759           5.16.3      Replacement of Containers

2760           Contractor shall be responsible for replacing Containers when Contractor determines
2761           the Container is no longer suitable for service; or when the City or Customer requests
2762           replacement of Customer’s Container that does not properly function, leaks, is
2763           damaged, or is otherwise not fit for service. Contractor shall be responsible for
2764           acquiring the replacement Containers as well as maintaining an inventory of Containers
2765           at a level that allows for the Contractor to provide Customers with different size
2766           Containers within seven (7) calendar days of request.
2767
2768           5.16.4      City Ownership of Containers at end of Term

2769           Upon expiration or early termination of Agreement, all Carts, Bins, Drop Boxes, and
2770           Compactors (for permanent Customers) purchased and put into service at Customers’
2771           Premises during the Term of the Agreement shall become property of the City at no cost
2772           to the City if such Containers are fully depreciated. All Carts, Bins, Drop Boxes, and
2773           Compactors (for permanent Customers) purchased and put into service at Customers’
2774           Premises during the Term of the Agreement that have not been fully depreciated shall
2775           be available to the City, at the City’s option, at a cost reflecting the net book value.
2776
2777           At its sole discretion, the City may elect not to exercise its rights with regards to this
2778           Section and, in such case; the Containers shall remain the property of the Contractor
2779           upon the expiration date of this Agreement or date of its earlier termination of this
2780           Agreement. In such case, Contractor shall be responsible for outstanding depreciation
2781           and for removing all Containers in service from premises within fourteen (14) Business
2782           Days of the expiration date or early termination date of this Agreement.
2783
2784           5.16.5      New Container Standards

2785           Contractor shall provide Containers for storage and Collection of Solid Waste,
2786           Recyclable Materials, and Compostable Materials which shall be designed and
2787           constructed to be watertight and prevent the leakage of liquids.
2788
2789           Contractor shall purchase Carts, kitchen pails, and containers for Generator’s internal
2790           Compostables and Recyclable storage that contain a minimum of 30% post-consumer
2791           recycled plastic content. All Carts, kitchen pails, and internal Compostable and
2792           Recycling storage containers shall be 100% recyclable.
2793
2794           All new Carts shall be manufactured by injection or rotational molding methods and
2795           shall meet the Cart design, color, and performance requirements provided in Exhibit E.
2796           Contractor shall obtain the City’s written approval of Cart specifications before
2797           acquisition. Carts provided to Customers shall have a useful life of ten (10) or more
2798           years or more as evidenced by a manufacturer’s warranty or other documentation
2799           acceptable to the City.
2800

       City of Livermore                                                          Franchise Agreement
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2801           All Containers with a capacity of one (1) cubic yard or more shall meet applicable
2802           federal regulations for Bin safety and be covered with attached lids. All Bins, Drop
2803           Boxes, and Compactors shall be painted the Contractor's standard color and shall
2804           prominently display the name and telephone number of the Contractor.
2805
2806           Contractor shall differentiate Solid Waste Containers, Recyclable Materials Containers,
2807           and Compostable Materials Containers from each other by: (i) providing Containers of
2808           different colors, (ii) Containers with different colored lids; or (iii) adhering clearly-
2809           visible labels to each Container identifying the allowable material type. The third
2810           option is acceptable for existing Carts but is not acceptable for Carts purchased during
2811           the Term as any new Carts shall have bodies and/or lids in colors that differentiate the
2812           different material types to be Collected and such plans shall be approved by the City.
2813
2814           As described in Section 5.4.1.C, the kitchen pail shall be made of rigid plastic, and have
2815           a capacity of 1.5 to 2.5 gallons, a wire or plastic handle, and a lid. Contractor must
2816           submit kitchen pail order (including material and design specifications, colors and
2817           identification marks) to City for City’s written approval prior to submitting the order to
2818           the manufacturer.
2819
2820           As described in Section 5.4.4.H, the Slim Jim® style Compostables storage bins for use
2821           by the Customer inside their Premises shall have approximately 23 gallons of capacity
2822           and be constructed of rigid plastic. Contractor must submit the storage bin order
2823           (including material and design specifications, colors and identification marks) to City
2824           for City’s written approval prior to submitting the order to the manufacturer.
2825
2826           5.16.6      Container Sizes

2827           Below is a table that summarizes the Container size specifications. In the event of
2828           conflicts between descriptions in this Section 5.16.6 and Sections 5.2, 5.3, 5.4, and 5.5,
2829           the requirements in Sections 5.2, 5.3, 5.4, and 5.5 shall govern.
2830
2831
2832
2833
2834                                    {Remainder of page intentionally blank}




       City of Livermore                                                          Franchise Agreement
                                                                                              Page 67
2835
              Service Type          Single-Family             Multi-Family Customers           Commercial Customers
                                       Customers
              Solid Waste    20-, 32-, 64-, or 96-gallon     64- or 96-gallon Carts (or     32-, 64-, or 96-gallon Carts
                             Carts (or similar sizes          similar sizes approved by       (or similar sizes approved
                             approved by the City)            the City)                       by the City)
                                                             1 to 7 cubic yard Bins         1 to 7 cubic yard Bins
                                                             10 to 50 cubic yard Drop       10 to 50 cubic yard Drop
                                                              Boxes and Compactors            Boxes and Compactors
              Recyclable      96-gallon Carts (or           Same as above                  Same as above
              Materials        similar size approved by      Minimum 96-gallon Cart         Minimum 96-gallon Cart for
                               the City) shall be the         for universal Recycling         universal Recycling service
                               standard service               service pursuant to Section     pursuant to Section 5.3.3.B
                              32- and 64-gallon Carts        5.3.3.B                        Containers for indoor use
                               (or similar sizes approved    Tote bags in accordance         pursuant to Section 5.3.3.H
                               by the City) to be             with Section 5.3.3.G
                               provided upon request as
                               an alternative to the
                               standard 96-gallon Cart
                              Additional Cart to be
                               provide upon Customer
                               request at City-approved
                               Rate
              Compostable     96-gallon Carts (or          Same as Solid Waste              Same as Solid Waste
              Materials        similar size approved by     Containers                        Containers
                               the City) shall be the                                        Minimum 96-gallon Cart for
                               standard service                                               universal Compostables
                              32- and 64-gallon Carts                                        service pursuant to Section
                               (or similar sizes approved                                     5.4.3.B
                               by the City) to be                                            Containers for indoor use
                               provided upon request as                                       pursuant to Section 5.4.3.H
                               an alternative to the
                               standard 96-gallon Cart
                              Additional Cart to be
                               provide upon Customer
                               request at City-approved
                               Rate
                              1.5- to 2.5-gallon kitchen
                               pail upon Customer
                               request
              Large Events   Not applicable                 Not applicable                  Same as listed above for
                                                                                            Commercial Customers
2836           * 32-gallon Carts are Carts with 32 gallons of capacity in the Cart body and 3 gallons in the domed lid
2837           for a total capacity of 35 gallons.




       City of Livermore                                                                    Franchise Agreement
                                                                                                        Page 68
2838
2839           5.16.6      Container Labeling

2840           On each Container, Contractor shall label with paint, adhesive label, or white, hot-
2841           stamped lettering, the type of materials (e.g., Solid Waste, Recyclable Materials,
2842           cardboard, mixed paper, Yard Trimmings, Food Scraps and Other Targeted
2843           Compostables, mixed Construction and Demolition Debris, wood waste, metal, etc.) to
2844           be placed in the Container for Collection. The labeling shall be positioned on each
2845           Container so it is visible to the Customer at all times.
2846
2847           All Containers shall prominently display the Contractor’s name and phone number in
2848           paint or on an adhesive label.
2849
2850           5.16.7      Cleaning, Painting, Maintenance

2851           Contractor shall steam clean and repaint all Containers as needed (other than Carts) so
2852           as to present a clean appearance. Contractor shall offer steam cleaning service (or clean
2853           Container exchange) to Customers requesting such service, and shall charge Customers
2854           for such cleaning (or Container exchange) in accordance with City-approved Rates on
2855           the Rate Schedule in Exhibit H.
2856
2857           Contractor shall remove graffiti from Containers within forty-eight (48) hours of
2858           identification by Contractor or notice by City or Customer if such graffiti includes any
2859           written or pictorial obscenities and otherwise within five (5) Business Days.
2860
2861           All Containers shall be maintained in a functional condition. At the City’s request,
2862           Contractor shall provide City with a list of Containers and the date each Container was
2863           painted and maintained.
2864
2865           5.16.8      Repair and Replacement

2866           Contractor shall repair or replace all Containers which have broken wheels, hinges, or
2867           other nonfunctioning parts or cracks or holes. Contractor shall repair or replace all
2868           Containers damaged by Collection operations within a one (1) week period. If the
2869           repair or replacement cannot be completed within in a week, the Customer shall be
2870           notified by Contractor and a larger Container shall be made available until the proper
2871           Container can be replaced.


2872   5.17    Public Education and Technical Assistance

2873           5.17.1      General

2874           Contractor shall educate Residential and Commercial Customers on the following: (i)
2875           the benefit of source reduction, reuse, Recycling, and Composting and related program
2876           opportunities; (ii) proper handling of E-Waste, U-Waste, and Hazardous Waste; (iii)
2877           specific programs offered by the Contractor; and (iv) Rates for Collection services.
2878           The public education program shall include distribution of public education materials at

       City of Livermore                                                         Franchise Agreement
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2879           the commencement of the Agreement, when Collection services are changed during the
2880           Term of the Agreement, and when new Collection services are implemented during the
2881           Term of the Agreement. In addition, the public education program shall include on-
2882           going education activities throughout the Term of the Agreement. Educational media
2883           shall include, but not be limited to, newsletters, bill inserts, flyers, door hangers,
2884           notification tags, newspaper advertisements, direct contact with Customers or Owners
2885           and Occupants of Premises, and website information including how-to-videos.
2886
2887           Detailed requirements of the public education program as specified by the City are
2888           described in Exhibit C. The Contractor’s public education and outreach plan presented
2889           in Contractor’s Proposal is presented in Exhibit C-1.
2890
2891           During the two (2) months prior to and two (2) months following the Commencement
2892           Date, the Contractor shall employ three full-time personnel to properly educate
2893           Customers about all service changes. During the Term of the Agreement, the
2894           Contractor shall employ one full-time public education manager and one full-time
2895           recycling coordinator/public education coordinator dedicated to implementing its public
2896           education program. These positions may be filled by Contractor’s personnel or
2897           personnel from Cascadia Consulting Group, Inc., a Subcontractor. The personnel
2898           described in this Section shall not be responsible for providing Recycling and Food
2899           Scraps technical assistance to Multi-Family and Commercial Premises described in
2900           Sections 5.17.5 and 5.17.6, as the permanent technical assistance staff shall be
2901           separately identified.
2902
2903           In the event Contractor fails to perform some or all of the requirements of the public
2904           education plan described in this Section and in Exhibits C and C-1, the Contractor shall
2905           pay the City Liquidated Damages as described in Section 11.6.
2906
2907           5.17.2      Annual Public Education Plan

2908           As part of the Contractor’s third quarterly report (required by Section 6.3.3 of this
2909           Agreement) for the Rate Period, Contractor shall submit a plan outlining its public
2910           education efforts for the coming Rate Period. The plan shall list each public education
2911           piece (e.g., newsletters, bill inserts, flyers, newspaper advertisements, etc.) to be
2912           prepared, the purpose of the piece, the key subject(s) to be covered, and the anticipated
2913           date of issuance. In addition, the plan shall list all events the Contractor plans to attend
2914           and the public education it intends to provide at such event (e.g., exhibit at Earth Day
2915           event, presentation at Chamber of Commerce meetings, etc.). The City shall review and
2916           approve the plan.
2917
2918           5.17.3      Public Education Content and Production Requirements

2919           Prior to preparing public education materials, Contractor shall discuss with the City its
2920           general approach to preparing the materials and shall determine if the City has any City-
2921           specific guidelines to be followed and if the City wants the Contractor to work with
2922           templates prepared by StopWaste.Org (also known as the Alameda County Waste
2923           Management Authority and Alameda County Source Reduction and Recycling Board)
2924           or others.

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2925
2926           The public education materials shall emphasize use of visual/graphic images as much as
2927           is practical. Furthermore, the materials shall include a clear listing of program “Dos”
2928           and “Don’ts” using visual images as much as is practical. For example, the “Dos” shall
2929           list the types of materials the Customer may place in its Recyclable Materials or
2930           Compostable Materials Containers and the “Don’ts” should list prohibited types of
2931           materials and Hazardous Waste.
2932
2933           All public education materials shall be printed on paper containing the highest levels of
2934           recycled content material reasonably practical with a minimum requirement of thirty
2935           percent (30%) post consumer content based on federal standards. Contractor shall
2936           provide Customers the option of requesting paperless communications with the
2937           Contractor including electronic delivery of public education and outreach materials.
2938
2939           To address the multi-lingual diversity of the City, public education materials shall use
2940           visual images and English descriptions supplemented with text on the bottom of the
2941           public education document in different languages directing the non-English speaking
2942           Customers to telephone a Contractor-provided hotline for help in their native language.
2943           Upon City request, Contractor shall prepare up to four (4) public education documents
2944           annually in one or more languages and distribute the materials to Single-Family, Multi-
2945           Family, and Commercial Customers as specified by the City. Contractor shall arrange
2946           for review of the multi-lingual materials by a third party to verify the accuracy and
2947           appropriateness of the translations.
2948
2949           Prior to distribution of any public education materials, Contractor shall provide the City
2950           with a copy of the public education materials for the City’s review and approval.
2951
2952           5.17.4      Signage

2953           Contractor shall be responsible for preparing, distributing, and posting signage at
2954           Commercial and Multi-Family Premises that promote Recyclable Materials and
2955           Compostable Materials Collection services, describe the program requirements, and
2956           identify allowable and non-allowable types of materials for Collection. At a minimum,
2957           these signs shall be posted in the Container areas. Upon request of the Customer,
2958           Contractor shall provide signage and Container labeling in Spanish. Within fourteen
2959           (14) calendar days of a Customer’s request, Contractor shall provide extra signage for
2960           use in areas such as laundry and mail rooms at Multi-Family Premises and in employee
2961           training areas, break rooms, kitchens, and janitorial areas at Commercial Premises.
2962
2963           5.17.5      Multi-Family Technical Assistance Program

2964           Contractor shall provide Recycling technical assistance to Multi-Family Customers to
2965           help each Customer determine how best to provide Recycling service to its tenants.
2966           This technical assistance shall include meetings with property managers at the Premises
2967           and on-site assessments of the Multi-Family Premises to identify appropriate locations
2968           for Containers and the number, type, and size of Containers that would be most suitable.
2969           Contractor shall offer the property manager Recycling posters and signage as required
2970           by Section 5.3.3.E. At a minimum, the Contractor’s Recycling coordinator shall meet

       City of Livermore                                                          Franchise Agreement
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2971           with every property manager twice annually to work with the property manager to
2972           improve Recycling participation levels in terms of the quantity and quality of
2973           Recyclables Materials Collected.
2974
2975           Contractor shall document each site visit using a form approved by the City identifying
2976           the name and address of the Premises, number of tenant units, date of the visit, name of
2977           property manager and contact information, current Recycling and Solid Waste service
2978           levels and calculated weekly Recycling capacity per tenant unit, property manager
2979           concerns and requests, and actions items. Audit forms shall be provided to the City in
2980           accordance with Section 6.3.3.H.
2981
2982           During the two annual site visits or upon request, Contractor shall restock posters,
2983           “How To Guides,” personal recycling baskets and any other appropriate materials
2984           (required by Section 5.3.3.E) and provide new Container signage if necessary.
2985
2986           Other public education requirements for Multi-Family Customers are described in
2987           Exhibits C and C-1.
2988
2989           5.17.6      Commercial Technical Assistance

2990           Contractor shall perform Recycling and Food Scraps audits for Commercial Customers.
2991           At a minimum, Contractor shall perform audits for all Customers that request an audit,
2992           for all new Commercial Customers, and for twenty percent (20%) of all Commercial
2993           Customers in the City each year. The goal of each audit shall be to provide assistance
2994           to the Customer or its property manager in the development of source reduction, reuse,
2995           Recycling, and Compostables Diversion programs. During the first Rate Period, the
2996           twenty percent (20%) of the Customers targeted by the Contractor shall be the
2997           Commercial Customers that generate the largest volumes of Solid Waste (as measured
2998           by the total weekly volume of Solid Waste serviced). After Contractor performs site
2999           visits for these large-volume Customers, Contractor shall continue to provide support to
3000           each Customer as requested and shall periodically contact the Customer to offer
3001           technical assistance and answer questions.
3002
3003           Contractor shall, by July 15 of each year, submit to the City a list of the Commercial
3004           Customers it proposes to audit during the Rate Period to comply with the twenty
3005           percent (20%) audit requirement and include justification for selection of the
3006           Commercial Customers. Commercial Customers shall be selected so that one hundred
3007           percent (100%) of the Commercial Customers are audited during a five (5) year period
3008           so that each Business is audited once every five (5) years. City shall review the list and
3009           provide comments to the Contractor within ten (10) Business Days of receipt. In the
3010           event the City does not provide a response to the Contractor, the proposed list of
3011           Commercial Customers shall be considered acceptable to the City.
3012
3013           Audits shall include, but are not limited to, waste, Recycling, Food Scraps, Diversion,
3014           and source reduction analysis; research of markets for specialized materials generated
3015           by the Customer; and assistance in internal Collection and training efforts.
3016


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3017           During site visits and through quarterly newsletters and other public outreach efforts,
3018           Contractor shall offer employee training sessions to Commercial Customers at the
3019           Customer’s Premises to educate employees about the Recycling and Food Scraps
3020           Collection programs and answer employee questions. Contractor shall provide the
3021           employee training sessions upon Customer request.
3022
3023           Contractor shall document each site visit using a form approved by the City identifying
3024           the name and address of the Premises, type of Commercial business, estimated square
3025           footage of the Premises, date of the visit, name of property manager and contact
3026           information, current Recycling and Solid Waste service levels, property manager
3027           concerns and requests, training (if any) provided to Customer and/or employees, and
3028           actions items. Audit forms shall be provided to the City in accordance with Section
3029           6.3.3.G.
3030
3031           5.17.7      Technical Assistance by Cascadia Consulting Group

3032           During the six months prior to the Commencement Date and ten-year Term of the
3033           Agreement, Contractor shall engage the services of Cascadia Consulting Group
3034           (Cascadia) as a Subcontractor. Commencing in the fourth year of the Agreement,
3035           Cascadia will reduce its intensity of effort as the program moves from an
3036           implementation stage to a maintenance level. Cascadia Consulting Group has expertise
3037           in providing Recycling and Composting technical assistance to Multi-Family and
3038           Commercial Customers. A table at the end of Exhibit C-1 presents the role Cascadia
3039           Consulting will take as a Subcontractor. The table describes Cascadia’s tasks,
3040           estimated days per month, and timeframe for performing each task. In summary, the
3041           Contractor plans that Cascadia will be responsible for the following activities:
3042
3043           A.    General. Cascadia will provide education, outreach, training, follow-up,
3044                 troubleshooting, monitoring, data collection, and program evaluation services for
3045                 Commercial and Multi-Family Customers. Providing such services on the
3046                 premises of Customers is referred to as “Recycling technical assistance.”
3047                 Cascadia will focus on increasing the Diversion of various reusable, Recyclable,
3048                 and Compostable Materials from these Customers, in accordance with the City’s
3049                 and County’s Diversion and resource conservation goals. Cascadia’s aim is to
3050                 maximize Tons Diverted and level of Customer participation while minimizing
3051                 materials contamination. Cascadia will provide practical advice, encouragement,
3052                 and positive reinforcement to Customers in support of these goals.
3053
3054           B.    Staff Resources. Cascadia will provide a project manager and team of Recycling
3055                 technical assistance specialists with the objective of gaining the maximum
3056                 Commercial and Multi-Family Recycling and Compostables Collection program
3057                 participation and Diversion.
3058
3059           C.    Hiring and Training. The Cascadia project manager will be responsible for
3060                 hiring and training the Contractor’s Commercial and Multi-Family Recycling
3061                 Manager.
3062


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3063           D.    Technical Assistance during the Six Months Prior to the Commencement
3064                 Date and First Three Years of the Agreement. Services shall include:
3065
3066                 1.    Coordinate with Contractor and City, local trade associations, unions and
3067                       management companies, as appropriate to develop and implement strategies
3068                       for targeted outreach and technical assistance to customers to implement
3069                       waste Diversion programs, including participation in Composting and
3070                       Recycling Collection programs and other waste prevention programs;
3071                 2.    Assist in identifying and screening Customers for opportunities where a
3072                       significant Diversion potential is possible;
3073                 3.    Conduct or assist in on-site waste audits, off-site audits of Compactor loads,
3074                       program assessments, staff and/or tenant training, on-site implementation
3075                       assistance, and follow-up monitoring of various waste Diversion options;
3076                 4.    Evaluate and present options for recovering and substituting difficult-to-
3077                       Recycle, Compost or reuse materials, such as Compostable or Recyclable
3078                       food service ware or packaging;
3079                 5.    Coordinate with Contractor to provide input into the development of
3080                       outreach materials about waste reduction, Recycling and Composting;
3081                       distribute such materials when meeting with Customers; and,
3082                 6.    Assist in gaining management support and dedication of staff resources
3083                       from Customer for program implementation.
3084
3085           E.    Customer Recognition Programs. Cascadia will assist with a Customer
3086                 recognition program. Cascadia will identify and promote other program or
3087                 recognition opportunities such as potential Green Business certification, toxics
3088                 reduction, green building, green purchasing, energy efficiency, water
3089                 conservation, local and regional awards, and other programs if applicable and
3090                 requested.
3091
3092           F.    Large Events and Venues. Cascadia shall develop a large event and venue
3093                 recycling protocol and guidelines within six months of the Commencement Date.
3094
3095           G.    Performance Monitoring. Cascadia will monitor the performance of the
3096                 Commercial and Multi-Family Recycling and Compostables program for the first
3097                 ten years of the Agreement to ensure greater and greater Customer participation
3098                 and Diversion of Recyclable and Compostable Materials. This monitoring task
3099                 will include on-going data collection and analysis and recommendations for
3100                 improvement. As part of the monitoring effort, Cascadia will develop program
3101                 tracking measures and prepare progress reports on impacts of program
3102                 implementation. Tracking measures may include waste Diversion, greenhouse
3103                 gas reduction, Customer participation levels, contamination, cost savings,
3104                 Generator satisfaction, and recommendations. For the first ten years of the
3105                 Agreement an annual performance report will be prepared by Cascadia as
3106                 described in Section 5.17.8 and identified in the table at the end of Exhibit C-1.
3107




       City of Livermore                                                          Franchise Agreement
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3108           5.17.8      Commercial and Multi-Family Program Performance Report

3109           To facilitate complete accountability in Contractor’s efforts to increase Diversion,
3110           Cascadia shall conduct an annual performance evaluation of Contractor’s Diversion
3111           performance. Performance indicators will be established by Cascadia, the City and
3112           Contractor, and will be measurable. On an annual basis, Cascadia shall assess
3113           performance using the agreed-upon indicators and compare actual performance to the
3114           annual objectives set between the City, Cascadia, and Contractor. This assessment shall
3115           occur on an annual basis (at the same time each year) for at least the first ten years of
3116           the Agreement. Annually, Cascadia shall conduct the performance review and provide
3117           a report to the City documenting actual results compared to annual objectives,
3118           explaining differences between actuals and the objectives, and providing
3119           recommendations for improvement. The report shall be submitted in accordance with
3120           annual reporting requirements in Section 6.4.


3121   5.18    Personnel including Prevailing Wages

3122           5.18.1      General

3123           Contractor shall furnish such qualified drivers, mechanical, supervisory, customer
3124           service, clerical and other personnel as may be necessary to provide the services
3125           required by this Agreement in a safe and efficient manner. (See also Section 5.1.)
3126
3127           Contractor recognizes the importance of establishing a successful relationship between
3128           its general manager and City staff. Therefore, the Contractor will allow the City the
3129           right to approve the selection of the Contractor’s general manager provided that the
3130           City’s approval is not unreasonably withheld. The City shall have the right to request
3131           that the Contractor replace its general manager for any of the following reasons:
3132
3133           1.    In the event Liquidated Damages levied for events listed in Exhibit F, with the
3134                 exception of damages levied for Collection reliability and Collection quality
3135                 events items 1, 2, and 12 of Exhibit F, in any three month period exceed $2,000;
3136                 or,
3137
3138           2.    In the event Liquidated Damages levied for Collection reliability and Collection
3139                 quality events items 1, 2, and 12 of Exhibit F, in any three (3) month period
3140                 exceed $45,000; or,
3141
3142           3.    In the event the City determines, through a review of Billings required by Section
3143                 6.1.4, that Contractor has under billed or overcharged Single-Family Generators
3144                 by a rate of three (3) percent or more of total Single-Family billed revenues or
3145                 Multi-Family, Commercial and Drop Box/Compactors Generators by a rate of one
3146                 and a half percent (1.5%) of total Multi-Family, Commercial and Drop
3147                 Box/Compactor billed revenues, and Contractor is unable to correct such Billing
3148                 errors to a rate of one and a half percent (1.5%) of total Billings of Single-Family
3149                 Generators and half a percent (0.5%) of total Billings of Multi-Family Generators,


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                                                                                              Page 75
3150                 and half a percent (0.5%) of total Billings of Commercial and Drop
3151                 Box/Compactor Generators as demonstrated by a subsequent audit of incorrectly
3152                 billed accounts conducted in the quarter immediately following the bi-annual
3153                 report in which the Billing error rate was identified, or that Contractor fails to
3154                 submit the bi-annual report required by Section 6.1.4 within fifteen (15) days of
3155                 the due date; or,
3156
3157           4.    In the event financial and operational records maintained by the Contractor
3158                 pursuant to Sections 6.2.1 and 6.2.2 and requested by the City for retrieval by the
3159                 Contractor are not provided to City within two (2) weeks of the request.
3160
3161           5.18.2      Driver Qualifications

3162           All drivers shall be trained and qualified in the operation of Collection vehicles and
3163           must have in effect a valid license, of the appropriate class, issued by the California
3164           Department of Motor Vehicles. Contractor shall ensure full compliance with the
3165           California Department of Motor Vehicles “Employer Pull Notice Program” (CVC
3166           1808.1).
3167
3168           5.18.3      Safety Training

3169           Contractor shall provide suitable operational and safety training for all of its employees
3170           who utilize or operate vehicles or equipment for Collection of Solid Waste, Recyclable
3171           Materials, or Compostable Materials or who are otherwise directly involved in such
3172           Collection. Contractor shall train its employees involved in Collection to identify, and
3173           not to Collect, Hazardous Waste or Infectious Waste. Training records shall be
3174           available for review by the City upon request. (See also Sections 5.11 and 5.14.7.)
3175
3176           5.18.4      No Gratuities

3177           Contractor shall not permit its employees to accept, demand, or solicit, directly or
3178           indirectly, any additional compensation or gratuity from members of the public for the
3179           Collection of Solid Waste, Recyclable Materials, and Compostable Materials under this
3180           Agreement.
3181
3182           5.18.5      Employee Conduct and Courtesy

3183           Contractor shall use its best efforts to assure that all employees present a neat
3184           appearance and conduct themselves in a courteous manner. Contractor shall regularly
3185           train its employees in customer courtesy, shall prohibit the use of loud or profane lan-
3186           guage or music, and shall instruct Collection employees to perform the work as quietly
3187           as possible. If any employee is found not to be courteous or not to be performing
3188           services in the manner required by this Agreement, Contractor shall take all appropriate
3189           corrective measures.
3190




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3191           5.18.6      Uniforms

3192           All employees of the Contractor performing field service under this Agreement shall be
3193           dressed in clean uniforms with employee’s name or numbered badge, which also shows
3194           Contractor’s name, thereon at all times while engaged in the work; no portion of this
3195           uniform may be removed while working.
3196
3197           5.18.7      Provision of Field Supervision

3198           Contractor shall designate at least two qualified employee as supervisors of field
3199           operations. Each field supervisor will devote at least seventy percent (70%) of his or
3200           her time in the field checking on Collection operations, including responding to
3201           Complaints.
3202
3203           5.18.8      Customer Service Representatives

3204           At a minimum, Contractor shall employ one full-time customer service manager and
3205           three full-time customer service representatives dedicated to serving the City and its
3206           Customers. The customer service representatives shall be trained on specific City
3207           service requirements, a minimum of once per quarter in accordance with Section 6.9.7.
3208           The customer service manager and representatives will work in offices at the
3209           Contractor’s Livermore corporation yard.
3210
3211           5.18.9      Employment Conditions

3212           Contractor shall comply with the following employment conditions:
3213
3214           A.    Offer Employment to Existing Employees. Contractor shall offer employment
3215                 to employees working under the City’s franchise agreement in effect through June
3216                 30, 2010 (“existing employees”) who become unemployed by reason of the
3217                 change in contractors. However, Contractor shall not be obligated to offer
3218                 employment to more existing employees than the Contractor needs to perform the
3219                 services required under the Agreement and Contractor shall not be obligated to
3220                 offer employment to existing employees that are not working prior to the
3221                 Commencement Date due to a leave of absence related to disability or workers’
3222                 compensation claim. Additionally, Contractor shall not be obligated to displace
3223                 any of its current employees or modify its current job performance requirements
3224                 or employee selection standards. Additional employees, if needed, shall be
3225                 obtained pursuant to procedures in effect under the collective bargaining
3226                 agreement with the collection contractor that provides Collection services through
3227                 June 30, 2010. This requirement, however, shall not be applicable to management
3228                 or supervisory personnel.
3229
3230           B.    Wages and Benefits. Wages and benefits applicable to employees performing
3231                 work under the Agreement shall not be less than those prevailing in Alameda
3232                 County for comparable work. Either the City or the Contractor may apply to the
3233                 Director of the California Department of Industrial Relations for a determination


       City of Livermore                                                         Franchise Agreement
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3234                 of such prevailing wages and benefits, if the Parties do not reach agreement on the
3235                 amounts involved.
3236
3237           C.    Subcontractor Compliance. The Contractor may enter into agreement(s) with
3238                 Subcontractors to provide services covered in the Agreement subject to the prior
3239                 written consent of the City as stated in Section 12.7. Subcontractors shall be
3240                 required to comply with the obligations stated in paragraphs (A) and (B), above.


3241   5.19    Contingency Plan

3242           Contractor shall submit to City on or before the Commencement Date, a written
3243           contingency plan demonstrating Contractor's arrangements to provide vehicles and
3244           personnel and to maintain uninterrupted service during mechanical breakdowns, and in
3245           case of natural disaster, other emergencies, or labor disputes. This contingency plan
3246           shall be specific to the needs of the City and its Customers.


3247   5.20    Implementation of New Services

3248           The Contractor acknowledges that the Contractor’s implementation of the services
3249           required under this Agreement shall occur in a smooth and seamless manner such that
3250           Customers do not experience disruption in Collection services. Contractor shall be
3251           responsible for managing implementation of Collection services and other related
3252           services required under this Agreement and shall do so in accordance with the
3253           implementation plan provided in Exhibit D.


3254   5.21    Corporation Yard, Transfer Operations, CNG Station

3255           Contractor shall provide a site to be used for staging Collection equipment and
3256           personnel, performing equipment maintenance, housing administrative and customer
3257           service offices and staff, and transferring Recyclable Materials and Compostable
3258           Materials. The Contractor plans to establish this operation in the City of Livermore and
3259           may own or lease the site for such purposes.
3260
3261           As the Contractor’s Livermore site, Contractor plans to conduct Transfer operations
3262           indoors. Collection vehicles will be equipped with a walking floor behind the packing
3263           mechanism that will walk or move the materials out of the Collection vehicle body and
3264           directly into a Transfer trailer. This “direct” transfer method reduces the clear height
3265           needed in the building for materials offloading, and does not require a full Solid Waste
3266           Facility Permit from the State.
3267
3268           Contractor plans included development of a compressed natural gas (CNG) fueling
3269           station at its Livermore yard to fuel its Collection vehicles. Contractor will retain
3270           services of a Subcontractor, Clean Energy, a large provider of CNG. Clean Energy will


       City of Livermore                                                         Franchise Agreement
                                                                                             Page 78
3271           be responsible for designing, permitting, building, and operating the CNG station. The
3272           City can request that the CNG station be designed to provide additional capacity for
3273           City vehicles and/or public access. In such case, the terms of the fueling arrangements
3274           will be negotiated by the Parties.
3275
3276           Contractor’s proposed total annual costs for services presented in Exhibit G and Rates
3277           for Rate Period One presented in Exhibit H include costs for the Livermore corporation
3278           yard, transfer operations, and CNG station. If for some reason, the Contractor is unable
3279           to secure, develop, and operate the site and necessary infrastructure that served as the
3280           basis of its cost proposal and Rates at the cost it anticipated or secured an alternative
3281           site, Contractor’s Compensation and Rates shall not be adjusted to reflect any
3282           differences in costs incurred by the Contractor for site acquisition, development,
3283           permitting, operations, or other related items unless Contractor proposes a reduction in
3284           costs.
3285
3286           Facilities in the City limits shall conform to development permit requirements including
3287           the City’s Green Building Ordinance for Commercial uses and are required to obtain all
3288           necessary land use entitlements, which could be administrative, or require public
3289           meetings depending on the scope of work. Development regulations contain
3290           requirements for screening and/or enclosing unsightly storage and operations. The City
3291           is particularly concerned about impacts related to dust and Litter and wants any material
3292           handling activities to be performed in an enclosed facility and for areas used for
3293           parking, vehicle access, and operations to be paved. The Community Development
3294           Department will review site planning and screening alternatives proposed to meet such
3295           requirements.


3296   5.22    Community Reuse E-Network

3297           To promote the reuse of Bulky Items, Contractor shall create and manage an on-line
3298           community networking site exclusively for Livermore residents and non-profit
3299           organizations to facilitate identification of end users for Bulky Items in good, working
3300           condition. Users may not ask for monetary reimbursement for any item. After
3301           registering, Livermore residents may post Bulky Items they wish to give away. Users
3302           will also be required to include a photo of their item. Other Livermore residents and
3303           non-profit organizations may claim the item, and, by completing a delivery request
3304           form, Contractor will Collect the item from the donor and deliver it to the recipient, free
3305           of charge. Contractor will strategically schedule Collections and deliveries by
3306           geographical area in such a way as to minimize environmental impacts. This unique
3307           system accomplishes several things: it enables residents to find a guaranteed local end
3308           use for their item; it allows residents to discard items over the limit granted through
3309           their three Curbside clean-up events; it relieves Customers of the inconvenience of
3310           moving the item themselves; and, through Contractor’s work order system, it provides a
3311           means of tracking Diversion for the City.
3312




       City of Livermore                                                           Franchise Agreement
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3313                                     ARTICLE 6.
3314                            OTHER RELATED SERVICES AND
3315                                    STANDARDS


3316   6.1     Billing

3317           6.1.1       General

3318           The City shall approve Rates by City Council resolution that Contractor shall charge
3319           Customers for the types of service provided under this Agreement. Contractor shall bill
3320           all Customers and collect Billings in accordance with City-approved policies and Rates
3321           on the Rate Schedule in Exhibit H. City shall have the right to review and revise the
3322           Billing format to itemize certain charges.
3323
3324           On each bill, Contractor shall include a brief message to Customers providing service-
3325           related announcements such as messages about new services, the on-call clean-up
3326           services, E-Waste services, and Bulky Item services, proper handling of Household
3327           Hazardous Waste and Christmas tree Collection, etc.
3328
3329           The Contractor shall prepare, mail and collect bills (or shall issue written receipts for
3330           cash payments) for Collection services provided by Contractor under this Agreement.
3331           Bills for Residential service shall be mailed to Customers quarterly in advance of the
3332           provision of service. Bills for Commercial service shall be mailed to Customers
3333           monthly in advance of the provision of service. If Commercial Customers have
3334           centralized service (in which Containers are shared by more than one Commercial
3335           Premises), Contractor shall bill one Customer for centralized services or, at the request
3336           of the Commercial Customers sharing the Containers, Contractor shall treat each
3337           Commercial Premises as a separate Customer and shall bill each Customer for service
3338           costs equal to the Rate divided by the number of Commercial Premises sharing the
3339           service. Contractor shall provide Customers the option of receiving bills electronically.
3340
3341           Contractor shall make arrangements to allow its Customers to pay bills through the
3342           following means: check, cash, credit card, Internet payment service, or automatic
3343           withdrawal from banking account. Contractor shall provide at least one drop-off
3344           location in the City where Customers may deposit their payments.
3345
3346           The Contractor shall maintain copies of said Billings and receipts, each in chronological
3347           order, for a period of three (3) years after the billing date for inspection by City. The
3348           Contractor may, at its option, maintain those records in computer form, on microfiche,
3349           or in any other manner, provided that the records can be preserved and retrieved for
3350           inspection and verification in a timely manner.
3351




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3352           6.1.2       Bad Debt Collection

3353           If there is no payment of a bill within sixty (60) calendar days from the invoice date, the
3354           Contractor shall undertake collection of the amount owed (including penalties and
3355           expenses of collection). Contractor shall make reasonable efforts to obtain payment
3356           through issuance of late payment notices, telephone requests for payment, and
3357           assistance from collection agencies (who shall make at least two attempts to collect). If
3358           a Single-Family or Multi-Family Customer does not pay its bill within sixty (60) days
3359           from the invoice date, Contractor may reduce Customer’s Solid Waste Collection
3360           service to the minimum service offered under this Agreement in accordance with
3361           Sections 5.2.1 and 5.2.4 and discontinue Recyclables, Compostables Materials, and on-
3362           call clean-up Collection service. If a Commercial Customer does not pay its bill within
3363           sixty (60) days from the invoice date, Contractor may discontinue Recyclables and
3364           Compostables Materials Collection service and reduce the Solid Waste service level to
3365           one 32-gallon Cart serviced once per week. If the Contractor plans to reduce a
3366           Commercial Customer’s service level, Contractor shall provide the City with written
3367           notice of its intention a minimum of ten (10) Business Days prior to reduction in the
3368           Commercial Customer’s service level reduction. On a monthly basis, Contractor shall
3369           provide a list of Customers that are sixty (60) days past due and have thus had their
3370           level of Collection services reduced in accordance with reporting requirements in
3371           Section 6.3.2.E.
3372
3373           Contractor shall be responsible for collection of payment from Customers with past due
3374           accounts (“bad debt”) for a period of one (1) year from the invoice date. Contractor
3375           shall make reasonable efforts to obtain payment from delinquent accounts through
3376           issuance of late payment notices, telephone requests for payments, reduction in
3377           Customer’s service level, and assistance from collection agencies. In the event
3378           Contractor’s efforts for a one (1) year period to collect monies due from a Customer fail
3379           and Contractor can demonstrates to the City that Contractor attempted on at least four
3380           (4) documented occasions to solicit monies due from each delinquent account and
3381           reduce Customer’s service level to encourage Customer’s payment, then Contractor
3382           shall provide the City with the name and address of each delinquent account and
3383           amount due, and the City shall then initiate any collection procedures authorized by
3384           law, including those special assessment procedures authorized by Government Code
3385           Sections 39577. Contractor shall pay for reasonable costs incurred by the City in
3386           conducting collection procedures but may recover such costs through a fee established
3387           by the City and assessed on each delinquent Customer account. Within thirty (30)
3388           calendar days of the City’s receipt of payment for past due accounts, the City shall pay
3389           those sums to Contractor less any monies Contractor would be obliged to pay to City
3390           hereunder had those sums been received by Contractor in the first instance.
3391
3392           6.1.3       Billing Inserts

3393           City may direct Contractor to insert up to ten (10) mailers per year into bills relating to
3394           service with the Billings including inserts prepared by StopWaste.Org (also known as
3395           the Alameda County Waste Management Authority and Alameda County Source
3396           Reduction and Recycling Board). The mailers must fit in standard envelopes.
3397           Contractor also agrees to insert with the Billings, mailers describing activities of the

       City of Livermore                                                           Franchise Agreement
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3398           City government. City will provide not less than thirty (30) calendar days notice to
3399           Contractor prior to the mailing date of any proposed mailing to permit Contractor to
3400           make appropriate arrangements for inclusion of the City's materials. City will provide
3401           Contractor the mailers at least fifteen (15) calendar days prior to the mailing date. The
3402           cost of printing such inserts and any additional postage shall either be paid for by the
3403           City or included in the costs upon which Rates are based.
3404
3405           6.1.4       Review of Billings

3406           A.      General. Contractor shall review its Billings to Generators. The purpose of the
3407                   review is to determine that the amount which the Contractor is billing each
3408                   Generator is consistent with the City-approved Rate schedule in Exhibit H for the
3409                   level of service (i.e., frequency of Collection, size of Container(s), number of
3410                   Containers, and location of Container(s)) provided to such Generator by
3411                   Contractor.
3412
3413           B.      Procedures. Contractor shall review each Cart Service account at least once per
3414                   year in such a manner that all accounts on a particular route are audited on the
3415                   same day. The audits shall be scheduled so that Contractor completes audits of
3416                   twenty-five percent (25%) of the Cart Service routes each quarter. Contractor
3417                   shall review each Bin Service account and Drop Box/Compactor Service account
3418                   at least once every other year. Audits shall be scheduled in a manner that all
3419                   accounts on a particular route are audited on the same day and twelve and one
3420                   half percent (12.5%) of the Bin Service and Drop Box/Compactor Service routes
3421                   are audited each quarter.
3422
3423                   The review shall be performed by the Contractor’s route supervisor(s) or other
3424                   agent approved by the City. The Person conducting the review shall compare a
3425                   route report for the route under review and verify, through visual inspection of
3426                   each Customer’s Premises on the Customer’s scheduled day of Collection, the
3427                   level of service actually provided to each Customer listed on the route report
3428                   review and note the actual service level in writing on the route report. In
3429                   addition, the Contractor’s route supervisor or appropriate agent shall list any
3430                   Customers receiving service (and the level of such service) that do not appear on
3431                   the routing report. The Contractor shall reconcile the route report to the billing
3432                   report, noting all discrepancies. Any discrepancies should be marked clearly on
3433                   the billing report. Contractor shall verify if the discrepancies result from
3434                   Customer’s request for special services on the day of the route audit and shall
3435                   provide documentation in such cases. Contractor shall issue correction notices to
3436                   the Customers correcting any billing inaccuracies within five (5) Business Days
3437                   of the day the route audit was performed and shall provide such notices to City
3438                   along with the annotated billing report.
3439
3440           C.      Route Audit Schedule. Thirty (30) calendar days prior to the Commencement
3441                   Date, Contractor shall submit a two-year schedule for performing route audits,
3442                   listing each route and calendar quarter that each route will be audited. If the
3443                   Contractor proposes to modify the two-year schedule during the Term, the
3444                   Contractor shall submit a revised route audit schedule to the City for approval.

       City of Livermore                                                           Franchise Agreement
                                                                                               Page 82
3445
3446           D.      Reporting Requirements. Two (2) weeks after the end of each calendar quarter,
3447                   Contractor shall submit a written report to the City that identifies the Cart Service,
3448                   Bin Service and Drop Box/Compactor Service routes audited, the number of
3449                   accounts on each route, the number of billing inaccuracies per route, the
3450                   percentage of billing inaccuracies (where billing inaccuracies are instances when
3451                   service observed by route auditor differs from service listed on the route and/or
3452                   billing reports) per route (equal to the number of billing inaccuracies divided by
3453                   the number of accounts per route), and the estimated annual revenue impact
3454                   associated with the billing inaccuracies (which shall be calculated as the
3455                   difference between the billing amount shown on the billing report on the date of
3456                   the audit and the corrected billing amount multiplied by 12). The written report
3457                   shall also include copies of the route audits (i.e., billing reports with handwritten
3458                   notes identifying actual level of service provided to each Customer and notes the
3459                   billing discrepancies), copies of the corrective notices sent to Customers, and any
3460                   supporting calculations. The City reserves the right to perform this review itself
3461                   or through use of an agent at its expense.


3462   6.2     Records

3463           6.2.1       General

3464           Contractor shall maintain such accounting, statistical, and other records related to its
3465           performance under this Agreement as shall be necessary to develop the financial
3466           statements and other reports required by this Agreement. Also, Contractor agrees to
3467           conduct data collection, information and record keeping, and reporting activities needed
3468           to comply with and to meet the reporting and Solid Waste program management needs
3469           of Contractor and the Act and other Federal and State and local laws and regulations
3470           and the requirements of this Agreement. To the extent such requirements are set out in
3471           this and other Articles of this Agreement, they shall not be considered limiting or
3472           necessarily complete. In particular, this Article is intended to only highlight the general
3473           nature of records and reports and their minimum content and is not meant to
3474           comprehensively define what the records and reports are to be and their content.
3475           Further, with the written direction from the City, the records and reports to be
3476           maintained and provided by Contractor in accordance with this and other Articles of the
3477           Agreement shall be adjusted in number, format, or frequency. Records and reporting
3478           may be revised to reflect current record keeping and reporting.
3479
3480           Contractor shall maintain records required to conduct its operations, to support requests
3481           it may make to City, and to respond to requests from City. Adequate record security
3482           shall be maintained to preserve records from events that can be reasonably anticipated
3483           such as a fire, theft and earthquake. Electronically-maintained data/records shall be
3484           protected and a second copy of data/records shall be saved to a protected source such as
3485           an external hard-drive.
3486



       City of Livermore                                                              Franchise Agreement
                                                                                                  Page 83
3487           Contractor agrees to provide or make available records of any and all companies
3488           conducting operations addressed in the Agreement to City and its agents and/or
3489           representatives during normal business hours.
3490
3491           6.2.2       Maintenance of Financial and Operational Records

3492           A.      General. In order to effectuate the periodic financial review to determine Rates
3493                   pursuant to Article 8, it is necessary for Contractor to maintain accurate, detailed
3494                   financial and operational information in a consistent format and to make such
3495                   information available to the City in a timely fashion.
3496
3497           B.      Contractor's Accounting Records. Contractor shall maintain accurate and
3498                   complete accounting records containing the underlying financial and operating
3499                   data relating to and showing the basis for computation of all costs associated with
3500                   providing services under this Agreement. The accounting records shall be
3501                   prepared in accordance with Generally Accepted Accounting Principles (GAAP)
3502                   consistently applied.
3503
3504           C.      Inspection of Records. The City, its auditors and other agents, shall have the
3505                   right, during regular business hours, to conduct unannounced on-site inspections
3506                   of the records and accounting systems of Contractor and to make copies of any
3507                   documents it deems relevant to this Agreement. In the event the Person
3508                   responsible for such records and systems is not on the premises at the time the
3509                   City, its auditors or other agents visit Contractor’s facilities, Contractor shall not
3510                   be in breach of this Agreement and the City shall give notice requesting access to
3511                   the records and Contractor shall make arrangements for City, its auditors, or other
3512                   agents to conduct the on-site inspection within twenty-four (24) hours of such
3513                   notice. The City’s right to inspection of records under this paragraph shall
3514                   continue for at least five (5) years after the expiration or earlier termination of this
3515                   Agreement; however, after expiration or termination of this Agreement, the City
3516                   shall provide Contractor with written request to inspect records and Contractor
3517                   shall make records available for inspection within two (2) weeks of such request.
3518
3519           D.      Retention of Records. Unless otherwise herein required, Contractor shall retain
3520                   all records and data required to be maintained by this Agreement for at least five
3521                   (5) years after the expiration or earlier termination of this Agreement.
3522
3523                   Records and data required to be maintained that are specifically directed to be
3524                   retained shall be retrieved by Contractor and made available to the City.
3525
3526                   Records and data required to be maintained that are not specifically directed to be
3527                   retained that are, in the sole opinion of the City, material to the financial review
3528                   to determine Rates or to determine Contractor's performance under this
3529                   Agreement, shall be retrieved by Contractor and made available to the City.
3530
3531                   Records and data required to be maintained that are not specifically directed to be
3532                   retained and that are not material to a financial review to determine Rates and/or


       City of Livermore                                                               Franchise Agreement
                                                                                                   Page 84
3533                   not required for the determination of the Contractor's performance do not need to
3534                   be retrieved by Contractor. In such a case, however, the City may make
3535                   reasonable assumptions regarding what information is contained in such records
3536                   and data, and such assumption(s) shall be conclusive in whatever action the City
3537                   takes.
3538
3539           6.2.3       Collection Records

3540           Records shall be maintained by Contractor for City relating to:
3541
3542           A.      Customer services and billing;
3543
3544           B.      Weight and volume of each material type Collected separately (e.g., Solid Waste,
3545                   Recyclable Materials, Compostable Materials, Food Scraps, Bulky Items, E-
3546                   Waste, motor oil, etc.). Where possible, information is to be separated among
3547                   Cart Service, Bin Service and Drop Box/Compactor Service and/or Customer type
3548                   (e.g., Single-Family, Multi-Family, Commercial, Drop Box, and Compactor);
3549
3550           C.      Routes;
3551
3552           D.      Facilities, equipment and personnel used;
3553
3554           E.      Facilities and equipment operations, maintenance and repair;
3555
3556           F.      Disposal and Processing of Solid Waste, Recyclable Materials, Compostable
3557                   Materials, Food Scraps, and any other materials separately Collected;
3558
3559           G.      Daily record of the quantities of Solid Waste, Recyclable Materials, Compostable
3560                   Materials, and Food Scraps Collected; and,
3561
3562           H.      Records of Customers that received on-call clean-up collections. Such records
3563                   shall include the date of such Collection and shall demonstrate that Contractor did
3564                   not provide more than three (3) clean-up Collections at no charge to any one
3565                   Customer per year.
3566
3567           Contractor shall maintain records of all Solid Waste, Recyclable Materials and
3568           Compostable Materials Collected in the City for the period of this Agreement plus five
3569           (5) years after its expiration or earlier termination. Records shall be in chronological
3570           and organized form and readily and easily interpreted. In the event City requests,
3571           Contractor shall provide all records of all Solid Waste, Recyclable Materials, and
3572           Compostable Materials requested to City within thirty (30) calendar days of
3573           discontinuing service.
3574
3575           6.2.4       Recyclable Materials and Compostable             Materials   Collection   and
3576                       Processing Service Records

3577
3578           Records shall be maintained for Contractor that relate to:

       City of Livermore                                                           Franchise Agreement
                                                                                               Page 85
3579
3580           1.      Recyclable Materials and Compostable Materials Collection participation
3581                   especially as related to determining participation and set-out rates and
3582                   implementing programs to increase existing participation and to expand Diversion
3583                   (names, addresses, contacts made, etc.);
3584           2.      Recyclable Materials and Compostable Materials sales value;
3585           3.      Weight of material recovered by type and weight of residue Disposed; and,
3586           4.      End use and markets for recovered materials.
3587
3588           6.2.5       Transfer and Disposal Records

3589           Contractor shall maintain records of transfer, Disposal and Processing of all Solid
3590           Waste, Recyclable Materials, and Compostable Materials Collected by Contractor for
3591           the period of this Agreement plus five (5) years after its expiration or earlier
3592           termination. Records shall be in chronological and organized form and readily and
3593           easily interpreted. In the event City requests, Contractor shall provide all records of
3594           transfer and Disposal or Processing of all Solid Waste, Recyclable Materials, and
3595           Compostable Materials Collected by Contractor in the City within thirty (30) calendar
3596           days of discontinuing service.
3597
3598           6.2.6       Other Program Records

3599           Records for other programs shall be tailored to specific needs. In general, they shall
3600           include:
3601
3602           1.      Plans, tasks, and milestones; and,
3603           2.      Accomplishments in terms of activities conducted; date of activity; Tonnages of
3604                   materials Collected; quantities of products used: produced or distributed; and
3605                   numbers of participants and responses.
3606
3607           6.2.7       CERCLA Defense Records

3608           City views the ability to defend against Comprehensive Environmental Response,
3609           Compensation and Liability Act (CERCLA) and related litigation as a matter of great
3610           importance. For this reason, the City regards the ability to prove where Solid Waste
3611           Collected in the City was taken for transfer or Disposal, as well as where it was not
3612           taken, to be matters of concern. Contractor shall maintain, retain and preserve records
3613           which can establish where Solid Waste Collected in the City was Disposed (and
3614           therefore establish where it was not). This provision shall survive the expiration or
3615           earlier termination of this Agreement. Contractor shall maintain these records for a
3616           minimum of ten (10) years beyond expiration or earlier termination of the Agreement.
3617           Contractor shall provide these records to City in an organized and indexed manner
3618           rather than destroying or disposing of them.
3619
3620           6.2.8       Customer Service Records

3621           Customer service records shall be maintained by Contractor for City related to:
3622

       City of Livermore                                                         Franchise Agreement
                                                                                             Page 86
3623           1.      Number and nature of calls;
3624           2.      Categories (missed pickups, Complaints, damage, inquiries, etc.) of calls;
3625           3.      Training Records;
3626           4.      Individual call and resolution log (including initial call date and resolution date);
3627                   and,
3628           5.      New Recycling and Compostables Customer account log.


3629   6.3     Reports

3630           6.3.1       Report Formats and Submittal Schedule

3631           Records shall be maintained in forms and by methods that facilitate flexible use of data
3632           contained in them to structure reports, as needed. Reports are intended to compile
3633           recorded data into useful forms of information that can be used to, among other things:
3634
3635           1.      Determine and set Rates and evaluate the financial efficacy of operations;
3636           2.      Evaluate past and expected progress towards achieving the Contractor’s
3637                   Diversion goals and objectives; and,
3638           3.      Determine needs for adjustment to programs; and evaluate Customer service and
3639                   Complaints.
3640
3641           Contractor may propose report formats that are responsive to the objectives and
3642           audiences for each report. The format of each report shall be approved by City.
3643           Contractor agrees to e-mail all reports to the City (or submit reports on computer disks
3644           in the event e-mail communications are unsuccessful) in a format compatible with
3645           City’s software/computers at no additional charge. Contractor will provide a
3646           certification statement, under penalty of perjury, by the responsible Contractor official,
3647           that the report being submitted is true and correct to the best knowledge of the
3648           responsible official after their reasonable inquiry.
3649
3650           Monthly reports shall be submitted within thirty (30) calendar days after the end of the
3651           reporting month. Quarterly reports shall be submitted within forty-five (45) calendar
3652           days after the end of the reporting quarter. Annual reports shall be submitted no later
3653           than April 30 for the calendar year ending December 31.
3654
3655           All reports shall be submitted to:
3656
3657
3658                                           City of Livermore
3659                                       3500 Robertson Park Road
3660                                      Livermore, CA 94550-4899
3661                                      Attn: Public Works Manager
3662
3663




       City of Livermore                                                             Franchise Agreement
                                                                                                 Page 87
3664           6.3.2       Monthly Report Content

3665           Monthly reports shall be presented to show the following information.
3666
3667           A.      Solid Waste Services. Provide Tonnage Collected by Service Type.
3668
3669           B.      Recyclable Materials Services. Provide Tonnage Collected by Service Type.
3670                   Provide Tonnage marketed and Residue Disposed (which should total the
3671                   Tonnage Collected). If more than one Processing Site is used, present information
3672                   separately for each site.
3673
3674           C.      Compostable Materials Service. Provide Tonnage Collected by Service Type.
3675                   Provide Tonnage marketed and Residue Disposed (which should total the
3676                   Tonnage Collected). If more than one Processing Site is used, present
3677                   information separately for each site. Report the number of Commercial Food
3678                   Scraps Customers for each level of service.
3679
3680           D.      Customer Service
3681                   1.   Provide number of Customer calls listed separately by Complaints and
3682                        inquiries (where inquiries include requests for Recycling information, Rate
3683                        information, etc.). For Complaints, list the number of calls separately by
3684                        category (e.g., missed pickups, scheduled cleanups, billing concerns,
3685                        damage claims, etc.).
3686                   2.   Provide number of new Multi-Family and Commercial Recyclable
3687                        Materials and Organic Materials accounts for Cart, Bin and Drop
3688                        Box/Compactor Services.
3689                   3.   Provide number of Carts, Bins, Drop Boxes, and Compactors tagged for
3690                        non-Collection and the reason for tagging (e.g., inclusion of non-Recyclable
3691                        or non-Compostable materials, improper setout, Hazardous Waste, etc.)
3692                   4.   Provide the number of hits to the Contractor’s website.
3693
3694           E.      Revenue and Customer Account Reports. Provide a statement detailing Gross
3695                   Rate Revenues from all operations conducted or permitted pursuant to this
3696                   Agreement as required by Section 7.8. This statement shall identify billed
3697                   revenues and actual Gross Rate Revenues received listed separately for Single-
3698                   Family, Multi-Family, Commercial, and Drop Box/Compactor Customers.
3699                   Include a list of the number of Customers by Service Type and Rate category.
3700
3701                   Submit a list of Customers that are sixty (60) days past due including the
3702                   following information for each delinquent account: name, service address;
3703                   contact information; number of days the account is delinquent; method(s) the
3704                   Contractor has used to attempt collection of the bad debt including date of such
3705                   attempt(s), and identification, if, and when the Contractor reduced the Customer’s
3706                   level of Collection services as a result of the account delinquency.
3707
3708           F.      Multi-Family Technical Assistance. Submit a list of all complexes in the City
3709                   with addresses, contact names and telephone numbers, number of units, and the


       City of Livermore                                                           Franchise Agreement
                                                                                               Page 88
3710                   Solid Waste and Recyclable Materials service level for each complex. Identify
3711                   the complexes visited during the reporting period and the results of such visits.
3712
3713           G.      Commercial Technical Assistance. Submit a list of all Commercial Customers
3714                   visited during the reporting period and the results of such visits. Include
3715                   addresses, contact names and telephone numbers of Persons contacted.
3716
3717           H.      Community Garage Sale Event. If the garage sale event occurred during the
3718                   most-recently completed month, report on the community garage sale event
3719                   pursuant to Section 5.9.
3720
3721           6.3.3       Quarterly Report Content

3722           Quarterly reports shall be presented to show the following information by each month’s
3723           data in the reported quarter and include a quarterly average. In addition, each quarterly
3724           report shall show the past four (4) quarters average for data comparison (the first three
3725           quarters of the Agreement shall only include the available quarterly information).
3726
3727           A.      Solid Waste Services
3728                   1.    Quarterly summary of monthly reports required in Section 6.3.2.A;
3729                   2.    Accounts collected by Service Type. Include number of accounts, as well
3730                         as number of total cubic yards for Bin Service; and number of pulls,
3731                         deliveries, and pickups for Drop Box / Compactor Service; and,
3732                   3.    Solid Waste Tonnage Disposed.
3733                   4.    Tonnage of Abandoned Solid Waste Collected during the quarter as
3734                         required by Section 5.8.1.
3735
3736           B.      Recyclable Materials Services
3737                   1.   Quarterly summary of monthly reports required in Section 6.3.2.B;
3738                   2.   Accounts collected by Service Type. Include number of accounts, as well
3739                        as number of total cubic yards for Bin Service; and number of pulls,
3740                        deliveries, and pickups for Drop Box and Compactor Service;
3741                   3.   Participation percentage by Service Type (number of accounts actually
3742                        serviced divided by the number of accounts scheduled for service); and,
3743                   4.   Tonnage by Recyclable Material commodities and Service Type. Report on
3744                        marketing activities. Report the average monthly Residue level.
3745
3746           C.      Compostable Materials Service
3747                   1.  Quarterly summary of monthly reports required in Section 6.3.2.C;
3748                   2.  Accounts collected by Service Type. Include number of accounts, as well
3749                       as number of total cubic yards for Bin Service; and number of pulls,
3750                       deliveries, and pickups for Drop Box and Compactor Service;
3751                   3.  Participation percentage by Service Type (number of accounts actually
3752                       serviced divided by the number of accounts scheduled for service);
3753                   4.  Tonnage Composted, separately quantifying Food Scraps;
3754                   5.  Tonnage by Compostable Materials commodities and Service Type. Report
3755                       on marketing activities. Report the average monthly Residue level; and,


       City of Livermore                                                          Franchise Agreement
                                                                                              Page 89
3756                 6.    Customer list identifying the name, address, Container size, and frequency
3757                       of Collection for each Commercial Customer participating in the Food
3758                       Scraps Collection program.
3759
3760           D.    Customer Service
3761                 1.   Quarterly summary of monthly reports required in Section 6.3.2.D;
3762                 2.   Customer Service overview sheet, training agenda, and other training
3763                      supplements provided at the quarterly customer service meeting pursuant to
3764                      Section 6.9.7; and,
3765                 3.   Date and time of the customer service training session scheduled for
3766                      Customer service representatives for the following quarter as the City may
3767                      exercise its right to attend the meeting pursuant to Section 6.9.7.
3768
3769           E.    Clean-Up / Bulky Item / E-Waste / Christmas Tree Services
3770                 Provide Tonnage by service (Clean-Up, Bulky Item, E-Waste, and Christmas tree
3771                 Collection Services). Include the following information:
3772                 1.    Disposal Tonnage;
3773                 2.    Diversion Tonnage, listed by vendor or Processing Site;
3774                 3.    Number of stops serviced by a third party Re-Use Vendor;
3775                 4.    List of Re-Use Vendors collecting reusable items; and,
3776                 5.    Number of individual clean-up events, Bulky Item pick-ups, and E-Waste
3777                       pick-ups during quarter.
3778
3779           F.    Education Quarterly Activities
3780                 Include the following:
3781                 1.     List of all public education efforts including but not limited to: mailers,
3782                        newsletters, bill inserts, announcements on bills, etc. For each item listed,
3783                        identify the date and method of distribution, the Customers or parties that
3784                        received the materials, and the total number distributed and provide a copy
3785                        of the material distributed; and,
3786                 2.     Dates, times, and group names of meetings attended.
3787
3788           G.    Commercial Recycling and Food Scraps Report
3789                 1.  Summarize the technical assistance provided to Customers by identifying
3790                     the number of site visits conducted each month in the most-recently
3791                     completed quarter, and submitting copies of the Commercial Recycling
3792                     and Food Scraps auditing forms (Recycling Opportunity Assessment
3793                     forms) as required in Section 5.17.6.
3794                 2.  Dates, times, addresses, and names of Commercial Customers that
3795                     received technical assistance/audits.
3796                 3.  Report the percentage of Commercial Customers that have Recycling
3797                     service and Food Scraps service (e.g., 82% of the Commercial Customers
3798                     have Recycling service and 50% have Food Scraps service).
3799                 4.  Report the percentage of total Commercial service volume that is
3800                     Recyclables volume and Compostables volume (e.g., the percentage of
3801                     Commercial service volume that is Recycling volume equals the number
3802                     of cubic yards of Commercial Recycling service per week divided by the


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3803                        sum of the weekly Commercial Solid Waste, Recyclables, and
3804                        Compostables cubic yards service per week).
3805
3806           H.    Multi-Family Recycling and Food Scraps Report
3807                 1.    Summarize the technical assistance provided to Customers by identifying
3808                       the number of site visits conducted each month in the most-recently
3809                       completed quarter, and submitting copies of the Multi-Family Recycling
3810                       and Food Scraps auditing forms (Recycling Opportunity Assessment
3811                       forms) as required in Section 5.17.5.
3812                 2.    Dates, times, addresses, and names of Multi-Family Customers that
3813                       received technical assistance/audits.
3814                 3.    Report the percentage of Multi-Family complexes that have Recycling
3815                       service and that have Compostables service.
3816                 4.    Report the average volume of Recyclables Collected per tenant unit per
3817                       week (e.g., the number of cubic yards of Multi-Family Recycling service
3818                       per week divided by the total number of Multi-Family units in the City).
3819
3820           I.    Pilot and New Programs. For each pilot and/or new program, provide activity
3821                 related and narrative reports on goals, milestones, and accomplishments.
3822                 Describe problems encountered, actions taken and any recommendations to
3823                 facilitate progress. Describe vehicles, personnel, and equipment utilized for each
3824                 program.
3825
3826           J.    Summary Assessment. Provide a summary assessment of the overall Solid
3827                 Waste, Recyclable Materials, and Compostable Materials program from
3828                 Contractor's perspective relative to the financial and physical status of the
3829                 program. The physical status assessment shall reflect how well the program is
3830                 operating in terms of efficiency, economy, and effectiveness in meeting all the
3831                 goals and objectives of this Agreement, particularly the Contractor’s Diversion
3832                 goals. Provide recommendations and plans to improve. Highlight significant
3833                 accomplishments and problems.
3834
3835           K.    Revenue and Customer Account Report. On a semi-annual basis, the quarterly
3836                 reports shall include a revenue report that summarizes monthly revenue reports
3837                 and Customer account information required under Section 6.3.2.E and compares
3838                 the revenues with contract and compensation and Gross Rate Revenue
3839                 expectations. The semi-annual reports shall be due on or before February 28 and
3840                 August 30.
3841
3842           L.    Education Plan for Coming Rate Period. The quarterly report that reports on
3843                 third quarter results shall include a plan for public education activities for the
3844                 coming Rate Period in accordance with Section 5.17.2.




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3845   6.4     Annual Reports

3846           6.4.1       Annual Report Requirements

3847           The annual report shall be in the form of the quarterly reports and shall provide the
3848           same type of information as required pursuant to Section 6.3.3 of this Agreement,
3849           summarized for the preceding four quarters. In addition, Contractor's and Related Party
3850           Entities' annual financial reports/statements shall be included. The annual report shall
3851           also include a complete inventory of equipment used to provide all services, and a list
3852           of Contractor’s officers and members of its board of directors.
3853
3854           6.4.2       Financial Information

3855           Within one hundred twenty (120) calendar days after the close of Contractor’s fiscal
3856           year, Contractor shall deliver to the City four (4) copies of the audited consolidated
3857           financial statements and profit and loss statements of Contractor for the preceding fiscal
3858           year. Financial statements shall include a supplemental combining schedule showing
3859           Contractor's results of operations, including the specific revenues and expenses in
3860           connection with the operations provided for in this Agreement from others included in
3861           such financial statements. The financial statements and footnotes shall be prepared in
3862           accordance with Generally Accepted Accounting Principles (GAAP) consistently
3863           applied and fairly reflecting the results of operation and Contractor’s financial
3864           condition. Annual financial statements shall be audited, in accordance with Generally
3865           Accepted Auditing Standards (GAAS) by a Certified Public Accountant (CPA) licensed
3866           (in good standing) to practice public accounting in the State of California as determined
3867           by the State of California Department of Consumer Affairs Board of Accountancy, and
3868           that the CPA opinion on Contractor's annual financial statements shall be unqualified,
3869           and shall contain the CPA’s conclusions regarding the Contractor’s accounting policies
3870           and procedures, internal controls, and operating policies. The CPA shall perform an
3871           evaluation and, if necessary, shall cite recommendations for improvement.
3872
3873           6.4.3       Related Party Entities

3874           As part of the annual reporting requirement, Contractor shall provide the City with a
3875           copy of each Related Party Entity's (whose cost of services are not pre-determined in
3876           this Agreement on a unit price basis or by a governmental contractor) audited annual
3877           financial statements and management letter for that fiscal year, or within ninety (90)
3878           calendar days of each Related Party Entity's fiscal year-end, if timing does not coincide
3879           with the annual report date. Financial statements shall be prepared in accordance with
3880           GAAP and audited, in accordance with GAAS, by a CPA licensed in the State, and that
3881           the CPA's opinion on each Related Party Entity's annual financial statements shall be
3882           unqualified, and that the CPA make available to the City (or the City's designated
3883           representative) such CPA's working papers related to the audit.
3884
3885           Contractor agrees that all financial transactions with all Related Party Entities shall be
3886           approved in advance in writing and disclosed annually (coinciding with Contractor's
3887           annual audited financial statements referred to in Section 6.4.2) to the City in a separate


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3888           disclosure letter to the City.     This letter shall include, but not be limited to, the
3889           following information:
3890
3891           A.      A general description of the nature of each Related Party Entity transaction, or
3892                   type of transaction (if many similar transactions exist) shall be provided, as
3893                   applicable. Such description shall include for each (or similar) transaction,
3894                   amounts, specific Related Party Entity, basis of amount (how amount was
3895                   determined), description of the allocation methodology used to allocate any
3896                   common costs, and profit amount. Amounts shall be reconciled to the Related
3897                   Party Entity disclosures made in Contractor's annual audited financial statements
3898                   referred to in this Section.
3899
3900           B.      At the City's request, Contractor shall provide the City with copies of working
3901                   papers or other documentation deemed relevant by the Contractor relating to
3902                   information shown in the annual disclosure letter. The annual disclosure letter
3903                   shall be provided to the City within one hundred twenty (120) calendar days after
3904                   the end of the Contractor’s fiscal year.
3905
3906           6.4.4        Operational Information

3907           In addition to requirements stated elsewhere in this Agreement, the annual report shall
3908           include the following information:
3909
3910           A.      Routes by Service Type
3911
3912                   1.     Number of routes per day;
3913                   2.     Types of vehicles;
3914                   3.     Crew size per route;
3915                   4.     Number of full time equivalent (FTE) routes;
3916                   5.     Number of accounts per route;
3917                   6.     Total hours route per Service Type per year; and,
3918                   7.     Average cost per route.
3919
3920           B.      Personnel
3921
3922                   1.     Organizational chart;
3923                   2.     Job classifications and number of employees (e.g. administrative, customer
3924                          service representatives, drivers, supervisors, educational staff);
3925                   3.     Wages by job classification;
3926                   4.     Number of full time equivalents (FTE) positions for each job classification;
3927                          and,
3928                   5.     Number of hours per job classification per year.
3929
3930           C.      Productivity Statistics
3931
3932                   1.     Number of accounts per Service Type;
3933                   2.     Average number of setouts per Service Type; and,
3934                   3.     Tons per route per day.

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3935
3936           D.      Maintenance - Average cost per Service Type.
3937
3938           E.      Operational Changes
3939
3940                   1.     Number of routes;
3941                   2.     Staffing;
3942                   3.     Supervision; and,
3943                   4.     Collection services.
3944
3945           6.4.5        Historical Data (to be completed if Rates are to be determined using a
3946                        cost-based adjustment pursuant to Section 8.2)

3947           Provide the following annual historical data for each Service Type:
3948
3949                   1.     Customer levels and subscription levels;
3950                   2.     Solid Waste Tonnage;
3951                   3.     Diversion Tonnage;
3952                   4.     Gross Rate Revenues; and,
3953                   5.     Material revenues for Recyclable Materials by program type.
3954
3955           6.4.6        Variance Analysis (to be completed if Rates are to be determined using a
3956                        cost-based adjustment pursuant to Section 8.2)

3957           Provide the following variance analysis for each Service Type. For any variances
3958           greater than five percent (5%) annually, Contractor shall provide sufficient rationale to
3959           support variance.
3960
3961                   1.     Variance analysis comparing current Rate Period to each of the prior Rate
3962                          Periods of Agreement; and,
3963                   2.     Variance analysis comparing current Rate Period to each of the future
3964                          projected Rate Periods.
3965
3966           6.4.7        Allocations (to be completed if Rates are to be determined using a cost-
3967                        based adjustment pursuant to Section 8.2)

3968                   1.     Provide a concise general explanation of the various allocation
3969                          methodologies used for each Rate application line item;
3970                   2.     Provide specific examples of each type of allocation used showing how an
3971                          entry is reported in the general ledger (GL) and ties to the Rate application;
3972                          and,
3973                   3.     Provide a statement indicating whether there have been any changes in
3974                          allocation methods used since the last Rate application. If any allocation
3975                          methods have changed clearly identify those changes.
3976




       City of Livermore                                                             Franchise Agreement
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3977           6.4.8        Projections (to be completed if Rates are to be determined using a cost-
3978                        based adjustment pursuant to Section 8.2)

3979                   1.     Provide support for the basis for projected Gross Rate Revenues and line
3980                          item expenses, clearly indicate the supporting calculations and assumptions;
3981                          and,
3982                   2.     Provide support for the most-recent twelve (12) months of Tonnage data for
3983                          period ending October; clearly indicate the supporting calculations and
3984                          assumptions.
3985
3986           6.4.9        Marketing Plan

3987           Contractor shall include an updated Recyclable Materials and Compostable Materials
3988           marketing plan in its annual report for City approval as required by Sections 5.13.2.D
3989           and 5.13.3.E.
3990
3991           6.4.10       Commercial and Multi-Family Program Performance Report

3992           As part of its annual reporting requirements, Contractor shall include a Commercial and
3993           Multi-Family program performance report prepared by Cascadia Consulting Group as
3994           required by Section 5.17.8.


3995   6.5     Annual Report Required by the Act

3996           Contractor shall prepare the Annual Report required by the Act in draft form on behalf
3997           of the City as specified in Title 14, California Code of Regulations, Section 18794.
3998           Contractor shall submit a draft of the Annual Report to the City, including supporting
3999           documentation and calculations, for review no later than forty-five (45) calendar days
4000           prior to the State’s annual reporting deadline. The City shall review the draft Annual
4001           Report and may request that Contractor modify the report and/or direct Contractor to
4002           investigate any opportunities to correct possible inaccuracies in the Tonnage reflected
4003           in the California Integrated Waste Management Board’s Disposal Reporting System,
4004           and request other changes as appropriate. Contractor shall revise the Annual Report to
4005           incorporate changes requested by the City and shall submit the revised Annual Report
4006           to the City within ten (10) calendar days of receipt of the City’s comments. The City
4007           shall be responsible for submitting the revised Annual Report to the State in accordance
4008           with the State’s annual reporting deadline. In the event the Contractor does not submit
4009           the draft Annual Report or revised Annual Report in accordance with the timeline
4010           described in this Section, the Contractor shall pay the City Liquidated Damages as
4011           described in Section 11.6.


4012   6.6     Meet and Confer with City

4013           If the City requests, the Contractor shall meet with the City to describe the progress of
4014           each active Diversion program and discuss other service issues. Contractor shall


       City of Livermore                                                            Franchise Agreement
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4015           document the results of the programs on a monthly basis, including at a minimum the
4016           Tonnage diverted by material type, the end use or processor of the diverted materials
4017           and the cost per Ton for Transporting and Processing each type of material and other
4018           such information requested by the Contractor and/or City necessary to evaluate the
4019           performance of each program.
4020
4021           At each meeting, the City and Contractor shall have the opportunity to revise the
4022           program based on mutually agreed upon terms in accordance with provisions of Section
4023           8.5. The City shall have the right to terminate a program if, in its sole discretion, the
4024           Contractor is not cost effectively achieving the program’s goals and objectives. Prior to
4025           such termination, the City shall meet and confer with the Contractor for a period of up
4026           to ninety (90) calendar days to resolve the City’s concerns (“meet and confer period”).
4027           Thereafter, the City may utilize a third party to perform these services if the City
4028           reasonably believes the third party can improve on Contractor’s performance and/or
4029           cost. Notwithstanding these changes, Contractor shall continue the program during the
4030           “meet and confer period” and, thereafter, until the third party takes over the program.


4031   6.7     Right to Inspect Records

4032           The City shall have the right to inspect or review SEC 10Q filings, payroll tax reports,
4033           specific documents or records required pursuant to this Agreement, or any other similar
4034           records or reports of the Contractor that it shall deem, at its sole discretion, necessary to
4035           evaluate annual reports, Rate adjustment applications provided for in this Agreement,
4036           and the Contractor's performance provided for in this Agreement.


4037   6.8     Inspection by City

4038           The designated representatives of the City shall have the right to observe and review
4039           Contractor operations and enter Premises for the purposes of such observation and
4040           review at all reasonable hours with reasonable notice and in accordance with record
4041           keeping provisions of Section 6.2.2.C.


4042   6.9     Customer Service Program

4043           6.9.1       Office Location

4044           Contractor shall maintain a business office in the City, or such other location as the City
4045           approves, for purposes of carrying out its obligations under this Agreement, such
4046           approval not being unreasonably withheld. If the office is located outside of the City,
4047           Contractor must ensure that telephone calls to its office from locations within the City
4048           are toll free calls or are billed to Customers as "local calls" by all telephone companies.
4049



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4050           6.9.2       Office Hours

4051           Contractor's office shall be open to the public from 7 a.m. to 5 p.m. Monday through
4052           Friday. The office may be closed on Saturdays, Sundays, and Holidays (as defined in
4053           Article 1) plus Martin Luther King Day and Presidents’ Day.
4054
4055           6.9.3       Availability of Representatives

4056           The office shall be staffed with one or more Persons capable of accepting payments
4057           from Customers, answering service questions, changing Customer service levels, and
4058           resolving other Customer service issues. At a minimum, Contractor shall employ one
4059           full-time customer service manager and three full-time customer service representatives
4060           dedicated to serving the City and its Customers. A representative of the Contractor
4061           shall be available from 7 a.m. to 5 p.m. Monday through Friday to communicate with
4062           the public in person and by telephone.
4063
4064           A message machine shall be available for Persons to leave a message during non-
4065           business hours. Contractor shall return calls received during non-business hours no
4066           later than 5:00 p.m. of the following Business Day. If Contractor fails to meet the
4067           requirements described in this Section, the Contractor shall pay the City Liquidated
4068           Damages in accordance with Section 11.6.
4069
4070           Contractor shall provide City with the names and telephone numbers of contact persons
4071           available during office hours and of emergency contact persons who will be available
4072           during hours when the office is closed.
4073
4074           Customer service personnel shall maintain a log documenting each Complaint or
4075           inquiry received and listing for each entry the following: date, time, Customer name
4076           and address, description of Complaint or inquiry, and resolution of the Complaints.
4077           Copies of this log shall be made available upon City request.
4078
4079           6.9.4       Telephone

4080           Contractor shall maintain a telephone system in operation at its office from 7 a.m. to 5
4081           p.m. and shall have staff available to answer calls. Contractor shall install telephone
4082           equipment sufficient to handle the volume of calls typically experienced on the busiest
4083           days and such telephone equipment shall be capable of recording a variety of call
4084           statistics (e.g., average hold time, average talk time, dropped calls, etc.). If Persons are
4085           unable with reasonable effort to reach Contractor's office by phone, or are subject to
4086           waiting time "on hold" of more than two (2) minutes prior to reaching a customer
4087           service representative, City may require that Contractor install additional telephone
4088           lines or hire additional customer service representatives. Liquidated damages may be
4089           levied for repetitive Complaints regarding waiting time longer than two (2) minutes in
4090           accordance with Section 11.6.
4091
4092           Contractor shall maintain a special telephone hotline for Commercial Compostables
4093           Customers that will ring directly to a customer service representative that has special
4094           training and expertise in this particular program.

       City of Livermore                                                            Franchise Agreement
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4095
4096           6.9.5       Website

4097           Contractor shall develop and maintain a publically-accessible website describing
4098           services provided in the City. The site shall include: (1) a description of all Collection
4099           services and details related to their implementation, (2) answers to frequently asked
4100           questions; (3) Rates for Single-Family, Multi-Family, Commercial, and Drop
4101           Box/Compactor service; (4) Recyclable Materials and Compostable Materials Customer
4102           set-out specifications; (5) Collection service schedule and map: (6) Holidays that
4103           impact Collection service schedule and related set-out instructions, (7) ability to view
4104           and pay bills on line; (8) ability to schedule on-call Collection events, bulky item
4105           Collections, and extra/overage Collections; (9) ability to request service level/type
4106           changes, Drop Box/Compactor service, and service terminations; (10) ability to request
4107           paperless public education and outreach communications, bills, and other materials via
4108           electronic delivery; and (11) other related topics. The website shall also allow a
4109           Customer to e-mail a question, compliment, or Complaint to the Contractor and
4110           Contractor shall provide a response to e-mail inquiries or Complaints within twenty-
4111           four (24) hours of receipt. Contractor shall arrange for the City’s website to include an
4112           e-mail link to Contractor and a link to the Contractor’s website. Contractor’s website
4113           shall track web visits. Additional website requirements are specified in Exhibits C and
4114           C-1.
4115
4116           6.9.6       Customer Satisfaction Survey

4117           The City may conduct a Customer satisfaction survey every year.
4118
4119           6.9.7       Training

4120           Customer service representatives shall receive training during each quarter of the
4121           calendar year on City-specific Collection programs and service requirements. During
4122           the training, a City-specific Collection service and Rate information sheet, training
4123           agenda, and associated documentation shall be provided to and discussed with
4124           employees. Information sheet, training agenda, and associated documentation shall be
4125           forwarded by Contractor to the City each quarter after the training in accordance with
4126           quarterly reporting requirements of Section 6.3.3.D. The City may review the training
4127           materials and request changes.
4128
4129           The Contractor shall notify the City of the date and time of the scheduled Customer
4130           service training sessions (pursuant to quarterly reporting requirements of Section
4131           6.3.3.D) and the City may, at its option, attend the meetings.
4132
4133           Contractor shall also train its customer service representatives regarding the
4134           Commercial Food Scrap Program, and will conduct periodic, but at Contractor’s
4135           discretion not more than once per quarter, telephone survey programs to determine
4136           customer knowledge and satisfaction with the Program. Contractor shall provide the
4137           City with a report of any such surveys.
4138


       City of Livermore                                                          Franchise Agreement
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4139           Contractor will use customer service and outreach efforts and materials to minimize
4140           contaminants (e.g., glass and plastics).


4141   6.10    Service Complaints

4142           Contractor shall receive verbal Complaints through its Customer service center and
4143           shall have e-mail capabilities (accessible through the Contractor’s website) to enable
4144           Persons to communicate Complaints to Contractor via e-mail. Contractor shall be
4145           responsible for the prompt and courteous attention to, and prompt and reasonable
4146           resolution of, all Complaints. Contractor shall record in a separate log all Complaints,
4147           noting the name and address of complainant, date and time of Complaint, nature of
4148           Complaint, and nature and date of resolution. This Complaint log shall be retained by
4149           the Contractor for the Term and shall be made available for review upon City request.
4150           In addition, Contractor shall compile a summary statistical table of the Complaint log,
4151           satisfactory to the City, and submit the table to City each quarter.
4152
4153           Contractor shall respond to all Complaints from Generators or Customers by phone or
4154           email within twenty-four (24) hours, weekends and Holidays excluded, by informing
4155           the Customer of the action Contractor will take to remedy the Complaint or respond to
4156           the service request. In particular, if a Complaint involves a failure to Collect Solid
4157           Waste, Recyclable Materials, or Compostable Materials from a Premises (missed pick-
4158           up), required by this Agreement, Contractor shall Collect the material in question within
4159           twenty-four (24) hours of receipt of the Complaint, provided it has been delivered for
4160           Collection in accordance with the Livermore Municipal Code, Title 8, Chapter 8.08,
4161           Solid Waste Management. If Contractor fails to meet the requirements described in this
4162           Section, the Contractor shall pay the City Liquidated Damages in accordance with
4163           Section 11.6.


4164   6.11    Title to Solid Waste

4165           Once Solid Waste, Recyclable Materials, and/or Compostable Materials are placed in
4166           Containers and properly placed at the Collection location, ownership and the right to
4167           possession shall transfer directly from the Generator to Contractor by operation of this
4168           Agreement. Subject to Contractor's objective to meet the Act and Measure D Diversion
4169           goals, City goals, and City's right to direct Contractor to Process and Dispose of Solid
4170           Waste at a particular licensed Site or to Dispose of Solid Waste at a particular licensed
4171           Disposal Site, Contractor is hereby granted the right to retain, Recycle, Process,
4172           Dispose of, and otherwise use such Solid Waste, Recyclable Materials or Compostable
4173           Materials or any part thereof, in any lawful fashion or for any lawful purpose desired by
4174           Contractor. Subject to the provisions of this Agreement, Contractor shall have the right
4175           to retain any benefit resulting from its right to retain, Recycle, Process, Dispose of, or
4176           reuse the Solid Waste, Recyclable Materials or Compostable Materials which it
4177           Collects. Solid Waste, Recyclable Materials or Compostable Materials or any part
4178           thereof, which is deposited at a Disposal Site, Transformation site, Transfer Station, or


       City of Livermore                                                          Franchise Agreement
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4179           Processing Site shall become the property of the owner or operator of the facility, once
4180           deposited there by Contractor.
4181
4182           On a short-term basis not to exceed more than five (5) calendar days per year, City may
4183           obtain ownership or possession of Solid Waste, Recyclable Materials, or Compostable
4184           Materials placed for Collection upon written notice of its intent to do so, however,
4185           nothing in this Agreement shall be construed as giving rise to any inference that City
4186           has such ownership or possession unless such written notice has been given to
4187           Contractor.


4188   6.12    Non-Discrimination

4189           Contractor shall not discriminate in the provision of service or the employment of
4190           Persons engaged in performance of this Agreement on account of race, color, religion,
4191           sex, age, marital status, sexual orientation, physical handicap or medical condition in
4192           violation of any applicable federal or State law.


4193   6.13    Report of Accumulation of Solid Waste; Unauthorized Dumping

4194           Contractor shall direct its drivers to note: (1) the addresses of any Premises at which
4195           they observe that Solid Waste, Recyclable Materials or Compostable Materials is
4196           accumulating and is not being delivered for Collection; and (2) the address, or other
4197           location description, at which Solid Waste, Recyclable Materials or Compostable
4198           Materials has been dumped in an apparently unauthorized manner. Contractor shall
4199           deliver the address or description to City within five (5) working days of such
4200           observation.


4201   6.14    Administration of Service Exemption Programs

4202           Contractor shall allow for Persons that have a disability as defined by the Americans
4203           with Disabilities Act (which means Public Law 101-336, 104 Stat. 327, 42 U.S.C.
4204           12101-12213 and 27 U.S.C. 225 and 611, and all Federal rules and regulations relating
4205           thereto) that are Occupants of Single-Family Premises and Multi-Family Premises to
4206           receive Collection services at a location other than Curbside at no extra charge to the
4207           Customer. Contractor shall review all applications (which shall include statements
4208           from physicians) made by Customers to determine conformance with this exemption
4209           provision and shall grant exemptions if applicable. With regard to all requirements of
4210           this Section, the Contractor shall make reasonable accommodations with regard to
4211           provision of and servicing of Containers (e.g., Container size and type, placement of
4212           Containers for Collection, etc.) at no additional cost to the Customer.




       City of Livermore                                                         Franchise Agreement
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4213   6.15    Performance Review

4214           The City reserves the right to request a performance review annually. If City exercises
4215           its right, Contractor shall provide all information requested by City. Performance
4216           review may focus on the following, but is not limited to these items: call center
4217           performance, total Complaints, missed pick-ups Complaints; noise Complaints, contract
4218           compliance, Diversion results, Customer participation levels in Diversion programs,
4219           and public education and outreach efforts. City will conduct its evaluation and report to
4220           City Council. At City request, Contractor shall make a presentation to City Council or
4221           the City’s Environment and Energy Committee reporting the Contractor’s results.


4222   6.16    Provision of Emergency Services

4223           Contractor shall provide emergency services at the City’s request in the event of major
4224           accidents, disruptions, or natural calamities in a manner consistent with the services and
4225           procedures identified in its contingency plan required in accordance with Section 5.19.
4226           Emergency services may include, but are not limited to, assistance handling salvaged
4227           materials, Processing, Composting, or Recycling materials, or Disposing of Solid Waste
4228           following a major accident, disruption, or natural calamity. Contractor shall be capable
4229           of providing emergency services within twenty-four (24) hours of notification by the
4230           City or as soon thereafter as is reasonably practical in light of the circumstances.
4231           Emergency services, which exceed the Contractor’s obligations, shall be compensated
4232           in accordance with Section 8.4. If Contractor cannot provide the requested emergency
4233           services, the City shall have the right to take possession of the Contractor’s equipment
4234           for the purposes of providing emergency services in accordance with Article 10.


4235   6.17    Assistance to City with Code and Plan Reviews

4236           Contractor shall provide staff and time to assist the City in evaluating and revising its
4237           Municipal Code and Planning and Zoning Code requirements related to Collection of
4238           Solid Waste, Recyclable Materials, and Compostable Materials; space allocation and
4239           enclosure requirements for Containers, etc. In addition, Contractor shall provide staff
4240           with the expertise to review building plans for new Residential and Commercial
4241           development projects during the City’s permit review process to verify the
4242           reasonableness of the space allocation and enclosure design for Solid Waste, Recyclable
4243           Materials, and Compostable Materials Containers and the accessibility of such areas.
4244           For these plan reviews, the Contractor may be requested to visit the site and submit
4245           written recommendations for improvements to the design. Plan reviews shall be
4246           completed within two (2) weeks of the City’s request for such review. The City
4247           anticipates approximately five (5) to ten (10) reviews may be requested annually.
4248




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                                                                                             Page 101
4249                                 ARTICLE 7.
4250                         AGREEMENT FEE AND OTHER CITY
4251                                    FEES


4252   7.1     Agreement Fee

4253           In consideration of the exclusive rights provided Contractor herein, Contractor shall pay
4254           to City eleven percent (11%) of its Gross Rate Revenues. On a monthly basis, the
4255           Agreement Fee amount shall equal eleven percent (11%) of the Gross Rate Revenues
4256           collected by Contractor during the previous month for services provided under this
4257           Agreement. The Administrative Fee shall be paid monthly to the City in accordance
4258           with procedures and terms and conditions described in Section 7.8. This fee may be
4259           adjusted by City Council resolution.


4260   7.2     Franchise Monitoring and Enforcement Fee

4261           The Contractor shall pay the City a Franchise Monitoring and Enforcement Fee, which
4262           the City shall use to offset expenses related to contract management, compliance, and
4263           monitoring, and to enforce the franchise with respect to any violations by third parties,
4264           including initiating and/or assisting in prosecuting enforcement actions. The City shall
4265           retain the sole right to set priorities for its contract monitoring and enforcement among
4266           City personnel. This fee shall be a pass-through cost. The amount of the Franchise
4267           Monitoring and Enforcement Fee shall be $180,000 in Rate Period One. The amount of
4268           the Franchise Monitoring and Enforcement Fee for subsequent Rate Periods shall be
4269           adjusted annually using the annual percentage change in the Consumer Price Index
4270           (Urban Wage Earners and Clerical Workers) in accordance with the adjustment method
4271           described in Section 3 of the Exhibit I or Section 3 of Exhibit J, or shall be the amount
4272           specified by the City.
4273
4274           Except as expressly provided below, during the Term of this Agreement and any
4275           extension of it, Contractor shall remit one-twelfth (1/12) of the total annual Franchise
4276           Monitoring and Enforcement Fee to the City each month in accordance with procedures
4277           and terms and conditions described in Section 7.8.


4278   7.3     Street Sweeping Services Fee

4279           The City considers street sweeping a necessary component of Solid Waste management,
4280           necessary for the public health, safety, and welfare as well as for aesthetic purposes.
4281           Pursuant to Chapter 8.08, Article IX of the Solid Waste Management Section of the
4282           Livermore Municipal Code, the City is authorized to establish a fee for street sweeping
4283           purposes. For Rate Period One, Contractor shall pay a Street Sweeping Services Fee to
4284           the City each month equal to $36,750, which totals $441,000 annually. The amount of

       City of Livermore                                                         Franchise Agreement
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4285           the Street Sweeping Services Fee for subsequent Rate Periods shall be adjusted
4286           annually using the annual percentage change in the Consumer Price Index (Urban Wage
4287           Earners and Clerical Workers) in accordance with the adjustment method described in
4288           Section 3 of the Exhibit I or Section 3 of Exhibit J, or shall be the amount specified by
4289           the City. Contractor shall send the collected fee to the City on a monthly basis in
4290           accordance with procedures and terms and conditions described in Section 7.8.


4291   7.4     Rate Review and Performance Review Fee

4292           The City considers the Rate review and performance review process to be extremely
4293           complex requiring a contract with a consultant in order to provide the best review
4294           possible of the Contractor Rate adjustment application resulting in adjustment of Rates
4295           consistent with the terms of this Agreement. Two types of Rate reviews will be
4296           conducted (an indexed-based adjustment and a cost-based adjustment as described in
4297           Article 8), depending on the Rate Period. The City may conduct performance reviews
4298           and plans to request assistance from a consultant to assess the Contractor’s performance
4299           including, but not limited to, the Contractor’s performance with regard to Customer
4300           service, Complaints, contract compliance, Diversion results, Customer participation
4301           levels in Diversion programs, and public education and outreach efforts.
4302
4303           For Rate Period One, the Rate Review and Performance Review Fee shall be $0
4304           annually. The amount of the Rate Review and Performance Review Fee for subsequent
4305           Rate Periods shall be specified by the City and upon City direction the fee shall be
4306           adjusted annually using the annual percentage change in the Consumer Price Index
4307           (Urban Wage Earners and Clerical Workers) in accordance with the adjustment method
4308           described in Section 3 of the Exhibit I or Section 3 of Exhibit J. If the City specifies a
4309           Rate Review and Performance Review Fee, Contractor shall send the collected fee to
4310           the City on a monthly basis in accordance with procedures and terms and conditions
4311           described in Section 7.8.


4312   7.5     Vehicle Impact Fee

4313           Contractor shall pay a Vehicle Impact Fee to the City each month equal to $69,833,
4314           which equal $838,000 annually. This fee is to reimburse the City for street maintenance
4315           costs incurred because of Collection Vehicles traveling on City streets.
4316
4317           The Vehicle Impact Fee shall be adjusted annually using the annual percentage change
4318           in the Consumer Price Index (All Urban Consumers) in accordance with the adjustment
4319           method described for Vehicle-Related Costs in Section 3.A.2 of the Exhibit I or Section
4320           3.A.3.b of Exhibit J, or shall be the amount specified by the City. Contractor shall send
4321           the collected fee to the City on a monthly basis in accordance with procedures and
4322           terms and conditions described in Section 7.8.




       City of Livermore                                                          Franchise Agreement
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4323   7.6     Neighborhood Preservation Fee

4324           The Neighborhood Preservation section of the City’s Community Development
4325           Department assists to enforce the City’s Municipal Code as it applies to property
4326           maintenance, property nuisances and other issues in Residential and Commercial zoning
4327           districts. The Neighborhood Preservation staff works closely with all City departments
4328           in order to resolve health, safety, and public nuisance problems that may adversely
4329           affect the quality of life for citizens of the City.
4330
4331           For Rate Period One, Contractor shall pay a Neighborhood Preservation Fee to the City
4332           each month equal to $11,667, which totals $140,000 annually. The amount of the Rate
4333           Neighborhood Preservation Fee for subsequent Rate Periods shall be adjusted annually
4334           using the annual percentage change in the Consumer Price Index (Urban Wage Earners
4335           and Clerical Workers) in accordance with the adjustment method described in Section 3
4336           of the Exhibit I or Section 3 of Exhibit J, or shall be the amount specified by the City.
4337           Contractor shall send the collected fee to the City on a monthly basis in accordance
4338           with procedures and terms and conditions described in Section 7.8.


4339   7.7     Other Fees

4340           The City shall reserve the right to set other fees as it deems necessary, subject to City
4341           Council approval. The time and method of payment shall be in accordance with
4342           procedures in Section 7.8, and the fee adjustment process, which uses a consumer
4343           price index, shall be consistent with that specified in Section 7.6.


4344   7.8     Procedures for Monthly Submittal of Fees

4345           On or before the twentieth (20th) day of each month during the Term of this Agreement,
4346           Contractor shall remit to City the fees due in accordance with this Section. If the fees
4347           are not paid on or before the twentieth (20th) day of any month, Contractor shall pay in
4348           addition to the amount owed to City a late payment penalty in an amount equal to two
4349           percent (2%) of the amount owing for that month. Contractor shall pay an additional
4350           two percent (2%) owing on any unpaid balance for each following thirty (30) calendar
4351           day period the fee remains unpaid. Late payment penalty amounts shall not be
4352           reimbursed to Contractor. The late payment penalty amounts are not intended as
4353           interest on debt, but rather are intended as a predetermined penalty for failure to meet
4354           an obligation under this Agreement.
4355
4356           Each monthly remittance to City shall be accompanied by a statement detailing Gross
4357           Rate Revenues for the period covered from all operations conducted or permitted
4358           pursuant to this Agreement. This monthly statement shall identify billed revenues and
4359           actual Gross Rate Revenues received listed separately for Single-Family, Multi-Family,
4360           Commercial, and Drop Box/Compactor Customers. In addition, Contractor shall
4361           maintain copies of all Billing and collection records for five (5) years, following the


       City of Livermore                                                         Franchise Agreement
                                                                                            Page 104
4362           expiration or earlier termination of this Agreement, for inspection and verification by
4363           City at any reasonable time upon request.
4364
4365           Contractor is obligated to pay all City fees (identified on the Commencement Date in
4366           this Article 7 and any new City fees established in accordance with Section 7.7) to the
4367           City in accordance with procedures described in Section 7.8. Such payments shall be
4368           due to City regardless of the actual Contractor Compensation and regardless of the
4369           amount of the actual Gross Rate Revenues received by the Contractor.


4370   7.9     Adjustment to Fees

4371           City may adjust the amount of the fees at any time. Such adjustment shall warrant a
4372           Special Rate Review in accordance with Section 8.4 to adjust City-approved Rates to
4373           reflect the changes in the amount of the fees. In the event Contractor is requested to pay
4374           increased City fees before the Special Rate Review process is completed, Contractor
4375           would receive retroactive compensation for payment of any increased fees before the
4376           corresponding Rate increase takes effect.
4377

4378                                   ARTICLE 8.
4379                           CONTRACTOR'S COMPENSATION


4380   8.1     Overview

4381           The Contractor’s Compensation for performance of all its obligations under this
4382           Agreement shall be Gross Rate Revenues. Contractor's Compensation provided for in
4383           this Article shall be the full, entire and complete compensation due to Contractor
4384           pursuant to this Agreement for all labor, equipment, materials and supplies, Processing
4385           and Disposal fees, fees due to City, taxes, insurance, bonds, overhead, operations, profit
4386           and all other things necessary to perform all the services required by this Agreement in
4387           the manner and at the times prescribed.
4388
4389           If Contractor’s actual costs, including fees due to City, are more than Gross Rate
4390           Revenues, Contractor shall not be compensated for the difference in actual costs and
4391           actual Gross Rate Revenues. If Contractor’s actual costs are less than the actual Gross
4392           Rate Revenues, Contractor shall retain the difference provided that Contractor has paid
4393           City fees pursuant to Article 7.
4394
4395           Under this Agreement, Contractor shall have the right and obligation to charge and
4396           collect from Customers, Rates in Exhibit H that are approved by the City for provision
4397           of services to Customers.
4398


       City of Livermore                                                          Franchise Agreement
                                                                                             Page 105
4399           The Rates for Rate Period One are based on the Contractor’s Proposal. Contractor’s
4400           proposed costs and operating assumptions for Rate Period One are presented in Exhibit
4401           G. Rates for subsequent Rate Periods shall be adjusted annually in accordance with
4402           Section 8.2 using an index-based adjustment method that involves adjustments using
4403           various cost indices and adjustments to Disposal and Processing costs to reflect actual
4404           Tonnage. Either Party may request that Rates for Rate Period Four and/or Rate Period
4405           Eight be adjusted using a cost-based methodology that involves a review of
4406           Contractor’s actual costs and projection of cost for the coming Rate Period. The option
4407           to request a cost-based adjustment process twice during the Term of the Agreement is
4408           intended to provide the Parties an opportunity to adjust Rates to more accurately reflect
4409           actual costs of operations if the cost indices are not tracking with actual changes in
4410           costs.


4411   8.2     Rate-Setting Process

4412           A.    General. The City shall be responsible for approving Rates as described in this
4413                 Article. If at any time during the Term of the Agreement, the Contractor
4414                 determines the need for a Rate that does not appear on the City-approved Rate
4415                 schedule in Exhibit H, Contractor shall immediately notify the City and request
4416                 establishment of such Rate. For example, if a Customer requires Collection of a
4417                 fifteen (15) cubic yard Compactor five (5) times per week and the City-approved
4418                 Rate schedule does not include this level of service, the Contractor must request
4419                 that the City approve a Rate for this level of service.
4420
4421           B.    Rates for Rate Period One. Rates for Rate Period One, which are presented in
4422                 Exhibit H, were determined by Contractor and City and were approved by City
4423                 Council resolution on or before the execution of the Agreement. The Rates for
4424                 Rate Period One are effective July 1, 2010 through June 30, 2011. Rates for Rate
4425                 Period One, as per Exhibit H, shall not be adjusted to reflect either increases or
4426                 decreases in costs from those anticipated by Contractor.
4427
4428           C.    Annual Adjustment Process. The Rates shall be adjusted annually, with City
4429                 Council approval, commencing July 1, 2012 through the remaining Term of this
4430                 Agreement including any extension periods. The adjustments to Rates shall be
4431                 determined using one of two methodologies: (1) an index-based adjustment, or
4432                 (2) cost-based adjustment. The index-based adjustment, which is described in
4433                 Exhibit I, involves use of various cost adjustment factors (such as the percentage
4434                 change in the consumer price index and percentage change in the Approved
4435                 Disposal Site tipping fee) to calculate adjusted Rates. The cost-based adjustment,
4436                 which is described in Exhibit J, involves a detailed review of the Contractor’s
4437                 actual costs of service and determination of adjusted Rates to reflect Contractor’s
4438                 projected costs. The cost-based adjustment shall not exceed a nine percent (9%)
4439                 increase in Rates. The cost-based adjustment process will only be used to adjust
4440                 Rates if the City or Contractor requests that this methodology be used to
4441                 determine Rates for Rate Periods Four and/or Eight. The following table specifies
4442                 when the two Rate adjustment methods shall be used.

       City of Livermore                                                         Franchise Agreement
                                                                                            Page 106
4443
                 Rate            Commencement      Adjustment Method Used to           Rate Adjustment
                Period            Date of Rate     Determine Rates for the Rate      Application Submittal
                                     Period                   Period                         Date
                     1            July 1, 2010            Not Applicable;              Not Applicable
                                                    Rates specified in Exhibit H
                     2            July 1, 2011             Index-Based                       January 1, 2011
                     3            July 1, 2012             Index-Based                       January 1, 2012
                     4            July 1, 2013    Index-Based unless one Party         For Cost-Based: Notice
                                                       requests Cost-Based              by September 1, 2012;
                                                                                      Application by December
                                                                                          1, 2012; For Index-
                                                                                                 Based:
                                                                                       Application by January
                                                                                                 1, 2013
                      5         July 1, 2014                 Index-Based                     January 1, 2014
                      6         July 1, 2015                 Index-Based                     January 1, 2015
                      7         July 1, 2016                 Index-Based                     January 1, 2016
                      8         July 1, 2017       Index-Based unless one Party        For Cost-Based: Notice
                                                         requests Cost-Based            by September 1, 2016;
                                                                                      Application by December
                                                                                                1, 2016;
                                                                                           For Index-Based:
                                                                                       Application by January
                                                                                                 1, 2017
                      9         July 1, 2018                 Index-Based                     January 1, 2018
                     10         July 1, 2019                 Index-Based                     January 1, 2019
                    11*         July 1, 2020                 Index-Based                     January 1, 2020
                    12*         July 1, 2021                 Index-Based                     January 1, 2021
                    13*         July 1, 2022                 Index-Based                     January 1, 2022
4444                    *Applicable only if the Term is extended pursuant to Section 3.4.
4445
4446
4447           D.        Rate Structure. The City shall have the sole and exclusive right to change the
4448                     relationship of individual Rates in comparison with other Rates as City deems
4449                     appropriate. Any such changes would occur in conjunction with the annual Rate
4450                     adjustment process described in Section 8.2.C or in conjunction with a Rate
4451                     adjustment resulting from a Special Rate Review in accordance with Section 8.4.


4452   8.3     Rate Application Process

4453           A.             Application Date and Content

4454                     1.     Index-Based Rate Adjustment Methodology. On January 1, prior to the
4455                            commencement of the Rate Period for which Rates are to be determined


       City of Livermore                                                              Franchise Agreement
                                                                                                 Page 107
4456                       using the index-based Rate adjustment method (coming Rate Period),
4457                       Contractor shall submit at least three (3) copies of its application requesting
4458                       the Rate adjustment for the coming Rate Period. For example, on January
4459                       1, 2012, the Contractor shall submit three copies of its application for the
4460                       Rate Adjustment to be effective for Rate Period Three. The application
4461                       shall present the calculations of the annual percentage change in various
4462                       cost indices, total calculated annual costs for the Rate Period, the Rate
4463                       adjustment factor, annual revenues and per-Ton revenues from the sale of
4464                       Recyclables Materials, annual average residue level at the Approved
4465                       Recyclables Processing Site, and all supporting documentation for the
4466                       calculations including a copy of the Collective Bargaining Agreement(s)
4467                       currently in effect and reports on revenues from the sale of Recyclable
4468                       Materials.
4469
4470                       The application shall also present the Rates for the then-current Rate Period
4471                       (e.g., Rate Period Two) and the proposed Rates for the coming Rate Period
4472                       (e.g., Rate Period Three). The application for Rate Period Three Rates
4473                       (submitted in Rate Period Two) shall also include documentation
4474                       supporting the revenue reconciliation adjustment pursuant to Section 8.7
4475                       and Section 3.G of Exhibit I including, but not limited to, audited financial
4476                       statements, general ledger reports, Customer account data, and other
4477                       documentation needed to verify the accuracy of the reported Gross Rate
4478                       Revenues for the 18-month period from July 1, 2010 through December 31,
4479                       2011.
4480
4481                 2.    Cost-Based Rate Adjustment Methodology. If either Party elects to
4482                       exercise its right to request that Rates be determined using the cost-based
4483                       adjustment process for Rate Periods Four and/or Eight, such Party shall
4484                       provide a written notice to the other Party indicating its request for the cost-
4485                       based adjustment method on or before September 1, 2012 for Rate Period
4486                       Four or September 1, 2016 for Rate Period Eight. The written notice shall
4487                       include a description of the reasons the Party is choosing the cost-based
4488                       adjustment. This advanced noticing period is necessary as the Contractor
4489                       will need sufficient time to prepare its Rate application for submittal on
4490                       December 1.
4491
4492                       On December 1, prior to the commencement of the Rate Period for which
4493                       Rates are to be determined using the cost-based Rate adjustment method,
4494                       Contractor shall submit three (3) copies of its application requesting the
4495                       Rate adjustment for the coming Rate Period. For example, on December 1,
4496                       2012, the Contractor shall submit its application for the Rate Adjustment to
4497                       be effective for Rate Period Four.
4498
4499                       The application shall present the Contractor's actual total annual cost of
4500                       operations, revenues from the sale of Recyclable Materials, average annual
4501                       residue level of the Approved Recyclables Processing Site, profit, pass-
4502                       through costs, City fees, the actual total annual costs for the most-recently


       City of Livermore                                                            Franchise Agreement
                                                                                               Page 108
4503                       completed Rate Period and forecast of the same cost items for the coming
4504                       Rate Period in accordance with the procedures described in Exhibit J.
4505                       Contractor shall assemble, provide, and submit such information that is
4506                       necessary to support the actual costs presented and the calculation of the
4507                       assumptions made by Contractor with regard to forecasting the total annual
4508                       cost of operations, profit, pass-through costs, City fees, and the total annual
4509                       costs for the coming Rate Period. Such documentation shall include, but
4510                       not be limited to: calculations of the annual percentage change in various
4511                       cost indices, annual revenues and per-Ton revenues from the sale of
4512                       Recyclables Materials, monthly residue Tonnage reports for the Approved
4513                       Recyclables Processing Site, and a copy of the Collective Bargaining
4514                       Agreement(s) currently in effect. The actual costs shall be based on the
4515                       financial statements for the most-recently-completed Rate Period, which
4516                       shall be submitted in accordance with requirements of Section 6.4.2. In
4517                       addition, the application shall present the Contractor’s calculation of the
4518                       Rate Adjustment factor, present each Rate for the then-current Rate Period,
4519                       and each proposed Rate for the coming Rate Period. Lastly, the application
4520                       shall include operational data listed in Section 6.4.4.
4521
4522                       If the City requests additional information beyond that provided by the
4523                       Contractor in its application, the Contractor shall provide all information
4524                       requested by the City during its review of the application, including, but not
4525                       limited to, all information from Related-Party Entities requested by the City
4526                       regarding any transactions between Contractor and any Related-Party Entity
4527                       pertaining to Contractor's performance under this Agreement.
4528
4529           B.    City Review of Application. The Contractor’s Rate application shall be
4530                 reviewed by the City. The City Council shall adjust Rates to reflect the
4531                 adjustments made in accordance with Exhibits I or J depending on the method
4532                 used to adjust the Rates that are being approved. The City Council shall act in
4533                 good faith to approve such Rate adjustments by July 1 of the Rate Period. The
4534                 adjusted Rates shall not take effect until the City Council has approved such
4535                 Rates.
4536
4537           C.    Failure to Adjust Rates by July 1. If the Contractor submits its Rate application
4538                 on or before the Rate application date identified in Sections 8.3.A or 8.3.B, and
4539                 the City does not approve adjusted Rates to be effective on or before July 1 of a
4540                 Rate Period, the City shall include a surcharge on the Rates that shall be effective
4541                 for the remainder of the Rate Period to recover Gross Rate Revenues lost by the
4542                 Contractor, if any. To determine the amount of lost revenues, if any, the City and
4543                 Contractor shall meet and confer to determine the effect the delay in adopting
4544                 Rates has on the Contractor’s Gross Rate Revenue. The assessment of the
4545                 revenue impact shall consider the Contractor’s billing cycle (e.g., impact to
4546                 Customers billed in advance and to Customers billed in arrears), the ability of
4547                 Contractor to delay issuance of bills, the payment cycle of Customers, and other
4548                 variables.
4549


       City of Livermore                                                           Franchise Agreement
                                                                                              Page 109
4550                 If the Contractor does not submit the application on or before the Rate application
4551                 date identified in Sections 8.3.A or 8.3.B, adjusted Rates may not be approved by
4552                 July 1. In such case, all Rates shall be adjusted as soon as practical following
4553                 approval by the City Council. If the Contractor does not submit the application
4554                 by the Rate application date identified in Sections 8.3.A or 8.3.B, no retroactive
4555                 adjustment will be made to allow the Contractor to recover Gross Rate Revenues
4556                 that it would have collected, had the Rate adjustment been implemented in
4557                 accordance with the prescribed schedule.

4558                 With regard to review of records of Related Party Entities, City review shall be
4559                 related to transactions between Contractor and any Related-Party Entity
4560                 pertaining to Contractor's performance under this Agreement.


4561   8.4     Special Rate Review

4562           A.    Eligible Items. The Contractor is entitled to apply to the City for consideration
4563                 of a special Rate review, or the City may initiate such a review, should one or
4564                 more of the following events occur and should such occurrence(s) have a material
4565                 effect totaling two percent (2%) or more annually on the total calculated annual
4566                 costs for the then-current Rate Period. If one or more of the following events
4567                 occur and should such occurrence(s) have a material effect less than two percent
4568                 (2%) annually of the total calculated annual costs for the then-current Rate
4569                 Period, such cost impact shall be considered at the time the annual Rate
4570                 adjustment process is performed in accordance with Section 8.2, and Contractor
4571                 may be compensated retroactively for such cost subject to City approval.
4572
4573                 1.    Documented significant changes in the cost to provide services required in
4574                       this Agreement as a result of an agreed-upon, City-directed change in
4575                       scope, as provided for under Section 4.3.
4576                 2.    Provision of emergency services pursuant to Section 6.16.
4577                 3.    Flood, earthquake, other acts of nature, war, civil insurrection, riots, acts of
4578                       any government agency (including judicial action), or other similar
4579                       catastrophic events that are beyond the control of and not the fault of the
4580                       Contractor.
4581                 4.    Change in Law, including, but not limited to, Changes in Law that result in
4582                       regulatory, governmental, or other surcharge fees, after the Effective Date
4583                       that: (1) were not reasonably known to the Contractor before the Effective
4584                       Date, and (2) the Contractor substantiates.
4585                 5.    Per-Ton Disposal cost increases at the Approved Disposal Site above those
4586                       reflected in the Disposal cost determined during the annual Rate adjustment
4587                       process performed in accordance with Section 8.2.
4588                 6.    Gross Rate Revenues from Commercial Customers (including Cart, Bin,
4589                       and Drop Box/Compactor Customers) for the most-recently completed Rate
4590                       Period are five percent (5%) less than the prior Rate Period. Parties agree
4591                       that this condition shall not be considered an eligible item in the following
4592                       conditions: (i) if Rate Period One Gross Rate Revenues for Commercial

       City of Livermore                                                            Franchise Agreement
                                                                                               Page 110
4593                       Customers are different than anticipated (as Section 8.7 addresses revenue
4594                       shortfalls related to Rate Period One); or, (ii) if Rate Period Three or Rate
4595                       Period Seven Gross Rate Revenues for Commercial Customers are less than
4596                       the prior Rate Periods (as the Contractor can request initiation of a cost-
4597                       based rate adjustment in accordance with Section 8.2 and such adjustment
4598                       will take into consideration changes in Gross Rate Revenues in accordance
4599                       with Exhibit J). When considering Gross Rate Revenues shortfalls, grant
4600                       monies (if any) received for CNG vehicles, as described in Section 5.15.8,
4601                       shall be used to offset some or all of the Gross Rate Revenues up to the
4602                       amount of the grant monies.
4603
4604           B.    Ineligible Items. A special Rate review may not be initiated for the following
4605                 items and Contractor shall not be compensated for such items over the Term of
4606                 the Agreement unless the City and Contractor agree to an adjustment during a
4607                 cost-based adjustment process when determining Rates for Rate Periods Four and
4608                 Eight.
4609
4610                 1.    Increases in the cost of Solid Waste, Recyclable Materials, or Compostable
4611                       Materials Collection, Transportation, Processing, or Disposal costs in
4612                       excess of the increases provided through the annual adjustment mechanism
4613                       described in Exhibits I and J unless cost increases are related to eligible
4614                       items listed in Section 8.4.A above.
4615                 2.    Increases in the cost of Solid Waste, Recyclable Materials, or Compostable
4616                       Materials Collection, Transportation, Processing, or Disposal costs that may
4617                       be impacted by change in Approved Disposal Site, Approved Recyclables
4618                       Processing Site, or Approved Composting Site operating conditions, unless
4619                       such change is initiated by or at the direction of the City.
4620                 3.    Decreases in Revenues from the sale of Recyclable Materials or
4621                       Compostable Materials except as provided in Exhibits I and J.
4622                 4.    Growth or decline in the number of Customers or their subscription levels;
4623                       however, the Contractor shall be entitled to bill all Customers at the City-
4624                       approved Rates and retain all Gross Rate Revenues (net fees due to City)
4625                       collected from its Customers for Collection services provided under this
4626                       Agreement with the exception of the one-time adjustment for Gross Rate
4627                       Revenues in accordance with Section 8.7 and procedures described in
4628                       Section 3.G of Exhibit I.
4629                 5.    Changes in the number of accounts related to Container sizes or frequency
4630                       of Collection; however, the Contractor shall be entitled to bill all Customers
4631                       at the City-approved Rates and retain all Gross Rate Revenues (net fees due
4632                       to City) collected from Contractor’s Customers for Collection services
4633                       provided under this Agreement with the exception of the one-time
4634                       adjustment for revenues in accordance with Section 8.7 and procedures
4635                       described in Section 3.G of Exhibit I.
4636                 6.    Change in the Tonnage or composition of Solid Waste, Recyclable
4637                       Materials, or Compostable Materials with the exception that changes in
4638                       Tonnage shall be reflected in calculated Disposal and Processing Costs in
4639                       accordance with procedures in Exhibits I and J.


       City of Livermore                                                          Franchise Agreement
                                                                                             Page 111
4640
4641           C.    Review of Costs. If the Contractor or the City requests a special Rate review, the
4642                 City shall have the right to review any or all financial and operating records of
4643                 Contractor and Related-Party Entities.
4644
4645           D.    Submittal of Request. If the Contractor is requesting a special Rate review, the
4646                 Contractor must submit its request for a special review of Rates, and cost and
4647                 operational data, in a form and manner specified by the City, at least six (6)
4648                 months before the proposed effective date of any Rate adjustment. The City may
4649                 waive the six-month submittal requirement if the reason for the special Rate
4650                 review is a Change in Law that will become effective in less than a six (6) month
4651                 period.
4652
4653                 If City is requesting a special Rate review, the City shall notify the Contractor at
4654                 least seven (7) months before the proposed effective date of any Rate adjustment.
4655                 Upon such notification, Contractor shall, within thirty (30) calendar days, submit
4656                 reasonable cost and operational data as requested by the City, in a form and
4657                 manner specified by the City.
4658
4659                 A request for special Rate review shall include a proposal on whether the Rate
4660                 adjustment resulting from the special Rate review shall be an adjustment in
4661                 addition to or in lieu of the annual Rate adjustment to be performed in accordance
4662                 with Section 8.2.C above.
4663
4664           E.    Burden of Justification. Contractor shall bear the burden of justifying to the
4665                 City by substantial evidence any entitlement to current, as well as increased,
4666                 Rates under this Section 8.4. If the City determines that the Contractor has not
4667                 met its burden, the Contractor may request a meeting with City staff and the City
4668                 Manager to produce additional evidence. Upon such request, the City shall
4669                 permit said additional hearing. In the event the City denies Contractor’s request,
4670                 Contractor shall have the right to present its claim in a court of competent
4671                 jurisdiction.
4672
4673           F.    Grant of Request. Based on evidence the Contractor submits, the City Council
4674                 may grant some, all, or none of the requested increase and approve adjusted
4675                 Rates.
4676
4677           G.    Compensation. If Contractor requests the special Rate review, Contractor shall
4678                 bear all reasonable costs of both Parties for participating in such review up to a
4679                 maximum of $25,000 per Party and such costs shall not be reimbursed through
4680                 Rates charged Customers. If a special Rate review occurs in response to a City-
4681                 directed change in scope (pursuant to Section 8.4.A.1), the City shall be
4682                 considered the Party requesting the special Rate review and the City’s costs of the
4683                 review may be reimbursed through the Rates.




       City of Livermore                                                          Franchise Agreement
                                                                                             Page 112
4684   8.5     Rates for Changes in Scope

4685           In the event either the City or Contractor requests a change in scope in accordance with
4686           Section 4.3 of this Agreement, the Contractor shall furnish the City with projected
4687           operational and cost data for the change in scope to support any adjustment to Rates.
4688           For the purposes of analyzing cost impacts of changes in scope, the Contractor’s profit
4689           shall be calculated using an operating ratio of 0.90 of actual reasonable and necessary
4690           costs net of Disposal expenses and City fees specified in Article 7. The City reserves
4691           the right to require that the Contractor supply any additional cost data or other
4692           information it may reasonably need to ascertain the appropriate Rate adjustment, if any,
4693           for the change in scope. The City shall review this operational and cost data, and the
4694           City Council shall approve Rates for the change in scope, if warranted.
4695
4696           The granting of any change in scope shall be contingent upon City’s written approval
4697           and establishment of new Rates. The City shall approve Rates adjustments, in good
4698           faith, coincident with any adjustment made pursuant to this Section so that the change
4699           in scope and the corresponding Rates become effective on the same date.


4700   8.6     Notice of Rate Adjustments

4701           The Contractor shall provide all Customers with advance written notice of approved
4702           Rate changes, in the form of a bill insert, postcard, or other written notice approved by
4703           the City at least forty-five (45) calendar days before the effective date of such changes
4704           unless the City provides written approval to waive this requirement.


4705   8.7     One-Time Revenue Reconciliation

4706           When Contractor finalized its Total Proposed Costs for Rate Period One and Customer
4707           Rates for Rate Period One (Exhibits G and H, respectively), Contractor estimated Gross
4708           Rate Revenues of $19,239,494 for Rate Period One, which equates to $28,859,240 for
4709           the first 18-month period of the Term and $38,478,989 for Rate Periods One and Two
4710           combined.     The 18-month and 24-month projection does not reflect a Rate
4711           increase/decrease that would go into effect on July 1, 2011 at the commencement of
4712           Rate Period Two. If actual Gross Rate Revenues as reported for the initial 18 months of
4713           the Term (from July 1, 2010 through December 31, 2011) are greater than or less than
4714           $28,859,240 anticipated for such period adjusted to reflect the July 1, 2011 Rate
4715           increase/decrease (e.g., $19,239,494 + [$19,239,494 / 12 x 6 x (1 + July 1, 2011 rate
4716           increase/decrease)]), then Contractor’s Total Calculated Costs for Rate Period Three
4717           shall be adjusted (increased or decreased) by the difference between the actual
4718           estimated Gross Rate Revenues and the anticipated $28,859,240 for Rate Periods One
4719           and Two adjusted to reflect the July 1, 2011 Rate increase/decrease (e.g., $19,239,494 +
4720           [$19,239,494 x (1 + July 1, 2011 rate increase/decrease)]). In the event Gross Rate
4721           Revenues are less than anticipated, the City reserves the right to recover the shortfall
4722           over two Rate Periods by adjusting Contractor’s Total Calculated Costs for Rate


       City of Livermore                                                         Franchise Agreement
                                                                                            Page 113
4723           Periods Three and Four. The Contractor’s Total Calculated Costs are the basis for
4724           determining Rates in accordance with Exhibits I and J. When considering the revenue
4725           reconciliation, grant monies (if any) received for CNG vehicles, as described in Section
4726           5.15.8, shall be used to some or all of the Gross Rate Revenues up to the amount of the
4727           grant monies.
4728
4729           For example, if Contractor’s actual Gross Rate Revenues for the Rate Periods One and
4730           Two are estimated (based on 18 months of actual Gross Rate Revenues from July 1,
4731           2010 through December 31, 2011) to be $100,000 higher than the Gross Rate Revenues
4732           anticipated for Rate Periods One and Two, then Contractor's Total Calculated Costs for
4733           the Rate Period Three shall be decreased by $100,000. On the other hand, if
4734           Contractor’s actual Gross Rate Revenue for the Rate Periods One and Two are
4735           estimated (based on 18 months of actual Gross Rate Revenues from July 1, 2010
4736           through December 31, 2011) to be $100,000 less the Gross Rate Revenues anticipated
4737           for Rate Periods One and Two, then Contractor's Total Calculated Costs for the Rate
4738           Period Three shall be increased by $100,000.
4739
4740           In the event the Contractor charged Customers Rates less than the City-approved Rates
4741           and the actual Gross Rate Revenues do not generate sufficient revenues, Contractor’s
4742           Total Calculated Costs for Rate Period Three shall be increased by the amount of the
4743           revenue shortfall less the amount attributable to charging Rates less than the City-
4744           approved Rates.
4745
4746           The revenue reconciliation process shall occur as part of the Rate adjustment process
4747           for Rate Period Three, as described in Section 3.G of Exhibit I.
4748

4749                                    ARTICLE 9.
4750                            INDEMNITY, INSURANCE, BOND


4751   9.1     Hazardous Substance Indemnification

4752           Contractor shall indemnify, defend with counsel acceptable to the City (provided that
4753           such acceptance by City shall not be unreasonably withheld), protect and hold harmless
4754           the City, its officers, employees, volunteers, and agents (collectively, indemnitees) from
4755           and against all claims, damages (including but not limited to special, consequential,
4756           natural resources and punitive damages), injuries, costs, (including without limit any
4757           and all response, remediation and removal costs), losses, demands, debts, liens,
4758           liabilities, causes of action, suits, legal or administrative proceedings, interest, fines,
4759           charges, penalties, and expenses (including without limit attorneys’ expert witness fees
4760           and costs incurred in connection with defending against any of the foregoing or in
4761           enforcing this indemnity), (collectively, “Damages”) of any kind whatsoever paid,
4762           incurred or suffered by, or asserted against, indemnitees arising from or attributable to
4763           the acts or omissions of Contractor whether or not negligent or otherwise culpable, in


       City of Livermore                                                           Franchise Agreement
                                                                                              Page 114
4764           connection with or related to the performance of this Agreement, including without
4765           limit damages arising from or attributable to any operations, repair, cleanup or
4766           detoxification, or other plan (regardless of whether undertaken due to governmental
4767           action) concerning any Hazardous Substance or Hazardous Waste, Collected under this
4768           Agreement. Notwithstanding the foregoing, however, Contractor shall not be required
4769           to indemnify the City for the costs for any claims arising from the Disposal of Solid
4770           Waste at the Approved Disposal Site, including, but not limited to, claims arising under
4771           the Comprehensive Environmental Response, Comprehensive and Liability Act
4772           (CERCLA) unless such Disposal Site is at a facility owned and operated by Contractor
4773           or such claim is a direct result of Contractor’s negligent actions. This indemnity
4774           afforded indemnitees, shall only be limited to exclude coverage for intentional wrongful
4775           acts and negligence of indemnitees, and as provided below. In the event Disposal
4776           occurs at a Disposal Site owned by the Contractor, Contractor shall be required to
4777           indemnify the City for the costs for any claims arising from the Disposal of Solid Waste
4778           at the Disposal Site, including, but not limited to, claims arising under the
4779           Comprehensive Environmental Response, Comprehensive and Liability Act
4780           (CERCLA). The forgoing indemnity, as it relates to the Collection of Solid Waste
4781           and/or the Disposal of Solid Waste at Contractor’s Disposal Site, is intended to operate
4782           as an Agreement pursuant to §107(e) of the Comprehensive Environmental Response,
4783           Compensation and Liability Act, CERCLA, 42 USC. §9607(e) and California Health
4784           and Safety Code §25364, to defend, protect, hold harmless, and indemnify City from
4785           liability.
4786
4787           This provision is in addition to all other provisions in this Agreement and is intended to
4788           survive the expiration or earlier termination of this Agreement. Nothing in this
4789           paragraph shall prevent City from seeking indemnification or contribution from Persons
4790           or entities other than indemnitees, for any liabilities incurred by City, or the
4791           indemnitees.


4792   9.2     AB 939 Indemnification

4793           In addition to all other relief provided Contractor and City under this Agreement,
4794           Contractor agrees to defend, indemnify, and hold harmless, the City, its officers,
4795           employees, volunteers, and agents from and against all fines and/or penalties imposed
4796           by the California Integrated Waste Management Board for operations during the Term
4797           of this Agreement in the event the source reduction and Recycling goals or any other
4798           requirement of the Act are not met by the Contractor with respect to the waste stream
4799           Collected by Contractor under this Agreement and such failure is due to the failure of
4800           Contractor to meet its obligations under this Agreement unless Contractor can
4801           demonstrate to the satisfaction of the City that such failure is beyond Contractor’s
4802           ability to control or effect, or due to Contractor delays in providing information that
4803           prevents Contractor or City from submitting reports required by the Act in a timely
4804           manner.




       City of Livermore                                                          Franchise Agreement
                                                                                             Page 115
4805   9.3     Proposition 218

4806           Should there be a Change in Law or a new judicial interpretation of Applicable Law,
4807           including, but not limited to, Article XIII C and D of the California Constitution
4808           (Commonly Proposition 218), which impacts the City’s ability to set or change Rates
4809           for the Collection services provided under this Agreement, Contractor agrees to meet
4810           and confer with City to discuss the impact of such Change in Law on either Party’s
4811           ability to perform under this Agreement.
4812
4813           The City shall not be in default of this Agreement, if it is determined by a court of
4814           competent jurisdiction, that it lacks the authority to set Rates and/or increase Rates for
4815           charges related to providing service, pursuant to this Agreement. Should a court of
4816           competent jurisdiction determine that the City lacks authority to set and/or increase
4817           Rates for charges related to Agreement Fee, other City fees, governmental fees and
4818           charges then Contractor shall reduce the Rates it charges Customers a corresponding
4819           amount, providing said fees, Rates and/or charges disallowed by the court are not
4820           related to the cost of providing service hereunder and had been incorporated in the
4821           Rates charged by Contractor to its Customers.
4822
4823           Nothing herein is intended to imply that California Constitution, Articles XIIIC or
4824           XIIID, apply to the setting of Rates for the services provided under this Agreement;
4825           rather this Section is provided merely to allocate risk of loss as between the Parties.
4826
4827           The Proposition 218 indemnification shall not extend to indemnification related to City
4828           fees described in Article 7 of the Agreement or any City fees established in accordance
4829           with Section 7.7.


4830   9.4     Measure D Indemnification

4831           Contractor shall indemnify, defend and hold harmless City, its officers, employees,
4832           agents and volunteers, from and against any revenues withheld by the Alameda County
4833           Source Reduction and Recycling Board in the event the source reduction and Recycling
4834           goals or any other requirement of the Measure are not met by the Contractor with
4835           respect to the Recycling/source reduction programs under this Agreement and such
4836           failure is due to the failure of Contractor to meet its obligations under this Agreement
4837           unless Contractor can demonstrate to the satisfaction of the City that such failure is
4838           beyond Contractor’s ability to control or effect, or due to Contractor delays in providing
4839           information that prevents Contractor or City from submitting reports required by
4840           Measure D in a timely manner.




       City of Livermore                                                          Franchise Agreement
                                                                                             Page 116
4841   9.5     Insurance

4842           9.5.1       Minimum Scope of Insurance

4843           Coverage shall be at least as broad as:
4844
4845           A.      Insurance Services Office form number GL 0002 covering Comprehensive
4846                   General Liability and Insurance Services Office form number GL 0404 covering
4847                   Broad Form Comprehensive General Liability; or Insurance Services Office
4848                   Commercial General Liability coverage ("occurrence" form CG 0001).
4849
4850           B.      Insurance Services Office form number CA 0001 covering Automobile Liability,
4851                   code 1 "any auto" and endorsement CA 0025.
4852
4853           C.      Workers' Compensation insurance as required by the Labor Code of the State of
4854                   California and Employers Liability insurance.
4855
4856           D.      Employee Blanket Fidelity Bond.
4857
4858           9.5.2       Minimum Limits of Insurance

4859           Contractor shall maintain limits no less than:
4860
4861           A.      Comprehensive General Liability: $10,000,000 combined single limit per
4862                   occurrence for bodily injury, personal injury and property damage.
4863
4864           B.      Automobile Liability: $10,000,000 combined single limit per accident for bodily
4865                   injury and property damage.
4866
4867           C.      Workers' Compensation and Employers Liability: Workers' compensation limits
4868                   as required by the Labor Code of the State of California and Employers Liability
4869                   limits of $1,000,000 per accident.
4870
4871           D.      Employee Blanket Fidelity Bond in the amount of $500,000 per employee,
4872                   covering dishonesty, forgery, alteration, theft, disappearance, destruction (inside
4873                   or outside).
4874
4875           9.5.3       Deductibles and Self-Insured Retentions

4876           Any deductibles or self-insured retentions must be declared to and approved by the
4877           City. At the option of the City, either: the insurer shall reduce or eliminate such
4878           deductibles or self-insured retentions as respects the City, its officials and employees;
4879           or the Contractor shall procure a bond guaranteeing payment of losses and related
4880           investigations, claim administration and defense expenses.
4881
4882           9.5.4       Other Insurance Provisions

4883           The policies are to contain, or be endorsed to contain, the following provisions:

       City of Livermore                                                           Franchise Agreement
                                                                                              Page 117
4884
4885           A.      General Liability and Automobile Liability Coverages
4886
4887                   1.     The City, its officials, employees and volunteers are to be covered as
4888                          additional insureds as respects: liability arising out of activities performed
4889                          by or on behalf of the Contractor; products and completed operations of the
4890                          Contractor; premises owned, leased or used by the Contractor; or
4891                          automobiles owned, leased, hired or borrowed by the Contractor. The
4892                          coverage shall contain no special limitations on the scope of protection
4893                          afforded to the City, its officials, employees or volunteers. The automobile
4894                          liability is endorsed to contain MCA-90 coverage.
4895
4896                   2.     The Contractor's insurance coverage shall be primary insurance as respects
4897                          the City, its officials, employees and volunteers. Any insurance or self-
4898                          insurance maintained by the City, its officials, employees or volunteers
4899                          shall be in excess of the Contractor's insurance and shall not contribute with
4900                          it.
4901
4902                   3.     Any failure to comply with reporting provisions of the policies shall not
4903                          affect coverage provided to the City, its officials, employees or volunteers.
4904
4905                   4.     Coverage shall state that the Contractor's insurance shall apply separately to
4906                          each insured against whom claim is made or suit is brought, except with
4907                          respect to the limits of the insurer's liability.
4908
4909           B.      Workers' Compensation and Employers Liability Coverage. The insurer shall
4910                   agree to waive all rights of subrogation against the City, its officers, employees
4911                   and volunteers for losses arising from work performed by the Contractor for the
4912                   City.
4913
4914           C.      All Coverages. Each insurance policy required by this clause shall be endorsed
4915                   to state that coverage shall not be suspended, voided, canceled by either party,
4916                   reduced in coverage or in limits except after thirty (30) calendar days prior
4917                   written notice by certified mail, return receipt requested, has been given to the
4918                   City.
4919
4920           9.5.5        Acceptability of Insurers

4921           The insurance policies required by this Section shall be issued by an insurance company
4922           or companies authorized to do business in the State of California and with a rating in
4923           the most recent edition of Best's Insurance Reports of size category VII or larger and a
4924           rating classification of A or better.
4925
4926           9.5.6        Verification of Coverage

4927           Contractor shall furnish Contractor’s insurance agent a copy of these specifications, and
4928           direct the agent to provide the City with certificates of insurance and with original
4929           endorsements affecting coverage required by this clause. Issuance of documentation

       City of Livermore                                                             Franchise Agreement
                                                                                                Page 118
4930           indicates the Contractor’s insurance complies with these provisions. The certificates
4931           and endorsements for each insurance policy are to be signed by a Person authorized by
4932           that insurer to bind coverage on its behalf. The certificates and endorsements are to be
4933           received and approved by the City before work commences. The City reserves the right
4934           to require complete, certified copies of all required insurance policies, at any time.
4935
4936           9.5.7        Required Endorsements

4937           A.      The Workers' Compensation policy shall contain an endorsement in substantially
4938                   the following form:
4939
4940                   “Thirty (30) calendar days’ prior written notice shall be given to the City of
4941                   Livermore in the event of cancellation, reduction in coverage, or non-renewal of
4942                   this policy. Such notice shall be sent to:
4943
4944                          City Manager
4945                          City of Livermore
4946                          Administration Building
4947                          1052 South Livermore Avenue
4948                          Livermore, CA 94550”
4949
4950           B.      The Commercial General Liability Business and Automobile Liability policies
4951                   shall contain endorsements in substantially the following form:
4952
4953                   1.     “Thirty (30) calendar days’ prior written notice shall be given to the City of
4954                          Livermore in the event of cancellation, reduction in coverage, or non-
4955                          renewal of this policy. Such notice shall be sent to:
4956
4957                               City Manager
4958                               City of Livermore
4959                               Administration Building
4960                               1052 South Livermore Avenue
4961                               Livermore, CA 94550”
4962
4963                   2.     "The City of Livermore, its officers, employees, and agents are additional
4964                          insureds on this policy." The City requires form CG2010 1185.
4965
4966                   3.     "This policy shall be considered primary insurance as respects any other
4967                          valid and collectible insurance maintained by the City of Livermore,
4968                          including any self-insured retention or program of self-insurance, and any
4969                          other such insurance shall be considered excess insurance only."
4970
4971                   4.     "Inclusion of the City of Livermore as an insured shall not affect the City's
4972                          rights as respects any claim, demand, suit or judgment brought or recovered
4973                          against the Contractor. This policy shall protect Contractor and the City in
4974                          the same manner as though a separate policy had been issued to each, but
4975                          this shall not operate to increase the Contractor's liability as set forth in the


       City of Livermore                                                               Franchise Agreement
                                                                                                  Page 119
4976                         policy beyond the amount shown or to which the Contractor would have
4977                         been liable if only one party had been named as an insured."
4978
4979           9.5.8       Delivery of Proof of Coverage

4980           Simultaneously with the execution of this Agreement, Contractor shall furnish the City
4981           certificates of each policy of insurance required hereunder, in form and substance
4982           satisfactory to City. Such certificates shall show the type and amount of coverage,
4983           effective dates and dates of expiration of policies and shall have all required
4984           endorsements. If the City requests, copies of each policy, together with all
4985           endorsements, shall also be promptly delivered to City.
4986
4987           Renewal certificates will be furnished periodically to City to demonstrate maintenance
4988           of the required coverages throughout the Term.
4989
4990           9.5.9       Other Insurance Requirements

4991           A.      In the event any services are delegated to a Subcontractor, the Contractor shall
4992                   require such Subcontractor to provide statutory workers' compensation insurance
4993                   and employer's liability insurance for all of the Subcontractor's employees
4994                   engaged in the work in accordance with Sections 9.5.2.C and 9.5.4.B. The
4995                   liability insurance required by Section 9.5.2.A shall cover all Subcontractors or
4996                   the Subcontractor must furnish evidence of insurance provided by it meeting all
4997                   of the requirements of this Section 9.5.
4998
4999           B.      The Contractor shall comply with all requirements of the insurers issuing policies.
5000                   The carrying of insurance shall not relieve Contractor from any obligation under
5001                   this Agreement. If any claim exceeding the amount of any deductibles or self-
5002                   insured reserves is made by any third Person against the Contractor or any
5003                   Subcontractor on account of any occurrence related to this Agreement, the
5004                   Contractor shall promptly report the facts in writing to the insurance carrier and to
5005                   the City.
5006
5007           If Contractor fails to procure and maintain any insurance required by this Agreement,
5008           the City may take out and maintain, at the Contractor's expense, such insurance as it
5009           may deem proper and deduct the cost thereof from any monies due to the Contractor.
5010
5011           The Commercial General and Automobile Liability insurance required by Sections
5012           9.5.2 and 9.5.4.A shall be written on an "occurrence", rather than a "claims made" basis,
5013           if such coverage is obtainable. If it is not obtainable, Contractor must arrange for a
5014           thirty-six (36) month "tail coverage" to protect the City from claims filed after the
5015           expiration or termination of this Agreement relating to incidents which occurred prior to
5016           such expiration or termination.




       City of Livermore                                                             Franchise Agreement
                                                                                                Page 120
5017   9.6     Performance Bond

5018           Within five (5) Business Days of the City’s notification to Contractor that the City has
5019           executed this Agreement, Contractor shall file with the City a bond, payable to the City,
5020           securing the Contractor's performance of its obligations under this Agreement and such
5021           bond shall be renewed annually if necessary so that the performance bond is maintained
5022           at all times during the Term. The principal sum of the bond shall be Three Million
5023           Dollars ($3,000,000) and shall be adjusted every three (3) years, commencing with Rate
5024           Period Three, to equal three (3) months of the annual Gross Rate Revenues. The bond
5025           shall be executed as surety by a corporation authorized to issue surety bonds in the State
5026           of California, that has a rating of A or better in the most recent edition of Best’s Key
5027           Rating Guide, and that has a record of service and financial condition satisfactory to the
5028           City. The bond shall be in the form attached as Exhibit L.
5029

5030                                      ARTICLE 10.
5031                               CITY'S RIGHT TO PERFORM
5032                                        SERVICE


5033   10.1    General

5034           In the event that the Contractor, for any reason whatsoever, fails, refuses or is unable to
5035           Collect, Transport or Dispose of any or all Solid Waste and/or Collect, Transport and
5036           Process Recyclable Materials or Compostable Materials which it is required by this
5037           Agreement to Collect and Transport, at the time and in the manner provided in this
5038           Agreement, for a period of more than forty-eight (48) hours, and if, as a result thereof,
5039           Solid Waste, Recyclable Materials and/or Compostable Materials should accumulate in
5040           the City to such an extent, in such a manner, or for such a time that City Manager
5041           should find that such accumulation endangers or menaces the public health, safety or
5042           welfare, then the City shall have the right, but not the obligation, upon twenty-four (24)
5043           hour prior written notice to Contractor during the period of such emergency as
5044           determined by City Manager, (1) to perform, or cause to be performed, such services
5045           itself with its own or other personnel without liability to Contractor; and/or (2) to take
5046           possession of any or all of Contractor's equipment and other property used or useful in
5047           the Collection, Transporting, Processing and Disposing of Solid Waste, Recyclable
5048           Materials or Compostable Materials, and to use such property to Collect, Transport,
5049           Process, and Dispose of any Solid Waste, Recyclable Materials, or Compostable
5050           Materials generated within the City which Contractor would otherwise be obligated to
5051           Collect, Transport, Process, and Dispose of pursuant to this Agreement.
5052
5053           Notice of the Contractor's failure, refusal, or neglect to Collect, Transport, Process, and
5054           Dispose of Solid Waste, Recyclable Materials, or Compostable Materials may be given
5055           verbally by telephone to the Contractor at its principal office and shall be effective


       City of Livermore                                                           Franchise Agreement
                                                                                              Page 121
5056           immediately. Written confirmation of such verbal notification shall be sent to
5057           Contractor within twenty-four (24) hours of the verbal notification.
5058
5059           Contractor further agrees that in such event:
5060
5061           A.    It will fully cooperate with City to affect the transfer of possession of property to
5062                 the City for City's use.
5063
5064           B.    It will, if City so requests, keep in good repair and condition all property that the
5065                 City has taken possession, provide all motor vehicles with fuel, oil and other
5066                 service, and provide such other services as may be necessary to maintain said
5067                 property in operational condition.
5068
5069           C.    Subject to provisions of any labor agreements then in effect, City may
5070                 immediately engage all or any personnel necessary or useful for the Collecting,
5071                 Transporting, Processing, and Disposing of Solid Waste, Recyclable Materials, or
5072                 Compostable Materials including, if City so desires, employees previously or then
5073                 employed by Contractor, Contractor further agrees, if City so requests, to furnish
5074                 City the services of any or all management or office personnel employed by
5075                 Contractor whose services are necessary or useful for Solid Waste, Recyclable
5076                 Materials, or Compostable Materials Collection, Transportation, Processing, and
5077                 Disposal operations and for the billing and collection of fees for these services.
5078
5079           The City agrees that it assumes complete responsibility for the proper and normal use of
5080           such equipment and facilities while in its possession.
5081
5082           If the interruption or discontinuance in service is caused by any of the reasons listed in
5083           Section 11.7, the City shall pay to Contractor the reasonable rental value of the
5084           equipment and facilities, possession of which is taken by the City, for the period of the
5085           City's possession, if any, which extends beyond the period of time for which Contractor
5086           has rendered bills in advance of service, for the class of service involved.
5087
5088           Except as otherwise expressly provided in the previous paragraph, the City's exercise of
5089           its rights under this Article: (1) does not constitute a taking of private property for
5090           which compensation must be paid; (2) will not create any liability on the part of City to
5091           Contractor; and (3) does not exempt Contractor from the indemnity provisions of
5092           Article 9, which are meant to extend to circumstances arising under this Section,
5093           provided that Contractor is not required to indemnify City against claims and damages
5094           arising from the sole negligence of City officers, employees and agents in the operation
5095           of Collection vehicles during the time the City has taken possession of such vehicles.


5096   10.2    Duration of City's Possession

5097           City has no obligation to maintain possession of Contractor's property and/or continue
5098           its use in Collecting, Transporting, Processing, and Disposing Solid Waste, Recyclable


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5099           Materials, or Compostable Materials for any period of time and may, at any time, in its
5100           sole discretion, relinquish possession to the Contractor.
5101
5102           The City's right to retain temporary possession of Contractor's property, and to provide
5103           Solid Waste, Recyclable Materials, or Compostable Materials Collection services, shall
5104           continue until Contractor can demonstrate to the City's satisfaction that it is ready,
5105           willing and able to resume such services or for one hundred eighty (180) calendar days,
5106           whichever occurs first.


5107   10.3    Condemnation

5108           The City fully reserves the rights to acquire the Contractor's property utilized in the
5109           performance of this Agreement, by purchase or through the exercise of the right of
5110           eminent domain.
5111

5112                                     ARTICLE 11.
5113                                DEFAULT AND REMEDIES


5114   11.1    Events of Default

5115           All provisions of the Agreement are considered material. Each of the following shall
5116           constitute an event of default.
5117
5118           A.    Fraud or Deceit. Contractor practices, or attempts to practice, any fraud or
5119                 deceit upon the City.
5120
5121           B.    Insolvency or Bankruptcy. Contractor becomes insolvent, unable, or unwilling
5122                 to pay its debts, or upon listing of an order for relief in favor of Contractor in a
5123                 bankruptcy proceeding.
5124
5125           C.    Failure to Maintain Coverage. Contractor fails to provide or maintain in full
5126                 force and effect the Workers' Compensation, liability, or indemnification
5127                 coverage as required by this Agreement.
5128
5129           D.    Violations of Regulation. Contractor violates any orders or filings of any
5130                 regulatory body having authority over Contractor relative to this Agreement,
5131                 provided that Contractor may contest any such orders or filings by appropriate
5132                 proceedings conducted in good faith, in which case no breach or default of this
5133                 Agreement shall be deemed to have occurred.
5134
5135           E.    Violations of Applicable Law. Contractor violates Applicable Law relative to
5136                 this Agreement.

       City of Livermore                                                          Franchise Agreement
                                                                                             Page 123
5137
5138           F.    Failure to Perform Collection, Transportation, Processing, or Composting
5139                 Services. Contractor ceases to provide Collection, Transportation, Processing, or
5140                 Composting services as required under this Agreement for a period of two (2)
5141                 consecutive calendar days or more, for any reason within the control of
5142                 Contractor.
5143
5144           G.    Failure to Pay or Report. Contractor fails to make any payments to City
5145                 required under this Agreement including payment of City fees or Liquidated
5146                 Damages and/or refuses to provide City with required information, reports, and/or
5147                 records in a timely manner as provided for in the Agreement.
5148
5149           H.    Acts or Omissions. Any other act or omission by Contractor which violates the
5150                 terms, conditions, or requirements of this Agreement, the Act, as it may be
5151                 amended from time to time, or any law, statute, ordinance, order, directive, rule,
5152                 or regulation issued there under and which is not corrected or remedied within the
5153                 time set in the written notice of the violation or, if Contractor cannot reasonably
5154                 correct or remedy the breach within the time set forth in such notice, if Contractor
5155                 should fail to commence to correct or remedy such violation within the time set
5156                 forth in such notice and diligently effect such correction or remedy thereafter.
5157
5158           I.    False, Misleading, or Inaccurate Statements. Any representation or disclosure
5159                 made to the City by Contractor in connection with or as an inducement to entering
5160                 into this Agreement, or any future amendment to this Agreement, which proves to
5161                 be false or misleading in any material respect as of the time such representation or
5162                 disclosure is made, whether or not any such representation or disclosure appears
5163                 as part of this Agreement; and, any Contractor-provided report containing a
5164                 misstatement, misrepresentation, data manipulation, or an omission of fact or
5165                 content explicitly defined by the Agreement, excepting non-numerical
5166                 typographical and grammatical errors.
5167
5168           J.    Seizure or Attachment. There is a seizure of, attachment of, or levy on, some or
5169                 all of Contractor’s operating equipment, including without limits its equipment,
5170                 maintenance or office facilities, or any part thereof.
5171
5172           K.    Suspension or Termination of Service. There is any termination or suspension
5173                 of the transaction of business by Contractor related to this Agreement, including
5174                 without limit, due to labor unrest including strike, work stoppage or slowdown,
5175                 sick-out, picketing, or other concerted job action lasting more than two (2)
5176                 calendar days.
5177
5178           L.    Criminal Activity. Contractor, its officers, managers, or employees are found
5179                 guilty of criminal activity related directly or indirectly to performance of this
5180                 Agreement or any other Agreement held with the City.
5181




       City of Livermore                                                          Franchise Agreement
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5182           M.    Assignment without Approval. Contractor transfers or assigns this Agreement
5183                 without the expressed written approval of the City unless the assignment is
5184                 permitted without City approval pursuant to Section 12.6.
5185
5186           N.    Failure to Provide Proposal or Implement Change in Service. Contractor fails
5187                 to provide a proposal for new services or changes to services or fails to implement
5188                 a change in service as requested by the City as specified in Section 4.3.
5189
5190           O.    Failure to Perform Any Obligation. Contractor fails to perform any obligation
5191                 established under this agreement.
5192
5193           City shall provide contractor written notice of default within twenty-four (24) hours of
5194           the occurrence of default or within twenty-four (24) hours of the City’s first knowledge
5195           of the Contractor’s default, whichever occurs first.


5196   11.2    Contractor Rights to Remedy Default

5197           Contractor shall be given ten (10) calendar days from written notification by City to
5198           cure any default which, in the City’s sole opinion, creates a potential public health and
5199           safety threat.
5200
5201           Contractor shall be given ten (10) calendar days from written notification by City to
5202           cure any default arising under subsections C, E, F, I, J and K in Section 11.1 provided,
5203           however, that the City shall not be obligated to provide Contractor with a notice and
5204           cure opportunity if the Contractor has committed the same or similar breach/default
5205           within a twenty-four (24) month period.
5206
5207           Contractor shall be given thirty (30) calendar days from written notification by City to
5208           cure any other default (which is not required to be cured within ten (10) calendar days);
5209           however, that the City shall not be obligated to provide Contractor with a notice and
5210           cure opportunity if the Contractor has committed the same or similar breach/default
5211           within a twenty-four (24) month period.


5212   11.3    City’s Remedies in the Event of Default

5213           Upon Contractor’s default, City has the following remedies in the event of Contractor
5214           default:
5215
5216           A.    Termination. In the event that Contractor should default and subject to the right
5217                 of the Contractor to cure, in the performance of any provisions of this contract,
5218                 and the default is not cured for any default within in ten (10) calendar days if the
5219                 default creates a potential public health and safety threat or arises under Section
5220                 11.1.C., E, F, I, J, or K, or otherwise thirty (30) calendar days after receipt of
5221                 written notice of default from the City, then the City may, at its option, terminate
5222                 this Agreement and/or hold a hearing at its next City Council meeting to

       City of Livermore                                                          Franchise Agreement
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5223                 determine whether this Agreement should be terminated. In the event City
5224                 decides to terminate this Agreement, the City shall serve twenty (20) calendar
5225                 days’ written notice of its intention to terminate upon Contractor. In the event
5226                 City exercises its right to terminate this Agreement, the City may, at its option,
5227                 upon such termination, either directly undertake performance of the services or
5228                 arrange with other Persons to perform the services with or without a written
5229                 agreement. This right of termination is in addition to any other rights of City
5230                 upon a failure of Contractor to perform its obligations under this Agreement.
5231                 Upon termination, the City shall have the right to use equipment and Facilities
5232                 pursuant to Section 11.4.
5233
5234                 Contractor shall not be entitled to any further revenues from Collection operations
5235                 authorized hereunder from and after the effective date of termination.
5236
5237           B.    Suspension of Contractor’s Obligation. City may suspend Contractor’s
5238                 performance of its obligations if Contractor fails to cure default in the time frame
5239                 specified in Section 11.2 until such time the Contractor can provide assurance of
5240                 performance in accordance with Section 11.8. During the period of suspension,
5241                 City shall have the right to use equipment and Facilities pursuant to Section 11.4.
5242
5243           C.    Waiver of Default. City may waive any event of default or may waive
5244                 Contractor’s requirement to cure a default event if City determines that such
5245                 waiver would be in the best interest of the City. City’s waive of an event of
5246                 default is not a waiver of future events of default that may have the same or
5247                 similar conditions.
5248
5249           D.    Liquidated Damages. City may assess Liquidated Damages for Contractor’s
5250                 failure to meet specific performance standards pursuant to Section 11.6 and
5251                 Exhibit F.
5252
5253           E.    Other Available Remedies. City’s election of one or remedies described herein
5254                 shall not limit the City from any and all other remedies at law and in equity
5255                 including injunctive relief, etc.


5256   11.4    Possession of Property upon Termination or Suspension

5257           In the event of termination or suspension for default, the City shall have the right to
5258           take possession of any and all of Contractor's equipment and other property used or
5259           useful in the Collection, Transportation, Processing, and Disposal of Solid Waste,
5260           Recyclable Materials or Compostable Materials and the billing and collection of fees
5261           for these services and to use such property. The City shall have the right to retain the
5262           possession of such property in accordance with Article 10. If the City retains possession
5263           thereof after the period of time for which Contractor has already been paid by means of
5264           bills issued in advance of providing service for the class of service involved, the
5265           Contractor shall be entitled to the reasonable rental value of such property (which shall
5266           be offset against any damages due the City for the Contractor's default).

       City of Livermore                                                          Franchise Agreement
                                                                                             Page 126
5267
5268           Contractor shall furnish the City with immediate access to all of its business records
5269           related to its Customers and billing of accounts for Collection services.


5270   11.5    City's Remedies Cumulative; Specific Performance

5271           The City's right to terminate the Agreement under Section 11.3 and to take possession
5272           of the Contractor's properties under Section 11.4 are not exclusive, and the City's
5273           termination of the Agreement shall not constitute an election of remedies. Instead, they
5274           shall be in addition to any and all other legal and equitable rights and remedies which
5275           the City may have.
5276
5277           By virtue of the nature of this Agreement, the urgency of timely, continuous and high
5278           quality service, the lead time required to effect alternative service, and the rights
5279           granted by City to the Contractor, the remedy of damages for a breach hereof by
5280           Contractor is inadequate and City shall be entitled to injunctive relief.


5281   11.6    Liquidated Damages

5282           11.6.1      General

5283           The Parties agree that as of the time of the execution of this Agreement, it is
5284           impractical, if not impossible, to reasonably ascertain the extent of damages which shall
5285           be incurred by City as a result of a breach by Contractor of its obligations under this
5286           Agreement. The factors relating to the impracticability of ascertaining damages
5287           include, but are not limited to, the fact that: (i) substantial damage results to members of
5288           the public who are denied services or denied quality or reliable service; (ii) such
5289           breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of
5290           the Agreement to individual members of the general public for whose benefit this
5291           Agreement exists, in subjective ways and in varying degrees of intensity which are
5292           incapable of measurement in precise monetary terms; (iii) that exclusive services might
5293           be available at substantially lower costs than alternative services and the monetary loss
5294           resulting from denial of services or denial of quality or reliable services is impossible to
5295           calculate in precise monetary terms; and, (iv) the termination of this Agreement for
5296           such breaches, and other remedies are, at best, a means of future correction and not
5297           remedies which make the public whole for past breaches.
5298
5299           11.6.2      Service Performance Standards; Liquidated Damages for Failure to Meet
5300                       Standards

5301           The Parties further acknowledge that consistent, reliable Solid Waste, Recyclable
5302           Materials, and Compostable Materials Collection service is of utmost importance to
5303           City and that City has considered and relied on Contractor's representations as to its
5304           quality of service commitment in awarding the Agreement to it. The Parties further
5305           recognize that some quantified standards of performance are necessary and appropriate

       City of Livermore                                                            Franchise Agreement
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5306           to ensure consistent and reliable service and performance. The Parties further recognize
5307           that if Contractor fails to achieve the performance standards, or fails to submit required
5308           documents in a timely manner, City and its residents and businesses will suffer damages
5309           and that it is and will be impractical and extremely difficult to ascertain and determine
5310           the exact amount of damages which City will suffer. Therefore, without prejudice to
5311           City’s right to treat such non-performance as an event of default under this Section
5312           11.6.2, the Parties agree that the following Liquidated Damage amounts represent a
5313           reasonable estimate of the amount of such damages considering all of the circumstances
5314           existing on the date of this Agreement, including the relationship of the sums to the
5315           range of harm to City that reasonably could be anticipated and the anticipation that
5316           proof of actual damages would be costly or impractical.
5317
5318           Contractor agrees to pay (as Liquidated Damages and not as a penalty) the amounts set
5319           forth in the Schedule of Performance Adjustments, Exhibit F.
5320
5321           City may determine the occurrence of events giving rise to Liquidated Damages
5322           through the observation of its own employees or representative or investigation of
5323           Customer Complaints.
5324
5325           Liquidated Damages will only be assessed after Contractor has been given the
5326           opportunity but failed to rectify the damages as described in this Agreement. Prior to
5327           assessing Liquidated Damages, City shall give Contractor notice of its intention to do
5328           so. The notice will include a brief description of the incident(s)/non-performance. City
5329           may review (and make copies at its own expense) all information in the possession of
5330           Contractor relating to incident(s)/non-performance. City may, within ten (10) calendar
5331           days after issuing the notice, request a meeting with Contractor. City may present
5332           evidence of non-performance in writing and through testimony of its employees and
5333           others relevant to the incident(s)/non-performance. City will provide Contractor with a
5334           written explanation of its determination on each incident(s)/non-performance prior to
5335           authorizing the assessment of Liquidated Damages. The decision of City shall be final,
5336           and Contractor shall not be subject to, or required to exhaust, any further administrative
5337           remedies.
5338
5339           11.6.3      Amount

5340           City may assess Liquidated Damages for each calendar day or event, as appropriate,
5341           that Contractor is determined to be liable in accordance with this Agreement in the
5342           amounts specified in Exhibit F. In the event the amount of Liquidated Damages for any
5343           three (3) month period exceeds the thresholds established in Section 5.18.1, the City
5344           shall have the right to request replacement of the Contractor’s general manager as
5345           described in Section 5.18.1.
5346
5347           11.6.4      Timing of Payment

5348           Contractor shall pay any Liquidated Damages assessed by City within ten (10) calendar
5349           days after they are assessed. If they are not paid within the ten (10) day period, City
5350           may proceed against the performance bond required by the Agreement, request


       City of Livermore                                                          Franchise Agreement
                                                                                             Page 128
5351           replacement of Contractor’s general manager, order the termination of the rights or
5352           “franchise” granted by this Agreement, or all of the above.


5353   11.7    Excuse from Performance

5354           The Parties shall be excused from performing their respective obligations hereunder in
5355           the event they are prevented from so performing by reason of floods, earthquakes, other
5356           "acts of nature", war, civil insurrection, riots, acts of any government (including judicial
5357           action), and other similar catastrophic events which are beyond the control of and not
5358           the fault of the Party claiming excuse from performance hereunder. Labor unrest,
5359           including but not limited to strike, work stoppage or slowdown, sick-out, picketing, or
5360           other concerted job action conducted by Contractor's employees or directed at
5361           Contractor is not an excuse from performance and Contractor shall be obligated to
5362           continue to provide service notwithstanding the occurrence of any or all of such events.
5363           In the case of labor unrest or job action directed at a third party over whom Contractor
5364           has no control, the inability of Contractor to provide Solid Waste, Recyclable Materials,
5365           or Compostable Materials Collection services due to the unwillingness or failure of the
5366           third party to provide reasonable assurance of the safety of Contractor's employees
5367           while providing Solid Waste, Recyclable Materials, or Compostable Materials
5368           Collection services or to make reasonable accommodations with respect to Container
5369           placement and point of Delivery, time of Collection or other operating circumstances to
5370           minimize any confrontation with pickets or the number of Persons necessary to make
5371           Collections shall, to that limited extent, excuse performance and provided further that
5372           the foregoing excuse shall be conditioned on Contractor's cooperation in making
5373           Collection at different times and in different locations.
5374
5375           The Party claiming excuse from performance shall, within two (2) calendar days after
5376           such Party has notice of such cause, give the other Party notice of the facts constituting
5377           such cause and asserting its claim to excuse under this Section.
5378
5379           In the event that either Party validly exercises its rights under this Section, the Parties
5380           hereby waive any claim against each other for any damages sustained thereby.
5381
5382           The partial or complete interruption or discontinuance of Contractor's services caused
5383           by one or more of the events described in this Article shall not constitute a default by
5384           Contractor under this Agreement. Notwithstanding the foregoing, however, (1) the
5385           existence of an excuse from performance will not affect the City's rights under Article
5386           10; and (2) if Contractor is excused from performing its obligations hereunder for any
5387           of the causes listed in this Section for a period of thirty (30) calendar days or more,
5388           other than as the result of third party labor disputes where service cannot be provided
5389           for reasons described earlier in this Section, the City shall nevertheless have the right, in
5390           its sole discretion, to terminate this Agreement by giving ten (10) calendar days notice,
5391           in which case the provisions of Section 11.3 shall apply.




       City of Livermore                                                            Franchise Agreement
                                                                                               Page 129
5392   11.8    Right to Demand Assurances of Performance

5393           If Contractor (1) is the subject of any labor unrest including work stoppage or
5394           slowdown, sick-out, picketing or other concerted job action; (2) appears in the
5395           reasonable judgment of City to be unable to regularly pay its bills as they become due;
5396           or (3) is the subject of a civil or criminal judgment or order entered by a federal, State,
5397           regional or local agency for violation of an environmental law, and the City Manager
5398           believes in good faith that Contractor's ability to perform under the Agreement has
5399           thereby been placed in substantial jeopardy, the City may, at its option and in addition
5400           to all other remedies it may have, demand from Contractor reasonable assurances of
5401           timely and proper performance of this Agreement, in such form and substance as the
5402           City Manager believes in good faith is reasonably necessary in the circumstances to
5403           evidence continued ability to perform under the Agreement. If Contractor fails or
5404           refuses to provide satisfactory assurances of timely and proper performance in the form
5405           and by the date required by City, such failure or refusal shall be an event of default for
5406           purposes of Section 11.1.
5407

5408                                    ARTICLE 12.
5409                             OTHER AGREEMENTS OF THE
5410                                     PARTIES


5411   12.1    Relationship of Parties

5412           The Parties intend that Contractor shall perform the services required by this Agreement
5413           as an independent Contractor engaged by City and not as an officer or employee of the
5414           City nor as a partner of or joint venturer with the City. No employee or agent of
5415           Contractor shall be or shall be deemed to be an employee or agent of the City. Except
5416           as expressly provided herein, Contractor shall have the exclusive control over the
5417           manner and means of conducting the Solid Waste, Recyclable Materials, and
5418           Compostable Materials Collection, Transportation, Processing and Disposal services
5419           performed under this Agreement, and all Persons performing such services. Contractor
5420           shall be solely responsible for the acts and omissions of its officers, employees,
5421           Subcontractors and agents.        Neither Contractor nor its officers, employees,
5422           Subcontractors and agents shall obtain any rights to retirement benefits, workers'
5423           compensation benefits, or any other benefits which accrue to City employees by virtue
5424           of their employment with the City.


5425   12.2    Compliance with Law

5426           In providing the services required under this Agreement, Contractor shall at all times, at
5427           its sole cost, comply with all Applicable Laws, permits and licenses of the United


       City of Livermore                                                           Franchise Agreement
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5428           States, the State of California and the City and with all applicable regulations pro-
5429           mulgated by federal, State, regional or local administrative and regulatory agencies,
5430           now in force and as they may be enacted, issued or amended during the Term.


5431   12.3    Governing Law

5432           This Agreement shall be governed by, and construed and enforced in accordance with,
5433           the laws of the State of California.


5434   12.4    Jurisdiction

5435           Any lawsuits between the Parties arising out of this Agreement shall be brought and
5436           concluded in the courts of Alameda County in the State of California, which shall have
5437           exclusive jurisdiction over such lawsuits.
5438
5439           With respect to venue, the Parties agree that this Agreement is made in and will be
5440           performed in Alameda County.


5441   12.5    Intentionally Deleted



5442   12.6    Assignment

5443           Neither Party shall assign its rights nor delegate or otherwise transfer its obligations
5444           under this Agreement to any other Person without the prior written consent of the other
5445           Party. Any such assignment made without the consent of the other Party shall be void
5446           and the attempted assignment shall constitute a material breach of this Agreement.
5447
5448           For purposes of this Section, "assignment" shall include, but not be limited to (i) a sale,
5449           exchange or other transfer of substantially all of Contractor's local, regional, and/or
5450           corporate assets dedicated to service under this Agreement to a third party; (ii) a sale,
5451           exchange or other transfer of ten percent (10%) or more of the local, regional, and/or
5452           corporate assets, stock, or ownership of Contractor to a Person (other than a transfer of
5453           shares in Contractor by the owner of such shares to a revocable trust for the benefit of
5454           his family or to another owner of shares in Contractor) except that no cumulative sale,
5455           exchange, or transfer of shares may exceed twenty percent (20%) during the Term of
5456           the Agreement; (iii) any reorganization, consolidation, merger, recapitalization, stock
5457           issuance or re-issuance, voting trust, pooling Agreement, escrow arrangement,
5458           liquidation or other transaction to which Contractor or any of its shareholders is a party
5459           which results in a change of ownership or control of ten percent (10%) or more of the
5460           value or voting rights in the local, regional, and/or corporate stock of Contractor; (iv)
5461           divestiture of an Affiliate (e.g., trucking company, materials recovery facility, transfer

       City of Livermore                                                           Franchise Agreement
                                                                                              Page 131
5462           station, Disposal Site, Compost Site, Recyclables Processing Site, etc.) used by
5463           Contractor to fulfill its obligations under this Agreement; and, (iv) any combination of
5464           the foregoing (whether or not in related or contemporaneous transactions) which has the
5465           effect of any such transfer or change of local, regional, and/or corporate ownership
5466           and/or control of Contractor. For purposes of this Section, the term "proposed
5467           assignee" shall refer to the proposed transferee(s) or other successor(s) in interest
5468           pursuant to the assignment.
5469
5470           Contractor acknowledges that this Agreement involves rendering a vital service to
5471           City's residents and businesses, and that City has selected Contractor to perform the
5472           services specified herein based on (1) Contractor's experience, skill and reputation for
5473           conducting its Solid Waste, Recyclables, and Compostables management operations in
5474           a safe, effective and responsible fashion, at all times in keeping with applicable waste
5475           management laws, regulations and good waste management practices, and (2)
5476           Contractor's financial resources on a local, regional, and/or corporate level to maintain
5477           the required equipment and to support its indemnity obligations to City under this
5478           Agreement. City has relied on each of these factors, among others, in choosing
5479           Contractor to perform the services to be rendered by Contractor under this Agreement.
5480
5481           If Contractor requests City's consideration of and consent to an assignment, City may
5482           deny or approve such request in its complete discretion. No request by Contractor for
5483           consent to an assignment need be considered by City unless and until Contractor has
5484           met the following requirements. The City may, in its sole discretion, waive one or more
5485           of these requirements.
5486
5487           A.    On the date the Contractor submits a written request for the City’s written consent
5488                 of an assignment, Contractor shall pay the City a transfer fee in the amount of 1%
5489                 of the Gross Rate Revenues for the most-recently completed Rate Period.
5490
5491           B.    Contractor shall undertake to pay City its reasonable expenses for attorney's fees
5492                 and investigation costs necessary to investigate the suitability of any proposed
5493                 assignee, and to review and finalize any documentation required as a condition
5494                 for approving any such assignment;
5495
5496           C.    Contractor shall furnish City with audited financial statements of the proposed
5497                 assignee's operations for the immediately preceding three (3) operating years;
5498
5499           D.    Contractor shall furnish City with satisfactory proof: (i) that the proposed
5500                 assignee has at least ten (10) years of Solid Waste, Recyclable Materials, and
5501                 Compostable Materials management experience on a scale equal to or exceeding
5502                 the scale of operations conducted by Contractor under this Agreement; (ii) that in
5503                 the last five (5) years, the proposed assignee has not suffered any citations or
5504                 other censure from any federal, State or local contractor having jurisdiction over
5505                 its waste management operations due to any significant failure to comply with
5506                 State, federal or local waste management laws and that the assignee has provided
5507                 the City with a complete list of such citations and censures; (iii) that the proposed
5508                 assignee has at all times conducted its operations in an environmentally safe and


       City of Livermore                                                           Franchise Agreement
                                                                                              Page 132
5509                 conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste,
5510                 Recyclable Materials, and Compostable Materials management practices in
5511                 accordance with sound waste management practices in full compliance with all
5512                 federal, State and local laws regulating the Collection, Transportation, Processing
5513                 and Disposal of Solid Waste, Recyclable Materials, and Compostable Materials,
5514                 including Hazardous Waste as identified in Title 22 of the California Code of
5515                 Regulations; and, (v) that any other information required by City demonstrates
5516                 that the proposed assignee can fulfill the terms of this Agreement in a timely, safe
5517                 and effective manner.
5518
5519           E.    Contractor shall provide the City with any and all additional records or
5520                 documentation which, in the City’s sole determination, would facilitate the review
5521                 of the proposed assignment
5522
5523           Under no circumstances shall any proposed assignment be considered by City if
5524           Contractor is in default at any time during the period of consideration. If, in the City’s
5525           sole determination, there is any doubt regarding the compliance of the Contractor with
5526           the Agreement, City may require an audit of the Contractor’s compliance and the costs
5527           of such audit shall be paid by Contractor in advance of the performance of said audit.


5528   12.7    Subcontracting

5529           Contractor shall not engage any Subcontractors for Collection, Transportation,
5530           Processing or Disposal of Solid Waste, Recyclable Materials, or Compostable Materials
5531           without the prior written consent of the City. As of the Effective Date of this
5532           Agreement, the City has approved Contractor’s use of the following Subcontractors:
5533           (1) Grover Landscape Services, Inc. for Composting; and (2) Alameda County
5534           Industries, LLC for Recyclables processing; (3) Cascadia Consulting Group for
5535           Recycling and Composting technical assistance; and (4) Clean Energy for compressed
5536           natural gas (CNG) fueling station development and fuel services.


5537   12.8    Binding on Successors

5538           The provisions of this Agreement shall inure to the benefit to and be binding on the
5539           successors and permitted assigns of the Parties.


5540   12.9    Transition to Next Contractor

5541           Prior to expiration or earlier termination of this Agreement, Contractor will cooperate
5542           with City and subsequent Contractor(s) to assist in an orderly transition of services from
5543           Contractor to subsequent contractor. Such cooperation will include, but not be limited
5544           to, Contractor providing route lists and detailed Customer account and billing
5545           information. Contractor will not be obliged to sell Collection vehicles, equipment or


       City of Livermore                                                          Franchise Agreement
                                                                                             Page 133
5546           facilities to the next Contractor; however, the City has rights to ownership of Containers
5547           pursuant to Section 5.16.4. Depending on Contractor's circumstances at the point of
5548           transition, the Contractor at its option may enter into negotiations with the next
5549           Contractor to sell (in part or all) Collection vehicles, and other equipment or facilities.
5550
5551           In connection therewith, Contractor acknowledges that the provisions of Public
5552           Resources Code Sections 49520-49523 have no application to this Agreement and
5553           agrees, to the extent such sections may have application, to waive whatever rights they
5554           may afford.


5555   12.10 Parties in Interest

5556           Nothing in this Agreement, whether express or implied, is intended to confer any rights
5557           on any Persons other than the Parties to it and their representatives, successors and
5558           permitted assigns.


5559   12.11 Waiver

5560           The waiver by either Party of any breach or violation of any provisions of this
5561           Agreement shall not be deemed to be a waiver of any breach or violation of any other
5562           provision nor of any subsequent breach of violation of the same or any other provision.
5563           The subsequent acceptance by either Party of any monies which become due hereunder
5564           shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation
5565           by the other Party of any provision of this Agreement.


5566   12.12 Contractor's Investigation

5567           The Contractor has made an independent investigation (satisfactory to it) of the
5568           conditions and circumstances surrounding the Agreement and the work to be performed
5569           by it.


5570   12.13 Notice

5571           All notices, demands, requests, proposals, approvals, consents and other
5572           communications which this Agreement requires, authorizes or contemplates, except as
5573           provided in Section 10.1, shall be in writing and shall either be personally delivered to a
5574           representative of the Parties at the address below or deposited in the United States mail,
5575           first class postage prepaid, addressed as follows:
5576
5577
5578           If to City:
5579

       City of Livermore                                                           Franchise Agreement
                                                                                              Page 134
5580                         City Manager
5581                         City of Livermore
5582                         Administration Building
5583                         1052 South Livermore Avenue
5584                         Livermore, CA 94550
5585
5586                 With copies to:
5587
5588                         City Attorney
5589                         City of Livermore
5590                         Administration Building
5591                         1052 South Livermore Avenue
5592                         Livermore, CA 94550
5593
5594                 and,
5595
5596                         Public Works Manager
5597                         City of Livermore
5598                         3500 Robertson Park Road
5599                         Livermore, CA 94550
5600
5601           If to Contractor:
5602
5603                         Livermore Sanitation, Inc.
5604                         1080 Walsh Ave.
5605                         Santa Clara, California 95050
5606                         Attn: Louis Pellegrini, President
5607
5608
5609           The address to which communications may be delivered may be changed from time to
5610           time by a notice given in accordance with this Section.
5611
5612           Notice shall be deemed given on the day it is personally delivered or, if mailed, three
5613           (3) calendar days from the date it is deposited in the mail.


5614   12.14 Representatives of the Parties

5615           References in this Agreement to the "City" shall mean the City of Livermore as defined
5616           in Section 1.19 in cases where no action is required. In cases were action is required
5617           related to adjustment of Contractor’s Compensation, amendment, extension or
5618           termination of the Agreement, and approving Rates, “City” shall mean the City Council.
5619           In all other cases where action is required, “City” shall mean City Manager. The City
5620           Manager may delegate, in writing, authority to the Public Works Director and/or to
5621           other City officials and may permit such officials, in turn, to delegate in writing some or
5622           all of such authority to subordinate officers. The Contractor may rely upon actions


       City of Livermore                                                           Franchise Agreement
                                                                                              Page 135
5623           taken by such delegates if they are within the scope of the authority properly delegated
5624           to them.
5625
5626           The Contractor shall, by the Effective Date, designate in writing a responsible officer
5627           who shall serve as the representative of the Contractor in all matters related to the
5628           Agreement and shall inform the City in writing of such designation and of any
5629           limitations upon his or her authority to bind the Contractor. The City may rely upon
5630           action taken by such designated representative as actions of the Contractor unless they
5631           are outside the scope of the authority delegated to him/her by the Contractor as
5632           communicated to City.


5633   12.15 City Free to Negotiate with Third Parties

5634           The City may investigate all options for the Collection, Transportation, Processing and
5635           Disposal of Solid Waste, Recyclable Materials and Compostable Materials after the
5636           expiration of the Term or earlier termination of this Agreement. Without limiting the
5637           generality of the foregoing, the City may solicit proposals from Contractor and from
5638           third parties for the provision of Collection services, Disposal services, Recycling
5639           services, Compostable Materials Collection and Composting, and any combination
5640           thereof, and may negotiate and execute agreements for such services which will take
5641           effect upon the expiration or earlier termination under Section 11.3 of this Agreement.


5642   12.16 Statements and Supplemental Information

5643           The Contractor submitted Contractor’s Proposal on April 13, 2009 and any other
5644           information submitted to the City supplementary thereto, on which the City has relied in
5645           awarding this Agreement to Contractor and entering into this Agreement, does not
5646           contain any untrue statement of a material fact nor omit to state a material fact
5647           necessary in order to make the statements made, in light of the circumstances in which
5648           they were made, not misleading.


5649   12.17 Criminal Activity of Contractor

5650           12.17.1 Definitions

5651           A.    Contractor Party. For the purposes of this Section, Contractor Party(ies) shall
5652                 mean Contractor, its officers, directors, or management or fiscal employees where
5653                 “management employee” means any employee with direct or indirect
5654                 responsibility for direction and control over the Contractor’s activities and
5655                 “fiscal” employee means an employee with direct or indirect responsibility and
5656                 control duties relating to financial matters.
5657
5658           B.    Criminal Activity. For purpose of this Section, Criminal Activity shall mean any
5659                 of the following events or circumstances:

       City of Livermore                                                         Franchise Agreement
                                                                                            Page 136
5660
5661                 1.    Convictions. The entry against any Contractor Party of a criminal
5662                       conviction or a permanent mandatory or prohibitory injunction from a
5663                       court, municipality or regulatory agency of competent jurisdiction based on
5664                       acts taken in his, her or its official capacity on behalf of Contractor with
5665                       respect to:
5666
5667                        a.      Fraud or criminal offense in connection with obtaining, attempting
5668                                to obtain, procuring or performing a public or private agreement
5669                                related to municipal solid waste services of any kind (including
5670                                Collection, hauling, transfer, Processing, Composting or Disposal),
5671                                including this Agreement or any amendment thereto; or
5672
5673                        b.      Bribery or attempting to bribe a public officer or employee of a
5674                                local, State, or federal agency; or
5675
5676                        c.      Embezzlement, extortion, racketeering, false claims, false
5677                                statements, forgery, falsification or destruction of records,
5678                                obstruction of justice, knowingly receiving stolen property, theft,
5679                                or misprision (failure to disclose) of a felony; or
5680
5681                        d.      Unlawful disposal of Hazardous Waste or designated waste the
5682                                occurrence of which any of Contractor Party knew or should have
5683                                known; or
5684
5685                        e.      Violation of antitrust laws, including laws relating to price-fixing,
5686                                bid-rigging and sales and market allocation, and of unfair and anti-
5687                                competitive trade practices laws, including with respect to inflation
5688                                of Solid Waste Collection, Transportation, Processing fees, or
5689                                Disposal Fees; or
5690
5691                        f.      Violation of securities laws; or
5692
5693                        g.      Felonies.
5694
5695                 2.    Pleas. Entry of a plea of “guilty,” “nolo contendere” or “no contest” by a
5696                       Contracting Party based on acts taken in his, her or its official capacity on
5697                       behalf of Contractor with respect to the conduct described in preceding
5698                       subdivision (1) of this Section.
5699
5700           12.17.2 Notice

5701           Contractor shall notify City in writing within five (5) calendar days of occurrence of
5702           any Criminal Activity.
5703




       City of Livermore                                                          Franchise Agreement
                                                                                             Page 137
5704           12.17.3 Contractor’s Cure

5705           Upon occurrence of any Criminal Activity, Contractor shall immediately do or cause to
5706           be done all of the following:
5707
5708           A.    Terminate from employment or remove from office any offending individual
5709                 Contractor Party, unless otherwise directed or ordered by a court or regulatory
5710                 agency of competent jurisdiction or authority, and unless that termination would
5711                 constitute a breach of any labor agreement entered into by Contractor; and,
5712
5713           B.    Eliminate participation by any individual offending Contractor Party in any
5714                 management, supervision, or decision activity that affects or could affect, directly
5715                 or indirectly, the performance of the Contractor under this Agreement.
5716
5717           12.17.4 Transfer and Hiring

5718           Contractor shall not allow or cause to be allowed the hire or transfer of any individual
5719           Contractor Party from any parent or subsidiary company or business entity of
5720           Contractor who has committed Criminal Activity for a position as a Contractor
5721           representative, field supervisor, officer or director who is directly or indirectly
5722           responsible for performance of this Agreement without obtaining prior written consent
5723           of City, following full disclosure to City of the facts and circumstances surrounding
5724           such Criminal Activity.
5725
5726           12.17.5 City’s Remedy

5727           In the event of Criminal Activity, City, in its sole discretion, may terminate the
5728           Agreement upon thirty (30) calendar days written notice to Contractor, or may impose
5729           other sanctions (which may include financial sanctions, temporary suspensions or any
5730           other condition deemed appropriate short of termination) as it will deem proper, in the
5731           following events:
5732
5733           A.    Contractor fails to comply with material obligation set forth in Articles 5, 6, 7, 9
5734                 or 12 of this Agreement, subject to any cure provisions stated herein, or
5735
5736           B.    The Criminal Activity concerns or relates directly or indirectly to this Agreement.
5737
5738           Contractor shall be given the opportunity to present evidence in mitigation during the
5739           thirty (30) day notice period.


5740   12.18 Material Change Notification Process

5741           Contractor recognizes that material changes in the number and type of Customers, the
5742           amount of Gross Rate Revenue collected from Customers, Change in Law, and other
5743           factors may impact financial results and expectations of or related to the Agreement.
5744           Therefore, the Contractor recognizes that it has an obligation to provide timely notices
5745           to the City of such changes and agrees to exercise diligence in monitoring conditions

       City of Livermore                                                          Franchise Agreement
                                                                                             Page 138
5746           and to notify the City of any such changes or potential changes as soon as Contractor is
5747           aware of such.
5748
5749           In addition, Contractor shall provide to City monthly reports tracking revenue billed
5750           and actual Gross Rate Revenue received as required by monthly reporting requirements
5751           in Section 6.3.2.E and semi-annual reports as required by Section 6.3.3.K so that any
5752           material changes to revenues may be detected as quickly as possible. Contractor and
5753           City shall, at an agreed to time, meet to discuss the results of such analysis. In the event
5754           that there is a material difference between actual financial results and expectations, the
5755           City shall be entitled to request from Contractor or Contractor on its own, may initiate a
5756           Special Rate Review pursuant to Section 8.4.


5757   12.19 Ownership of Environmental Benefits

5758           The City retains the right, to be exercised at its sole discretion with regard to each
5759           instance and unless expressly waived, to the ownership of any environmental benefits
5760           derived from, but not limited to, emissions or elimination of emissions of climate
5761           change or green house gasses, or emissions or elimination of other emissions to air,
5762           water and/or soil as identified now or during the Term of the Agreement. This
5763           provision applies to all:
5764
5765           A.    Material steams that are generated within the City and that are Collected,
5766                 Transferred, Processed, Recycled, Composted, and/or Disposed by the Contractor
5767                 under the terms of this Agreement;
5768
5769           B.    Programs, practices and procedures of the City, or directly or indirectly of the
5770                 Contractor acting under the terms of this Agreement; and/or,
5771
5772           C.    Equipment or allocated portion of equipment used by Contractor in fulfillment of
5773                 the terms of the Agreement, including vehicles and buildings and environmental
5774                 improvements made to each, whether owned by jurisdiction, Contractor, or
5775                 Related Party Entity, or Subcontractor.
5776
5777           This provision applies to, but is not limited to, any use of this value in reallocating
5778           and/or reducing emissions of climate change or green house gasses.
5779
5780           This provision applies regardless of whether the environmental benefit is:
5781
5782           1)    Determined through regulatory action, market activity, negotiation between two
5783                 or more parties, intra-company transfer, and/or other means.
5784
5785           2)    Monetized in terms of a currency, or is non-monetized as in a barter or trade in
5786                 which value is attributed indirectly in non-monetary terms.
5787
5788           Contractor shall inform the City at least thirty (30) calendar days in advance of any
5789           lawful action that directly or indirectly might materially affect any environmental

       City of Livermore                                                            Franchise Agreement
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5790           benefit. The City shall then determine whether it wishes to retain ownership of, and be
5791           compensated for, the affected benefit.
5792

5793                                   ARTICLE 13.
5794                           MISCELLANEOUS AGREEMENTS


5795   13.1    Entire Agreement

5796           This Agreement, including the Exhibits, represents the full and entire Agreement
5797           between the Parties with respect to the matters covered herein.


5798   13.2    Section Headings

5799           The article headings and section headings in this Agreement are for convenience of
5800           reference only and are not intended to be used in the construction of this Agreement nor
5801           to alter or affect any of its provisions.


5802   13.3    References to Laws

5803           All references in this Agreement to laws shall be understood to include such laws as
5804           they may be subsequently amended or recodified, unless otherwise specifically
5805           provided.


5806   13.4    Interpretation

5807           This Agreement shall be interpreted and construed reasonably and neither for nor
5808           against either Party, regardless of the degree to which either Party participated in its
5809           drafting.


5810   13.5    Amendment

5811           This Agreement may not be modified or amended in any respect except in writing,
5812           signed by the Parties.




       City of Livermore                                                         Franchise Agreement
                                                                                            Page 140
5813   13.6    Severability

5814           If any non-material provision of this Agreement is for any reason deemed to be invalid
5815           and unenforceable, the invalidity or unenforceability of such provision shall not affect
5816           any of the remaining provisions of this Agreement which shall be enforced as if such
5817           invalid or unenforceable provision had not been contained herein.


5818   13.7    Counterparts

5819           This Agreement may be executed in counterparts each of which shall be considered an
5820           original.


5821   13.8    Exhibits

5822           Each of the Exhibits identified as Exhibits "A" through “O” is attached hereto and
5823           incorporated herein and made a part hereof by this reference.
5824
5825           IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the
5826           day and year first above written.
5827
5828
5829
5830
5831
5832
5833
5834                                  {Remainder of page intentionally blank}




       City of Livermore                                                         Franchise Agreement
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