Loading...
2006-2016 Burrtec Waste & RecyclingASSIGNMENT AND ASSUMPTION AGREEMENT 1TD.S ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment") is made and entered into as of iiv,.e Sr • , 2006, by and between Waste Management of California, Inc., a Calfornk Corporation dba Waste Management. of, the Desert ("Assignor"), and Burrtec Waste and Recycling 'Services, LLC ("Assigns"), with reference to the following Recitals. . . A. On or about July 5,'2000, the City, of La Quina ("City") and Assignor entered info those certain agreements entitled "Amended and Restated Agreement for the Collectiain, . Transportation, and Disposal of MunicipalSolid Waste" (tie "Solid. WasteAgreenpent' ) and "Amended and Restated Agtcement for the Collection and Recycling of Recyclable Materials" (the "Recycling Agreement"). • B. Assignor is in the process of purchasing certain assets of Assignee (the: "Proposed. .Transaction") and Assignor now`deshes to assign .its tight, tide, and lute and. intereet in and to the Solid Waste Agreement and the Recycling Agreement to Assignbe, and Assignee desires to accept such assignment on, and subject to, the tetras end conditions set forth in this Assignment NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of • which are hereby acknowledged, the parties hereto agree as follows: • Agreement • . 1. Assist Subject to the•oonsummation attire Proposed Transaction, Assignor hereby assigns, conveys; transfer; and delivers to Assignee all of Assignor's right, tide, and • interest in and to the Solid Waste Agreement and the Recycling Agroeriiient, and Assignee hereby accepts such aesignnient end agrees • to assume performance of all terms, covenants and . conditions occurring or arising under the Solid Waste and Recycling Agreements on of after the date of this Assignment, including any modifications to such terms as agreed to between Assignee and City. • • 2. Assumption o Obligations. By acceptaure of this Assignment, Assignee hereby agrees to assume all of Assignor's. right, tide, and interest in and to the Solid. Waste Agreement and the Recycling Agreement, and Assignee agrees to .timely disehetge, perform or cause to be pea/mined and to be bound by all of the liabilities, dudes and obligations imposed in connection with the Solid Waste Agreement and the -Recycling Agreement from and atter the data of this Assignment to the same extent as if Assignee had been the original patty thereto. 3. Successors and Assigns. This Assignment shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto. 1." 4. fthuninsams. This Assignment shall be governed by and construed in accordance with the laws of the State of California. 5.. LuIbfgAgimunees. The' patdes covenant and agree that they will execute stick other ind ttker iosimments and doctuttents as are or may become necessary or convenient to • . • effectuate and carry out this Assignment • •6.. Agli2dIX.,101101181191.111314421211811116. The Paeans exeent8 fhb • Assignment on behalf Of then respective principals represent that they lave bein *intimated to d o so and that they thereby bind the pinetpais to the tenns and concrations of this Assimiment. • . . . . . - • . • • .7. 111111110411211. The otagrigh headings of thh Assignment are for reference and • • canceniencepnly•and are no part of thfr Assignment. They have no ad upon the consicuctien or inimpretadon Of:any pad hereof: The provide= of this Assignment shall be ocmitrued in a , • framable. manner to effect the purposes Of the parties and of this Assignment. ' • • • • 8. .. Attorneiesloa. In the event that a party to this Assignment brings an acdon cigeinst anotherparti hereto by reason oittabreach ofeny condition, covenant. ISPresentatinit warranty in this Assignment,. or otherwise arising but of Ibis Assignment, the prevaling.paitt in such action dna be %tided to reit:Wee tom the non -prevails party expert witness -6:M, Ind its • - reasonable attomere fiea and costs. Attorney' ifees shall binds attorney's fees on any appeal, and in addition a party. imtided to attorney's; fees shall be intided.to all other reasonable costs for • • • irrvestiptingsuch action, including the %inducting of discovecy, • • . . . . • 9. • • rid=marti. Tins ?adsorbent may be mooted in an number of cbuidespota, • . . • • each. of which when sb executed and deliveredsludl be deemed to be an original and an Of which • counterparts tdcen together did1 conadtutobut one and the same instrument. . • • - • • • - . • • - • , ' • • • - • 10. gmads. • In the ev.ent of anY Moonslatency or conflict betwsen the Jamie of that • , • • • • certain Aid Aurchine Agreement between' Assignor andAssignee dated January 25,2006 (the • • • - "AssetPurchase Agrament)and.this Assignment, the temirof the Asiet Purchase Agreement . • . , . • . . . . . . • • • . . c.:•: •I/CW.IMBSS-WHEREOF, this Assigtinent has been executed by the parte as of the • .date set forth ithove.. . . . • "Asifignor" • •• . • • . 'Assignee" , • . . . • •-• WASTE 84ANAGEMMIT QP CALIPOSA ': Burrtec Waste and Recycling Services, . . • ,. ' INC., a California corporation OM Waste • , LLd. • • " • . Management of thij -- -, • • ay : . -% By: • • ' : Ar Al O: Its: Its: a' IWUNCY, Duhurfistivvr • • nunsiioang • voltimatenSktl 2 , • . .• • •TN• •1' j:" MIMES& WMPRPOF, tide Assiglineni 'has been executed by the parties as of the • • • 4. Vanakbaja. This Assignment shall be governed by and construed in accordance with the laws of the State of California. 5.. affligtaigaggrag. The patties covenant and agree that they will execute salt other end .further interments and doonments as are or may become nenennnY or convadart to • affectuate and carry out this Aesigmnesit.• 6. . Authority oi• Signatories to Bind Principals. The persons executing this. Assignment on behalf of their respective mincipate itepreeent that they lave been authorized to do so and that they thereby bind the princgials the tams and comStions of this Assignment. • • 7..Intimatiging. The patugraph headings of this Amignment are for reference and :cotwenience.ortly• and are not part of tids Assignment They have tko effect tmon the construction' or interpretation of.any 'part hereof: The pmviithins of Ibis Assignment shall be conatmed itt a tetwortaba. manner to effect the purposes of the parties and of this Assignment • ; • 8. . . Attomenot Fag.. In the event tire a party to this Assignment brings tm actton ageing anothapattY hereto by reason oithebreach of condition, covenmd, *resents* a% wammty br this Assigntnenk or otherwise arising but °tibia Assignment, the prevailing pert; in such action shall be entitled to mains from the non -prevailing patty expert witness feat, and its ' reasonable attorneys fres and costs. Attorney's thes shall Sind. Memo's feat on any appeal, and in addition a party. entitled to atkattry'skes shall be entitled:to all other reasonable posts for • investigating inch actin, including the 'ducting of diacoverY, ' • 9. • • fcpa. 71ris Assigntient may be executed in any ntnnba of couidasparn . . each of which when se executed arid detiverethshall be deemed to be an original and all ef which conirnsparts taken together -Shill constitutehnt one and the same Inas . • • • . • • 10. Sallie In the event of. any inconsistency or andliot between the Jervis of that certain ASet Parham Agteement between' Assignor andAssignee dated Janney 25,2006 (the • "AssetPurchase Ameamentlenthlids Assi,gnment, the terms -of the Aaiet 9nrchese Agreement . date sFt forth iti.)ove. • "Aisignor" • • . •'•'• WANE MANAGEMENT OE CALIFORNIA INC., a California oothoratian dhe Waste Management oral Desert 101/01%10.019 ' 701111A1.03/11/.6 "Assignee" ' Bar" Waste and Recycling Services, LLC By: Att-1 A IA( t Its: At/ Z ..as 2 0 WASTE RECYCLW G SERVICES "We'll Take Can Of It" BURRTEC June 28,2006 Mr. Doug Evans Community Development Director City of La Quints 78-495 Calle Tampico La Quints, CA 92253 �E E VES. JUN302005 :OM.nUOEPatNw1T111P- Dear Mr. Evans: As of July I, 2006, Burrtec Waste and Recycling Services will have closed escrow with Waste Management, Inc for the Waste Management of the Desert Facility. Enclosed is a copy of the new bond as required by the Franchise Agreement between Burrtec Waste and Recycling Services and the City of La Quints. We are excited about this new venture and look forward to providing continued services for your community. If you have any questions, please contact Frank Orlett or myself at 760-340-5901. Sincer ly, Deborah McGarrey Municipal Marketing Manager cc: Frank Orlett 41-575 Eclectic Street * Palm Desert * California * 92260 • 760-340-5901 • 760-340-2732 WESTCHESTER FIRE INSURANCE COMPANY ANNUAL CONTRACT BOND Bond No.: K06954601 Premium: $15,000.00 Annually KNOW ALL MEN BY THESE PRESENTS, That we, Burrtec Waste & Recycling, LLC, as Principal, and the WESTCHESTER FIRE INSURANCE COMPANY, as Surety, are held and firmly bound unto City of La Quinta, as Obligee, in the penal sum of one million and 00/100 Dollars ($1,000,000.00), for the payment of which sum, well and truly to be made, the Principal and Surety bind themselves, their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, The Principal has entered into a certain written contract with the Obligee, dated July 5, 2000 for the collection and recycling of recyclable materials in accordance with the terms and conditions of said contract, which is hereby referred to and made a part hereof as if fully set forth herein. PROVIDED, HOWEVER, by acceptance of this bond, Obligee acknowledges and agrees that this bond only covers a term beginning June 30, 2006 and ending June 30, 2007 regardless of the number of years the aforesaid contract shall cover or be in force, and not withstanding anything in the aforesaid contract to the contrary. Such term may be continued from year to year by the issuance of a continuation certificate executed by the Surety. If such teen is so continued, the liability of the Surety for each successive term shall not be cumulative, but rather, the liability of the Surety shall be limited to the penal amount of this bond for the entire period of time which such bond may be in effect pursuant to such continuation certificates. Failure to renew said bond shall not constitute a default under the contract. Any suit under this bond must be instituted before the expiration of thirty days from the date of termination of this bond. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That, if the above bounden Principal shall wall and truly keep, do and perform, each and every, all and singular, the matters and things in said contract set forth and specified to be by the said Principal kept, done and performed at the time and in the manner in said contract specified, and shall pay over, make good and reimburse to the above named Obligee, all loss and damage which said Obligee may sustain by reason of failure or default on the part of said Principal then this obligation shall be void; otherwise, it shall remain in full force and effect. SEALED with our seals and dated this 12th day of June, 2. . . BURR % J 1 & RECAl LING LLC BY:-►`�LIA Principala WESTCHESTER FIRE INSURANCE COMPANY Sure BY: John Kookootsedes, A orne -In-Fact ACKNOWLEDGMENT State of Califomia County of Orange On June 12, 2006 before me, Michelle M Nasrallah, Notary Public (here insert name and title of the officer) personally appeared John Kookootsedes personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acts , _ ALLAH ,, 4'1 Commission #1383291 Notory Public - CnIFornid .r Orange C ;, MyComm Eire;Nor�, WITNESS my hand and official seal. Signature (Seal) of Power of Attorney 2 271812 Know all men by these pretests: Tel WESTCHESTER FIRE INSURANCE COMPANY , a corporation Melte State ofMew York , moving :principal ice in the City of Atlanta ;Georgia ,pwsuantto the following Resolution, adapted by the Board of Mort,,dsof the$aid'Cotrwaay 0* No$nnbef $4-144$ to wit:,. *PESO-YEADotduTedocmgales awl lavas meamms®r«decamped, uan lecv[. t (t} Tbade Mado[ WY Sealer Viaehtesitam yVs*?maim, WeMtION Vitatadam.amyMomay-Wm4 weep for casessad aha wriapp is tSamae taaotthe was to MmaS whaaxWay Id due COPaasa,Tw 00% otaM "wind Carymma Saxnnt,Md ieeadatIe CamPWp•EMtetaffa.UBa�4tAe Prsr Wyseam Yam a gay v y?scut* Dewy Aa.IW Vite*St all Hpoiatfad moan ay albs Mew (Steedeslcsad) rtmctthiY• T^wo"rnHa+b WFteowdmatrnaa Cs amass,( dist weeaga as ball afpH Caawayema das ow wt of datbmpay Cola ;... - (2) ' My wee writs ague hi aaomaWeWO We; Rda thea be a bmaag spm aro CaapWy m ay use a abash wand by re Ffatdat lad awed wan t*ecatpmaa Sw ry. . , (1) The Mew= oftheHada% o SSq,Vigeprmdmm(Yit . e Hada; a SAssM tViahepdam and dieted of tacCapmyaayes afudbyfiesiadsoamVPewer ofdEaaay PhmidtiaWbhb re • , ReWlo9eo, me tbeupstate ofatadfyite Mar and PendoftheCampey may be And by ISmUe many aWaeteofsay web pew,mdray Wm rwerersam6tmabadaaemh Feeds WSOWaad - *S1beydidWdbbd re aneCempmy (a) da Shaticecatoti. foulest ee$ omwife.Fae fedi have ambmity 1a warps vat&aPia ofem RaoMion, teas By-LawwoftbtCaapay. ad etty' dwamueoatdott6e chneyaamUeytor6e, disdargs (sl Thepdnaaofthis WAWA; Sateatadtsmz 051o01TtnnayMa®tmd,a*tHmd "Mesa.( noes hereby nogunate, tuaathnc and appokw.JAMES BRAKKE •and JOHN KOOKOOTSEDES both of the Cityof Laguna Niguel, State of , California , each individual/Of there be more net one named, its nue and lawful attorney-in-fact, to make, Stew Seel and detivft on psbiha1fs and as: its actaad-load any and all bons, undertakings, recognisance*, contracts and other writings in the mere t ereeinpenahitS not exceeding Tay Million •• Dollars (S40000,000) and the wiewdlen of such writings in puede* of these presents shall be as binding upon aaidCbm*any, sa Arty and amplyt'as if they had bear duly aniseed (ed and ackowledged by the regularly elected officers of theCompany at its principalofce: IN WITNESS WHEREPF, the said StephenM. Haney Vice -President, has hereunto' subscribed his forme addaffed the eotporatc seal of,th - said WESTCHESTER FIRE E4SURANCE COMPANY this Sth day Of May 2006 . WESTCHESTER PIKE INSURANCE COMPANY COMMONWEALTH OF PENNSYLVANIA. COUNTY OFPHILADELPHIA . ss. . . = • . . On this Sth day Of MSy,, A.D, 2006 , before me,a Nonny Public of the Commonwealth of Pennsylvania In and fur [beCounty of Phi Stephen M. Haney , Vico-President of the WESTCHESTER FIRE INSURANCE COMPANY to me perwmjly'known10 be the individual Knd off S who executed the precedins IStnImem,'and he aoknov ledged that he executed the same, and that the seal affixed to the pectding tenrommt ik the ' • corporate seal of said Compan t that the mid corporate seal and ha signature were duly affixed by the authority aM direction of the said eelPso Len, "TO' that Resolution, adopted by the Boyd of Directors of atidtompaay, refuted to in the preceding ieshumeiu, is new io fiace- IN TESTIMONY WHEREOF, 7 have Aerators set my hand and affixed my official seal at the City of PhiladelphisIbe day and Yee fust above wtiiterl, .artrtn tt gog4..rp • NOTARIAL SEAL Kathleen Tint Notary Public PbiadelpIda, Pldladelphia County MyrinisliaaryhssSeptea:r 22, 2007 t a, I, the tindeMiggedSeoretmy Of WESTCHESTER FIRE INSURANCE COMPANY, do haebyuatifydlat thebdgin#Il OWEIt OF; ATTORNEY, of which the foregoing is a substantially nue and correct copy, is in full force and effect. Jo wttnescwhereot, I'hews pcame adacnbed my name as Secretary, and affixed the -*morale aaetof tixe corpo!apes; 412tfi' THIS POWEI(OF AT7'OR Y MAY NOT BE USED TO EXECUTE ANY BOND WITH THE BACK OF THIS DOCUMENT LISTS VARIOUS SECURITY FEATURES • THAT WILL PROTECT AGAINST COPY COUNTERFEIT AND ALTERATION. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT County of alif�(�_ q \ ..RST C (No State of Comia On Oa(cI(�In Date personally appeared 1_ ss. before me, Name and No al Officerwae, r le 9.'JDNolery Puecn %ti.ke\r Herne(s) W Sigoeda) ?' ®-personally known to me 0 proved to me on the basis of satisfactory evidence DEBRA G. HANSEN Commission # 1379077 Notary Public - California ; San Bernardino County My Comm. Expires Oct a 20061 to be the person(s) whose name(s) -Gore subscribed to the withyyiq instrument and acknowledged to me that.bdshe/they executed the same in a/her/theiruthorized capacity(ies), and that by her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. OPTIONAL Though the information below Ls not required by raw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this tom, to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General i¢; ❑ Attomey-in-Fact 0 Trustee it0 Guardian or Conservator 0 Other: �i 4 wr".ra' J a fl" Pra°i`'r%(cd".a+r fl' t N. -O N'4.`y ei4Ce✓<� q%. a": a•h=?4Wafl< rs?fahg.t. �`b1" 2,:o2.:`!2'.4.7ti�42.•�, <yrs, Signer Is Representing: PIG1,1f IINL1f PF4Ir11 OcsJCIlliR Top of Mont here O 1999 14011011111 Notary Aseocanon • 9350 De SotoAve, PO. Box 2402 • Chatsworth. CA 913132402 • wwsnabonabrmaryorg Prod. No 5907 Reorder Call Toll -Free 1. 87&6927 FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT FOR THE COLLECTION, TRANSPORTATION AND DISPOSAL OF MUNICIPAL SOLID WASTE This first amendment (the "Amendment") to that certain agreement entitled "Amended and Restated Agreement for the Collection, Transportation, and Disposal of Municipal Solid Waste" (the "Agreement") is entered between the City of La Quinta (hereinafter "City") and Burrtec Waste and Recycling Services, LLC (hereinafter "Burrtec" and/or "Contractor") so as to be effective as of July 1, 2006. RECTTALS A. City and Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert ("Waste Management") entered the Agreement, which is dated July 5, 2000. B. Waste Management's has requested that its rights and obligations as set forth in the Agreement be transferred and assigned to Burrtec, and City has consented to this request contingent upon various factors, including Burrtec's agreement to certain amendments to the Agreement, which amendments the parties desire to memorialize by entering this Amendment . COVENANTS Section 1. Contractor, The term "Contractor" as used in the Agreement shall now refer to Burrtec. Section 2. Assumption of Obligations. By executing this Amendment, Bunter agrees to assume all of Waste Managements right, title, and interest in and to the Agreement, and Burrtec agrees to timely discharge, perform or cause to be performed and to be bound by all of the liabilities, duties and obligations imposed in connection with the Agreement as if it had been the original party designated as the "Contractor" thereto. Included specifically, without limitation, in the obligations and liabilities assumed by Burrtec are those set forth in Article X of the Agreement. In this regard, Burrtec shall specifically assumeany obligations and liabilities of Waste Management resulting from the application of the hazardous substances indemnification provisions of Section 10.2 in connection with the disposal of materials at facilities chosen by Waste Management or owned by Waste Management or any of its Affiliates. While as between Contractor and City this Agreement requires Contractor to assume any obligations and liabilities. of Waste Management that may exist pursuant to the terms of the Agreement, it is not intended to abrogate any rights which Contractor may have pursuant to that certain asset purchase agreement entered between Burrtec and Waste Management, dated January 25, 2006, to seek indemnification or other remedies from Waste Management as a result of Contractor's obligations hereunder. Section 3. Maintenance of Existing Service Levels. Burnet shall provide programs, staffing levels, and services that meet or exceed the programs, staffing levels and services provided by Waste Management prior to City's consent to the transfer and assignment of the Agreement, without regard to whether such programs, staffing levels or services are specifically called out in the Agreement or this Amendment. For instance, Waste Management allows any Residential Customer desiring to change Cart sizes to do so at no charge, and Buntec agrees to continue this practice. Section 4. Insurance and Surety Bond: As a condition precedent to the effectiveness of City's consent to the transfer the Agreement to Burrtec, Burrtec shall provide evidence of insurance and a performance bond meeting the requirements of Articles V and VI of the Agreement. Section 5. Identification of Vehicles and Equipment, City understands Burrtec will utilize containers and collection vehicles in performance of the Agreement that it purchased from Waste Management. All such equipment utilized by Burrtec shall be uniformly painted as required by Article III of the Agreement. Burrtec shall not be required to repaint containers or collection vehicles purchased from Waste Management to reflect its corporate colors, however if it chooses to do so it shall accomplish repainting as expeditiously as reasonably possible. All collection vehicles utilized by Burrtec shall comply with applicable laws and regulations, including those related to the use of alternative fuels, and at a minimum all vehicles used in residential and commercial routes shall be powered by low emission fuel sources. Section 6. Limitation on requests for Fuel Surcharge. As additional consideration for the City's consent to the transfer of the Agreement, Buntec agrees that if during the remainder of the term it seeks the City's consent to implement a "fuel surcharge," and recognizing that City has unfettered discretion as to whether to permit any such surcharge, it will not do so until after July 1, 2007. Section 7. Residential Document Shredding Program Implementation. As additional • consideration for the City's consent to the transfer of the Agreement, Burrtec agrees to implement a residential shredding program at no additional cost. The residential document shredding program shall be designed to meet at least the following minimum requirements. Not less than one time per calendar year, Contractor shall establish a location within City to which residents may deliver confidential documents, such as financial records. Contractor, or such vendor to whom it may contract to provide this service, shall take possession of all records delivered by residents to such location on the designated day(9) and cause them to be shredded on site. Thereafter, Contractor shall make all reasonable efforts to recycle the materials remaining after the shredding process is complete, and shall properly dispose of any remaining materials. • Section 8. Audited Financial Statements: Burnet shall provide a third party designated by City, such as its City Attorney or solid waste consultant, with its audited financial statements for calendar year 2006 and calendar year 2007 within five (5) months of the end of such calendar years. The City acknowledges that these records are viewed by Burrtec as proprietary and confidential, and will endeavor to maintain the confidentiality of all proprietary information provided by Burnet. Notwithstanding the foregoing, any documents provided to City that are Page 2 public records are subject to being disclosed as may be required by law pursuant to a Public Records Act request. Section 9. Additional Reports/Records: The parties agree that Section 7.1 of the Agreement shall be amended to require maintenance of the following records in addition to those already required: 1. Customer services and billing/payment records; 2. Number of refuse, recycling and green waste routes and rout hours by service category (residential, commercial, roll -off, and special services); 3. Facilities, equipment, and personnel used; 4. Number of refuse, recycling and green waste containers in service by frequency of collection for each customer group (residential, commercial, roll -off); and 5. Number ofroll-offbox pulls. Section 10. Transition Obligations: The parties agree that the Agreement shall be amended to add the following language to Section 21.2: At the end of the Term, or in the event this Agreement i8 terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent solid waste enterprise it designates to assure a smooth transition of services. Contractor's cooperation shall include, but not be limited to, providing route lists, billing information and other operating records needed to service all premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. Contractor shall provide any new solid waste enterprise with all keys, security codes and remote controls used to access garages, gates and bin enclosures. Contractor shall be responsible for coordinating transfer immediately after its final collection activities, so as to not disrupt services. Contractor shall provide City with detailed rout sheets containing service names and addresses, billing names and addresses, monthly rate and service levels (number and size of containers and pickup days) at least 90 days prior to the transition date, provide an updated list two weeks before the transition, and a final updated list with any changes the day before the transition. Contractor shall provide means of access to the new solid waste enterprise at least one full business day prior to its first day of collection, and within sufficient time so as to not impede in any way the new solid waste enterprise from easily servicing all containers. Section 11. Liquidated Damages: The parties agree that the Agreement shall be amended to add a new Section 9.2 which shall read as follows: Page 3 The City finds, and Contractor agrees, that as of the time of the execution of this Amendment, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations of Contractor. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches, The parties further acknowledge that consistent, reliable Solid Waste collection service is of utmost importance to City and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Amendment and the Agreement. The parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, the parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Amendment, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult 'th legal counsel and obtain an explanation of the liquidated damage provisions that the Agreement was made. Contractor City Initial He Initial Here ' - 7� Contractor agrees to pay (as liquidated damages and noflts a penalty) the amounts set forth below for each of the respective acts: Failure to provide services For each day that Contractor fails to provide any of the services required under this Agreement, commencing five (5) business days after written notice is provided by the City that Contractor is not providing required services: $500.00/day Page 4 Failure to provide reports or records For each day that required monthly reports are late or incomplete, or that records required to be produced hereunder are not made available: $50.00/day For each day that required annual reports are late or incomplete: $100.00/day Failure to Cooperate with Service Provider Transition: For each day routing information, customer data and other operation information requested by City is received after City established due dates, both for preparation of a request for proposals and for new service providers implementation of service: $1,000.00/day For each day delivery of keys, access codes, remote controls, or other means of access to containers or container locations is delayed beyond one (1) day prior to new service provider servicing containers: $5,000/day Prior to assessing liquidated damages, City shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(synon-performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City. COntractor may present evidence in writing and through testimony of its employees and others relevant to the incident(synon-performance. City will provide Contractor with a written explanation of his or her determination on each incident(s)hnon-performance prior to authorizing the assessment of liquidated damages. The decision of City shall be final. Contractor shall pay any liquidated damages assessed by City within ten (10) days after they are assessed. If they are not paid within the ten (10) day period, City may proceed against the performance bond required by the Agreement or find Contractor in default and terminate this Agreement, or both. Section 12. Guarantee of Contractor's Performance. Concurrent with executing this Amendment Contractor shall deliver to City a Corporate Guarantee, in the form attached hereto as Exhibit 1, executed by Burrtec Waste Group Inc. affirming that it shall act as guarantor of Contractor's obligations as set for in the Agreement, as amended by this Amendment. Section 13. Reimbursement of City Expenses. As a condition precedent to the effectiveness of the provisions of this Amendment, Contractor shall pay City an amount equal to all administrative, legal and consulting costs it incurred itt connection with negotiating, analyzing, and entering this Amendment. Such payment shall be taken from the deposit already provided to City by Contractor, with any amounts exceeding the amount of the deposit due within 30 days of Contractor receiving an invoice from City for the foregoing expenses. Section 14. Effectiveness of Agreement. All provisions of the Agreement, excepting for those expressly amended herein, shall remain unchanged and in full force and effect. Page 5 IN WITNESS WHEREOF, the Parties hereto have executed this Amendment to be effective as of the date written above. ATTEST: CITY OF LA QUINTA sy:z)t 4 l •, i4 n— ca THOMAS P. GENOVESE, City Manager jj v ✓�.... I�///.%//. VERONICA J. INO, City erk APPROVED AS TO FORM: Its: ne crf (i+ Ciii Page 6 IN WITNESS WHEREOF, the Parties hereto have executed this Amendment to be effective as of the date written above. ATTEST: VERONICA J. MONTECINO, City Clerk APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney CITY OF LA QU[NTA By: ' 4.1,— L-e2"c1-e THOMAS P. GENOVESE City Manager BURRTEC, WASTE AND RECYCLING SERVICES, LLC By: Its: Page 6 EXHIBIT 1. CORPORATE GUARANTY THIS GUARANTY (the "Guaranty) is given as of the In day of July, 2004, and is made with reference to the following facts and circumstances: A. Burrtec Waste and Recycling Services, Inc., hereinafter ("Contractor") is a an affiliate of Bunter Waste Group (Guarantor). B. Contractor has assumed the obligations of Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert ("Waste Management') in that certain agreement with the City of La Quints ("City') dated July 5, 2000 and entitled "Amended and Restated Agreement for the Collection, Transportation, and Disposal of Municipal Solid Waste" (the "Agreement"). C. Contractor has additionally entered into an agreement with City dated July 1, 2006 and entitled "First Amendment to Amended and Restated Agreement for the Collection, Transportation, and Disposal of Municipal Solid Waste" (the "First Amendment') D. It is a requirement of the First Amendment, and a condition to the City approving the transfer and assignment of the Agreement to Contractor, that Guarantor guaranty Contractor's performance of the Agreement, including as it has been modified by the First Amendment. E. Guarantor is providing this Guaranty to induce the City to approve the transfer of the Agreement and enter into the First Amendment. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Aereement. Guarantor hereby irrevocably and unconditionally guarantees to the City the complete and timely performance, satisfaction and observation by Contractor of each and every term and condition of the Agreement, as amended and modified by the First Amendment, which Contractor is required to perform, satisfy or observe. In the event that Contractor fails to perform, satisfy or observe any of the terms and conditions of the Agreement, as amended and modified by the First Amendment, Guarantor will promptly and fully perform, satisfy or observe them in the place of the Contractor (including by causing the services required of Contractor to be performed by a Solid Waste Enterprise acceptable to City). Guarantor hereby guarantees payment to the City of any damages, costs or expenses which might become recoverable by the City from Contractor due to its breach of the Agreement, as amended and modified by the First Amendment. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and with respect to any payment obligation of Contractor under the Agreement, or the First Amendment, shall constitute a guarantee of payment and not of collection, and are not conditional upon thg genuineness, validity, regularity or enforceability of the Agreement or First Amendment. In any action brought against the Guarantor to enforce, or for damages for breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that would be available to the Contractor in an action to enforce, or for damages for breach of, the Agreement as amended and modified by the First Amendment (other than discharge of, or stay of proceedings to enforce, obligations under the Agreement under bankruptcy law). 3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Contractor; (2) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (3) any waiver with respect to any of the obligations of the Agreement, as amended and modified by the First Amendment, guaranteed hereunder or the impairment or suspension of any of the City's rights or remedies against the Contractor; or (4) any merger or consolidation of the Contractor with any other corporation, or any sale, lease or transfer of any or all the assets of the Contractor. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under California Civil Code Section 2846, 2849, and 2850, including without limitation, the right to require the City to (a) proceed against Contractor, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Contractor or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in it sole discretion any or all rights and remedies available to it against Contractor or any other guarantor or pledgor without impairing the City's rights and remedies in enforcing this Guaranty. The Guarantor hereby waives and agrees to waive at any future time at the request of the City to the extent now or then permitted by applicable law, any and all rights which the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations under, or to terminate, cancel, quit or surrender this Guaranty. The Guarantor hereby expressly waives, diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non- payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Contractor prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by the City of any performance bond or other collateral to assure the performance of Contractor's obligations under the Agreement. Guarantor shall not be released of its obligations hereunder as long as there is any claim by the City against Contractor arising out of the Agreement based on Contractor's failure to perform which has not been settled or discharged. 5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attornev's Fees. In addition to the amounts guaranteed under this Guaranty, Guarantor agrees in the event of Guaranty's breach of its obligations including to pay reasonable attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder. 7. Governine Law: darisdiction. 'This Guaranty is and shall be deemed to be a contract entered into in, and pursuant to the laws o1 the State of California and shall be governed and construed in accordance with the laws of California without regard to its conflicts of laws, rules for all purposes including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought in any court of the State of California and Guarantor° consents to personal jurisdiction over it by such courts. 8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will have no effect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. 9. Bindine On Successors. This Guaranty shall inure to the benefit of the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholdea(s) in the event of its dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all . necessary action under its Article of Incorporation and By-Laws, and that the person signing this Guaranty on its behalf has the authority to do so. • 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or . certified, first class postage prepaid, addressed as follows: To the City: Thomas P. Genovese, City Manager City of La Quinta P. O. Box 1504 La Quinta, CA 92247 with a copy to the City's Legal Counsel at the same address. To the Guarantor: Guarantor. Burrtec Waste Group, Inc. By: (title) CORPORATE GUARANTY THIS GUARANTY (the "Guaranty) is given as of the lit day of July, 2004, and is made with reference to the following facts and circumstances: A. Burrtec Waste and Recycling Services, Inc., hereinafter ("Contractor") is a an affiliate of Buntec Waste Group (Guarantor). B. Contractor has assumed the obligations of Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert ("Waste Management") in that certain agreement with the City of La Quinta ("City") dated July 5, 2000 and entitled "Amended and Restated Agreement for the Collection, Transportation, and Disposal of Municipal Solid Waste" (the "Agreement"). C. Contractor has additionally entered into an agreement with City dated July 1, 2006 and entitled "First Amendment to Amended and Restated Agreement for the Collection, Transportation, and Disposal of Municipal Solid Waste" (the "First Amendment") D. It is a requirement of the First Amendment, and a condition to the City approving the transfer and assignment of the Agreement to Contractor, that Guarantor guaranty Contractor's performance of the Agreement, including as it has been modified by the First Amendment E. Guarantor is providing this Guaranty to induce the City to approve the transfer of the Agreement and enter into the First Amendment. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally guarantees to the City the complete and timely performance, satisfaction and observation by Contractor of each and every term and condition of the Agreement, as amended and modified by the First Amendment, which Contractor is required to perform, satisfy or observe. In the event that Contractor fails to perform, satisfy or observe any of the terms and conditions of the Agreement, as amended and modified by the First Amendment, Guarantor will promptly and fully perforin, satisfy or observe than in the place of the Contractor (including by causing the services required of Contractor to be performed by a Solid Waste Enterprise acceptable to City). Guarantor hereby guarantees payment to the City of any damages, costs or expenses which might become recoverable by the City from Contractor due to its breach of the Agreement, as amended and modified by the First Amendment. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and with respect to any payment obligation of Contractor under the Agreement, or the First Amendment, shall constitute a guarantee of payment and not of collection, and are not conditional upon the genuineness, validity, regularity or enforceability of the Agreement or First Amendment. In any action brought against the Guarantor to enforce, or for damages' for breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that would be available to the Contractor in an action to enforce, or for damages for breach of, the Agreement as amended and modified by the First Amendment (other than discharge of, or stay of proceedings to enforce, obligations under the Agreement under bankruptcy law). 3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation. (l) the insolvency, bankruptcy, reorganization or cessation of existence of the Contractor; (2) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (3) any waiver with respect to any of the obligations of the Agreement, as amended and modified by the First Amendment, guaranteed hereunder or the impairment or suspension of any of the City's rights or remedies against the Contractor, or (4) any merger or consolidation of the Contractor with any other corporation, or any sale, lease or transfer of any or all the assets of the Contractor. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under California Civil Code Section 2846, 2849, and 2850, including without limitation, the right to require the City to (a) proceed against Contractor, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Contractor or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in it sole discretion any or all rights and remedies available to it against Contractor or any other guarantor or pledgor without impairing the City's rights and remedies in enforcing this Guaranty. The Guarantor hereby waives and agrees to waive at any future time at the request of the City to the extent now or then permitted by applicable law, any and all rights which the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations under, or to terminate, cancel, quit or surrender this Guaranty. The Guarantor hereby expressly waives, diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non- payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Contractor prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by the City of any performance bond or other collateral to assure the performance of Contractor's obligations under the Agreement. Guarantor shall not be released of its obligations hereunder as long as there is any claim by the City against Contractor arising out of the Agreement based on Contractor's failure to perfonn which has not been settled or discharged. 5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty, Guarantor agrees in the event of Guaranty's breach of its obligations including to pay reasonable attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder. 7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in, and pursuant to the laws o1, the State of Califomia and shall be govemed and construed in accordance with the laws of California without regard to its conflicts of laws, rules for all purposes including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal Jurisdiction over it by such courts. g. SeverabWty. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will have no effect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. • 9. Binding On Successors. his Guaranty shall inure to the benefit of the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Article of Incorporation and By-Laws, and that the person signing this Guaranty on its behalf has the authority to do so. • 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or . certified, first class postage prepaid, addressed as follows: y To the City: Thomas P. Genovese, City Manager City of La Quinta P. O. Box 1504 La Qupta, CA 92247 with a copy to the City's Legal Counsel at the same address. To the Guarantor. Guarantor. Burrtec Waste Group, Inc. By: (ti e) FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT FOR THE COLLECTION AND RECYCLING OF RECYCLABLE MATERIALS This first amendment (the "Amendment") to that certain agreement entitled "Amended and Restated Agreement for the Collection and Recycling of Recyclable Materials" (the "Agreement") is entered between the City of La Quinta (hereinafter "City") and Burrtec Waste and Recycling Services, LLC (hereinafter "Burrtec" and/or "Contractor") so as to be effective as of July 1, 2006. RECITALS A. City and Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert ("Waste Management") entered the Agreement, which is dated July 5, 2000. B. Waste Management's has requested that its rights and obligations as set forth in the Agreement be transferred and assigned to Burrtec, and City has consented to this request contingent upon various factors, including Burrtec's agreement to certain amendments to the Agreement, which amendments the parties desire to memorialize by entering this Amendment . COVENANTS Section 1. Contractor. The teen "Contractor" as used in the Agreement shall now refer to Burrtec. Section 2. Assumption of Obligations. By executing this Amendment, Burrtec agrees to assume all of Waste Managements right, title, and interest in and to the Agreement, and Burrtec agrees to timely discharge, perform or cause to be performed and to be bound by all of the liabilities, duties and obligations imposed in connection with the Agreement as if it had been the original party designated as the "Contractor" thereto. Included specifically, without limitation, in the obligations and liabilities assumed by Burrtec are those set forth in Article X of the Agreement. In this regard, Burrtec shall specifically assume any obligations and liabilities of Waste Management resulting from the application of the hazardous substances indemnification provisions of Section 10.2 in connection with the disposal of materials at facilities chosen by Waste Management or owned by Waste Management or any of its Affiliates. While as between Contractor and City this Agreement requires Contractor to assume any obligations and liabilities of Waste Management that may exist pursuant to the terms of the Agreement, it is not intended to abrogate any rights which Contractor may have pursuant to that certain asset purchase agreement entered between Burrtec and Waste Management, dated January 25, 2006, to seek indemnification or other remedies from Waste Management as a result of Contractor's obligations hereunder. Section 3. Maintenance of Existing Service Levels. Burrtec shall provide programs, staffing levels, and services that meet or exceed the programs, staffing levels and services provided by Waste Management prior to City's consent to the transfer and assignment of the Agreement, without regard to whether such programs, staffing levels or services are specifically called out in the Agreement or this Amendment. For instance, Waste Management allows any Residential Customer desiring to change Cart sizes to do so at no charge, and Burrtec agrees to continue this practice. Section 4. Insurance and Surety Bond: As a condition precedent to the effectiveness of City's consent to the transfer the Agreement to Burrtec, Burrtec shall provide evidence of insurance and a performance bond meeting the requirements of Articles V and VI of the Agreement. Section 5. Identification of Vehicles and Equipment. City understands Burrtec will utilize containers and collection vehicles in performance of the Agreement that it purchased from Waste Management. All such equipment utilized by Burrtec shall be uniformly painted as required by Article III of the Agreement. Burrtec shall not be required to repaint containers or collection vehicles purchased from Waste Management to reflect its corporate colors, however if it chooses to do so it shall accomplish repainting as expeditiously as reasonably possible. All collection vehicles utilized by Burrtec shall comply with applicable laws and regulations, including, those related to the use of alternative fuels, and at a minimum all vehicles used in residential and commercial routes shall be powered by low emission fuel sources. Section 6. Limitation on requests for Fuel Surcharge. As additional consideration for the City's consent to the transfer of the Agreement, Burrtec agrees that if during the remainder of the term it seeks the City's consent to implement a "fuel surcharge," and recognizing that City has unfettered discretion as to whether to permit any such surcharge, it will not do so until after July 1, 2007. Section 7. Residential Document Shredding Program Implementation. As additional consideration for the City's consent to the transfer of the Agreement, Burrtec agrees to implement a residential document shredding program at no additional cost. The residential shredding program shall be designed to meet at least the following minimum requirements. Not less than one time per calendar year, Contractor shall establish a location within City to which residents may deliver confidential documents, such as financial records. Contractor, or such vendor to whom it may contract to provide this service, shall take possession of all records delivered by residents to such location on the designated day(s) and cause them to be shredded on site. Thereafter, Contractor shall make all reasonable efforts to recycle the materials remaining after the shredding process is complete, and shall properly dispose of any remaining materials. Section 8. Audited Financial Statements: Burrtec shall provide a third party designated by City, such as its City Attorney or solid waste consultant, with its audited financial statements for calendar year 2006 and calendar year 2007 within five (5) Page 2 months of the end of such calendar years. The City acknowledges that these records are viewed by Burrtec as proprietary and confidential, and will endeavor to maintain the confidentiality of all proprietary information provided by Burrtec. Notwithstanding the foregoing, any documents provided to City that are public records are subject to being disclosed as may be required by law pursuant to a Public Records Act request. Section 9. Additional Reports/Records: The parties agree that Section 7.1 of the Agreement shall be amended to require maintenance of' the following records in addition to those already required: 1. Customer services and billing/payment records; 2. Number of refuse, recycling and green waste routes and rout hours by service category (residential, commercial, roll -off, and special services); 3. Facilities, equipment, and personnel used; 4. Number of refuse, recycling and green waste containers in service by frequency of collection for each customer group (residential, commercial, roll- off); and 5. Number of roll -off box pulls. Section 10. Transition Obligations: The parties agree that the Agreement shall be amended to add the following language to Section 21.2: At the end of the Tenn, or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent solid waste enterprise it designates to assure a smooth transition of services. Contractor's cooperation shall include, but not be limited to, providing route lists, billing information and other operating records needed to service all premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. Contractor shall provide any new solid waste enterprise with all keys, security codes and remote controls used to access garages, gates and bin enclosures. Contractor shall be responsible for coordinating transfer immediately after its final collection activities, so as to not disrupt services. Contractor shall provide City with detailed rout sheets containing service names and addresses, billing names and addresses, monthly rate and service levels (number and size of containers and pickup days) at least 90 days prior to the transition date, provide an updated list two weeks before the transition, and a final updated list with any changes the day before the transition. Contractor shall provide means of access to the new solid waste enterprise at least one full business day prior to its first day of Page 3 collection, and within sufficient time so as to not impede in any way the new solid waste enterprise from easily servicing all containers. Section 11. Liquidated Damages: The parties agree that the Agreement shall be amended to add a new Section 9.2 which shall read as follows: The City finds, and Contractor agrees, that as of the time of the execution of this Amendment, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations of Contractor. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination' of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. The parties further acknowledge that consistent, reliable Solid Waste collection service is of utmost importance to City and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Amendment and the Agreement. The parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, the parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Amendment, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at, the time that the Agreement was made. Page 4 Contractor City Initial Here Initial Here 7t Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below for each of the respective acts: Failure to provide services For each day that Contractor fails to provide any of the services required under this Agreement, commencing five (5) business days after written notice is provided by the City that Contractor is not providing required services: $500.00/day Failure to provide reports or records For each day that required monthly reports are late or incomplete, or that records required to be produced hereunder are not made available: _ . __ _ _ $50.00_/day _ For each day that required annual reports are late or incomplete: $100.00/day Failure to Cooperate with Service Provider Transition: For each day routing information, customer data and other operation information requested by City is received after City established due dates, both for preparation of a request for proposals and for new service providers implementation of service: ,$1,000.00/day For each day delivery of keys, access codes, remote controls, or other means of access to containers or container locations is delayed beyond one (1) day prior to new service provider servicing containers: $5,000/day Prior to assessing liquidated damages, City shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s) /non-performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City. Contractor -may present evidence in wtiithtg attdt rl—rougli testimony of its employees and others relevant to the incidents)/non-performance. City will provide Contractor with a written explanation of his or her determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City shall be final. Contractor shall pay any liquidated damages assessed by City within ten (10) days after they are assessed. If they are not paid within the ten (10) day period, City may proceed against the performance bond required by the Agreement or find Contractor in default and terminate this Agreement, or both. Page 5 Section 12. Guarantee of Contractor's Performance. Concurrent with executing this Amendment Contractor shall deliver to City a Corporate Guarantee, in the form attached hereto as Exhibit 1, executed by Burrtec Waste Group Inc. affirming that it shall act as guarantor of Contractor's obligations as set forth in the Agreement, as amended by this Amendment. Section 13. Reimbursement of City Expenses. As a condition precedent to the effectiveness of the provisions of this Amendment, Contractor shall pay City an amount equal to all administrative, legal and consulting costs it incurred in connection with negotiating, analyzing, and entering this Amendment. Such payment shall be taken from the deposit already provided to City by Contractor, with any amounts exceeding the amount of' the deposit due within 30 days of Contractor receiving an invoice from City for the foregoing expenses. Section 14. Effectiveness of Agreement. All provisions of the Agreement, excepting for those expressly amended herein, shall remain unchanged and in full force and effect. 114 WITNESS WHEREOF, the Parties hereto have executed this Amendment to be effective as of the date written above. Attest: CITY OF LA QUINTA By:(HOMAS'I. GENOVESE, City Manager By:���� VERONICA J. M • 1 CINO, ity Clerk Approved as to Form: JENSONttorney BURRTEC WASTE AND RECYCLING SERVICES By: Its: Page' 6 EXHIBIT 1 CORPORATE GUARANTY THIS GUARANTY (the "Guaranty) is given as of the 1st day of July, 2004, and is made with reference to the following facts and circumstances: A. Burrtec Waste and Recycling Services, Inc., hereinafter ("Contractor") is a an affiliate of Burrtec Waste Group (Guarantor). B. Contractor has assumed the obligations of Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert ("Waste Management") in that certain agreement with the City of La Quinta ("City") dated July 5, 2000 and entitled "Amended and Restated Agreement for the Collection and Recycling of Recyclable Materials" (the "Agreement"). C. Contractor has additionally entered into an agreement with City dated July 1, 2006 and entitled "First Amendment to Amended and Restated Agreement for the Collection and Recycling of Recyclable Materials" (the "First Amendment") D. It is a requirement of the First Amendment, and a condition to the City approving the transfer and assignment of the Agreement to Contractor, that Guarantor guaranty Contractor's performance of the Agreement, including as it has been modified by the First Amendment. E. Guarantor is providing this Guaranty to induce the City to approve the transfer of the Agreement and enter into the First Amendment. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally guarantees to the City the complete and timely performance, satisfaction and observation by Contractor of each and every term and condition of the Agreement, as amended and modified by the First Amendment, which Contractor is required to perform, satisfy or observe. In the event that Contractor fails to perform, satisfy or observe any of the terms and conditions of the Agreement, as amended and modified by the First Amendment, Guarantor will promptly and fully perform, satisfy or observe them in the place of the Contractor (including by causing the services required of Contractor to be performed by a Solid Waste Enterprise acceptable to City). Guarantor hereby guarantees payment to the City of any damages, costs or expenses which might become recoverable by the City from Contractor due to its breach of the Agreement, as amended and modified by the First Amendment. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and with respect to any payment obligation of Contractor under the Agreement, or the First Amendment, shall constitute a guarantee of payment and not of collection, and are not conditional upon the genuineness, validity, regularity or enforceability of the Agreement or First Amendment. In any action brought against the Guarantor to enforce, or for damages for breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that would be available to the Contractor in an action to enforce, or for damages for breach of, the Agreement as amended and modified by the Fust Amendment (other than discharge of, or stay of proceedings to enforce, obligations under the Agreement under bankruptcy law). 3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Contractor; (2) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (3) any waiver with respect to any of the obligations of the Agreement, as amended and modified by the First Amendment, guaranteed hereunder or the impairment or suspension of any of the City's rights or remedies against the Contractor; or (4) any merger or consolidation of the Contractor with any other corporation, or any sale, lease or transfer of any or all the assets of the Contractor. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under California Civil Code Section 2846, 2849, and 2850, including without limitation, the right to require the City to (a) proceed against Contractor, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Contractor or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in it sole discretion any or all rights and remedies available to it against Contractor or any other guarantor or pledgor without impairing the City's rights and remedies in enforcing this Guaranty. The Guarantor hereby waives and agrees to waive at any future time at the request of the City to the extent now or then permitted by applicable law, any and all rights which • the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations under, or to terminate, cancel, quit or surrender this Guaranty. The Guarantor hereby expressly waives, diligence, resentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non-payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Contractor prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by the City of any performance bond or other collateral to assure the performance of Contractor's obligations under the Agreement. Guarantor shall not be released of its obligations hereunder as long as there is any claim by the City against Contractor arising out of the Agreement based on Contractor's failure to perform which has not been settled or discharged. 5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attornev's Fees. In addition to the amounts guaranteed under this Guaranty, Guarantor agrees in the event of Guaranty's breach of its obligations including to pay reasonable attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder. 7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in, and pursuant to the laws of, the State of California and shall be governed and construed in accordance with the laws of California without regard to its conflicts of laws, rules for all purposes including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal jurisdiction over it by such courts. 8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will have no effect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. 9. Binding On Successors. This Guaranty shall inure to the benefit of the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Article of Incorporation and By -Laws, and that the person signing this Guaranty on its behalf' has the authority to do so. 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: To the City: Thomas P. Genovese, City Manager City of La Quinta P. 0. Box 1504 La Quinta, CA 92247 with a copy to the City's Legal Counsel at the same address. To the Guarantor: Guarantor: Burrtec Waste Group, Inc. By: (title) CORPORATE GUARANTY THIS GUARANTY (the "Guaranty) is given as of the 181 day of July, 2004, and is made with reference to the following facts and circumstances: A. Burrtec Waste and Recycling Services, Inc., hereinafter ("Contractor") is a an affiliate of Burrtec Waste Group (Guarantor). B. Contractor has assumed the obligations of Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert ("Waste Management") in that certain agreement with the City of La Quinta ("City") dated July 5, 2000 and entitled "Amended and Restated Agreement for the Collection and Recycling of Recyclable Materials" (the "Agreement'). C. Contractor has additionally entered into an agreement with City dated July 1, 2006 and entitled "First Amendment to Amended and Restated Agreement for the Collection and Recycling of Recyclable Materials" (the "First Amendment") D. It is a requirement of the First Amendment, and a condition to the City approving the transfer and assignment of the Agreement to Contractor, that Guarantor guaranty Contractor's performance of the Agreement, including as it has been modified by the First Amendment. E. Guarantor is providing this Guaranty to induce the City to approve the transfer of the Agreement and enter into the First Amendment. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally guarantees to the City the complete and timely performance, satisfaction and observation by Contractor of each and every term and condition of the Agreement, as amended and modified by the First Amendment, which Contractor is required to perform, satisfy or observe. In the event that Contractor fails to perform, satisfy or observe any of the terms and conditions of the Agreement, as amended and modified by the First Amendment, Guarantor will promptly and fully perform, satisfy or observe them in the place of the Contractor (including by causing the services required of Contractor to be performed by a Solid Waste Enterprise acceptable to City). Guarantor hereby guarantees payment to the City of any damages, costs or expenses which might become recoverable by the City from Contractor due to its breach of the Agreement, as amended and modified by the First Amendment. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and with respect to any payment obligation of Contractor under the Agreement, or the First Amendment, shall constitute a guarantee of payment and not of collection, and are not conditional upon the genuineness, validity, regularity or enforceability of the Agreement or First Amendment. In any action brought against the Guarantor to enforce, or for damages for breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that would be available to the Contractor in an action to enforce, or for damages for breach of, the Agreement as amended and modified by the First Amendment (other than discharge of, or stay of proceedings to enforce, obligations under the Agreement under bankruptcy law). 3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Contractor; (2) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (3) any waiver with respect to any of the obligations of the Agreement, as amended and modified by the First Amendment, guaranteed hereunder or the impairment or suspension of any of the City's rights or remedies against the Contractor; or (4) any merger or consolidation of the Contractor with any other corporation, or any sale, lease or transfer of any or all the assets of the Contractor. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under Califomia Civil Code Section 2846, 2849, and 2850, including without limitation, the right to require the City to (a) proceed against Contractor, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Contractor or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in it sole discretion any or all rights and remedies available to it against Contractor or any other guarantor or pledgor without impairing the City's rights and remedies in enforcing this Guaranty. The Guarantor hereby waives and agrees to waive at any future time at the request of the City to the extent now or then permitted by applicable law, any and all rights which the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations under, or to tenninate, cancel, quit or surrender this Guaranty. The Guarantor hereby expressly waives, diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non-payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Contractor prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by the City of any performance bond or other collateral to assure the performance of Contractor's obligations under the Agreement. Guarantor shall not be released of its obligations hereunder as long as there is any claim by the City against Contractor arising out of the Agreement based on Contractor's failure to perform which has not been settled or discharged. 5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty, Guarantor agrees in the event of Guaranty's breach of its obligations including to pay reasonable attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder. 7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in, and pursuant to the laws of, the State of California and shall be governed and construed in accordance with the laws of California without regard to its conflicts of laws, rules for all purposes including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal jurisdiction over it by such courts. 8. Severabilitv. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will have no effect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. 9. Binding On Successors. This Guaranty shall inure to the benefit of the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Article of Incorporation and By -Laws, and that the person signing this Guaranty on its behalf has the authority to do so. 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: To the City: Thomas P. Genovese, City Manager City of La Quinta P. 0. Box 1504 La Quinta, CA 92247 with a copy to the City's Legal Counsel at the same address. To the Guarantor: Guarantor: Burrtec Waste Group, Inc. By: AGREEMENT BETWEEN CITY OF LA QUINTA AND BURRTEC WASTE AND RECYCLING SERVICES, LLC FOR SOLID WASTE HANDLING SERVICES EFFECTIVE JULY 1, 2007 384/015610-00891 787054.08 a05111/07 TABLE OF CONTENTS Page SECTION 1. RECITALS 2 SECTION 2. DEFINITIONS 2 2.1 AB 939 2 2.2 Affiliate 2 2.3 1 Animal Waste 3 2.4 Bins 3 2.5 Bulky Items 3 2.6 Cart 3 2.7 City 3 2.8 City Limits 3 2.9 City Manager 4 2.10 Collect/Collection 4 2.11 Commercial Premises 4 2.127 Container 4 2.13 Contractor 4 2.14 Customer 4 2.15 Dwelling Unit 4 2.16 Effective Date 4 2.1 Environmental Laws 4 2.18 Franchise Area 5 2.19 Franchise Fee 5 2.20 Gross Receipts 5 2.21 Hazardous Substance 5 2.24 Hazardous Waste 6 2.231 Multi -Family Dwelling 6 2.24 Municipal Code 6 2.25 Person 6 2.26 Premises 6 2.21 Recyclable Material 6 2.28 Residential Premises 7 2.24 Rolloff Box 7 2.30 Single Family Dwelling 7 2.31 Solid Waste 7 2.32 Solid Waste Handling Services 7 2.33 Special Wastes 7 2.34 Temporary Service 7 2.35 Term 8 SECTION 3. GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE HANDLING SERVICES FROM ALL RESIDENTIAL AND COMMERCIAL PREMISES, AND FOR PROVIDING TEMPORARY SOLID WASTE HANDLING SERVICE 8 3.1 Scope of Franchise 8 384015610-0089 78705408 a05/111 7 -1- Page 3.2 Matters Excluded from Scope of Franchise 8 SECTION 4. ENFORCEMENT OF EXCLUSIVITY 9 SECTION 5. ACCEPTANCE; WAIVER 10 SECTION 6. TERM 10 SECTION '. CONDITIONS TO EFFECTIVENESS OF AGREEMENT 10 7.1 ' Accuracy of Representation 11 7.2 Absence of Litigation 11 7.3 Furnishing of Insurance, Bond, Letter of Credit, and Corporate Guarantee 11 7.4 Effectiveness of City Council Action 11 7.5 Payment of Fees and Costs 11 SECTION S. SOLID WASTE HANDLING SERVICES PROVIDED BY CONTRACTOR 8.1 General 8.1.1 Equipment 8.1.2 Performance Standards 8.1.3 Noise and Disruption 8.1.4 Collection Times 8.1.5 Collection Schedule 8.1.6 Commingling of Routes 8.1.7 Replacement of Containers 8.1.8 Contractor's Containers 8.1.9 Missed Pick-ups 8.1.10 Record of Non -collection 8.2 Residential Solid Waste Handling Service Automated Collection Manual Collection 3841015610-0089 i 787054.08 a05/111)7 8.2.1 Single Family Dwellings — 8.2.2 Single Family Dwellings — 8.2.3 Backyard Service 8.2.4 Single Family Dwellings 8.2.5 Recycling Program for Single Family Dwellings Using Carts 8.2.6 Recycling Program for Single Family Dwellings Using Manual Service 8.2.7 Recycling Program for Single Family Dwellings Using Bin Service 17 8.2.8 Green Waste Program for Single Family Dwellings Using Carts 17 8.2.9 Green Waste Program for Single Family Dwellings Using Bin Service 17 8.2.10 Multi -Family Dwelling Green Waste Program 18 8.2.11 Use of Bins for Multi -Family Dwelling Customers 18 8.2.12 Multi -Family Dwelling Recycling Program 18 8.2.13 Residential Bulky Item Service 19 8.2.14 Bulky Item Diversion 19 — Bin Collection 11 11 11 11 12 12 12 12 12 13 14 14 14 14 15 15 16 16 16 -11- 8.3 8.4 8.5 8.6 8.7I SECTION I9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE HANDLING SERVICE COLLECTION VEHICLES 28 9.1 General 28 9.2 Air Quality/Fuel Requirements 28 9.3 Specific Requirements 28 9.4 Costs of Operation and Damages 30 9.51 City Inspection 30 9.6', Correction of Defects and Removal of Vehicles from Use within City 30 Pate 8.2.15 Proper Handling of Bulky Items 19 8.2.16 Residential Sharps Collection Program 19 8.2.17 Residential Non -Controlled Medication Collection Program 20 8.2.18 Residential Used Oil and Oil Filter Collection Program 20 Commercial Solid Waste Handling Services 20 8.3.1 Commercial Bins and Rolloff Boxes 20 8.3.2 Commercial Carts 20 8.3.3 Commercial Recycling Program 21 8.3.4 Restaurant Food Waste Diversion Program 21 8.3.5 Commercial Bulky Item Service 22 Temporary Services 22 Recycling Obligations and Public Education Program 23 8.5.1 Minimum Requirements for Delivery of Recyclable Materials and Green Waste 23 8.5.2 Extent of Applicable Franchise Rights 24 8.5.3 AB 939 Obligations, Guarantee, and Indemnification 24 8.5.3.1 Warranties and Representations 24 8.5.3.2 Waste Reduction and Program Implementation 24 8.5.3.3 Guarantee and Indemnification 24 8.5.4 Waste Generation/Characterization Studies 25 8.5.5 Implementation of Additional Diversion Services 26 Additional Services 26 8.6.1 Biennial Document Shredding Events 26 8.6.2 City Sponsored Events 26 8.6.3 Recycling Assistance for Special Events 26 8.6.4 Bin and Bin Enclosure Cleaning 27 8.6.5 Public Service Calls from City Departments 27 8.6.6 Holiday Trees 27 8.6.7 Handling of Electronic Waste 27 8.6.8 Acceptance of Recyclable Materials and Household Hazardous Waste 27 Special Services 27 SECTION 10. CONTRACTOR'S SOLID WASTE HANDLING SERVICE PERSONNEL 31 10.1 Uniforms 31 10.2 Identification of Employees 31 10.3 Employee List 31 384/015610-00891 787054 08 605/11/07 Page 10.4 Driver's License 31 10.5 Discontinued Use of Unsatisfactory Employees 31 10.6 Training and Legal Compliance 31 10.7 Customer Service 31 10.7.1 Local Office; Local Participation 31 10.7.2 Telephone Customer Service Requirements 32 10.7.3 Complaint Documentation 33 10.7.4 Resolution of Customer Complaints 33 10.7.5 Government Liaison 33 10.8 Education and Public Awareness 34 10.8.1 General 34 10.8.2 Implementation and On-going Education Requirements 34 SECTION 11. 11.1 11.2 11.3 Franchise Fee 11.4 Services at City Facilities 11.5 CONTRACTOR'S CONSIDERATION 35 Reimbursement of Renegotiation Costs 35 Administrative Cost Reimbursement 35 35 36 AB 939 Fee 36 CHARGE FOR LATE PAYMENTS 38 SECTION 12. SECTION '13. 13.1 CONTRACTOR'S BILLING SERVICES AND SYSTEMS 38 Residential Customers 38 13.1.1 General — Tax Roll Billing 38 38 13.1.2 Credit for Residential Customers Receiving Bin Service 13.1.3 Refunds for Vacant Properties 13.2 Billing and Payment for Commercial and Multi -Family Customers 13.2.1 General 13.2.2 Unoccupied Premises 13.2.3 Delinquent Accounts 13.2.4 Minimum Requirements for Billing Statements 13.2.5 Billing System 13.2.5.1 Computerization of Account Information 13.2.5.2 Minimum Computer Programming Requirements 40 13.2.6 Billing Inquiries 41 13.2.7 Distribution of Public Information 41 13.3 Payment, Accounting Systems 41 13.3.1 Collection and Processing of Payments 41 13.3.1.1 Accounting and Deposit of Funds 41 13.3.1.2 Allocation of Funds 41 13.3.1.3 Allocation of Funds by City 42 13.3.1.4 Tax Roll Payments Limited 42 38 39 39 39 39 40 40 40 SECTION 14. FAITHFUL PERFORMANCE 42 384'015610-0089 787051.08 a05/I1/07 -iv • - Page SECTION 15. INSURANCE COVERAGE 43 15.1 Minimum Scope of Insurance. 43 15.2 Minimum Limits of Insurance. 43 15.3 Deductibles and Self -Insured Retentions 44 15.4 Other Insurance Provisions. 44 15.4.1 General Liability and Automobile Liability Coverages 44 15.4.2 Workers' Compensation and Employers Liability Coverage 45 15.4.3 All Coverages 45 15.5 Acceptability of Insurers 45 15.6 Verification of Coverage 45 15.7 Loss or Reduction in Insurance 45 SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND LIMITATIONS 45 16.1 General 45 16.2 "Assignment" to be Broadly Interpreted 46 16.3 Nature of Agreement — Personal to Contractor 46 16.4 Procedure for Consideration of Assignment 46 16.5 Assignment to a Family Member 48 SECTION 17. REVIEW OF SERVICES AND PERFORMANCE 48 17.1 Performance Hearing 48 17.2 Performance Satisfaction Survey 49 SECTION 18. CITY'S REMEDIES; DEFAULT AND TERMINATION 49 18.1 Notice of Default 49 18.2 Failure to Cure 50 18.3 Review by City Manager 50 18.4 City Council Review 50 18.5 Performance During Reviews 50 18.6 Termination without Right to Cure 51 18.7 Liquidated Damages 51 18.7.1 General 51 18.7.2 Service Performance Standards; Liquidated Damages for Failure to Meet Standards 52 18.7.3 Calculations for Liquidated Damages 52 18.7.3.1 Collection Reliability 52 18.7.3.2 Collection Quality 53 18.7.3.3 Customer Responsiveness 53 18.7.3.4 Timeliness of Submissions to City 53 18.7.4 Process for Assessment of Liquidated Damages 54 18.7.5 Timing of Payment 54 SECTION19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING 54 19.1 Administrative Hearing 54 19.2 Other Remedies; Claims 54 19.3 Actions for Damages 55 384,015610-0089 78705108 a05/11/07 -v- SECTION' 20. SECTION' 21. 21.,1 21.2 Page CITY'S ADDITIONAL REMEDIES 55 RIGHTS OF CITY TO PERFORM DURING EMERGENCY 55 Provision of Service 55 Possession of Equipment 56 21.3 Exclusions from Right to Possession of Equipment without Compensation 56 SECTION22. SECTION 23. 23.1 23.2 23.3 23.4 23.5 23.6 23.7 SECTION24. 24.1 24.2 24.3 24.4 PRIVACY 56 REPORTS AND ADVERSE INFORMATION 56 Monthly Reports 57 Quarterly Reports 57 Annual Reports 57 Financial Report 58 Adverse Information 58 Disaster Plan 59 Failure to Report 59 COMPENSATION 59 Contractor Rates 59 Resolution of Disputes Regarding Rate Adjustments 60 Annual Consumer Price Index Adjustments to Service Component 60 Limitations to Annual CPI Adjustments to Service Component 60 24.4.1 Rate Guarantee 60 24.4.2 Six Percent (6%) Cap 61 24.4.3 Compliance with Agreement 24.5 Disposal Component Adjustments 24.6 Discretionary Adjustments 24.7 Grants 61 61 61 62 SECTION 25. IDENTIFICATION OF CONTRACTOR 62 SECTION 26. CITY'S FLOW CONTROL OPTION 62 SECTION 27. INDEMNIFICATION 63 27.1 General 63 27.2 Hazardous Substances Indemnification 64 SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS 65 28.1 Maintenance and Inspection of Records 65 28.2 CERCLA Defense Records 65 28.3 Audits 66 28.3.1 Annual Examination of Services 66 28.3.2 Discretionary Audits 66 28.3.3 Route Audit 66 SECTION 29. TRANSITION OBLIGATIONS 68 3841015610-0089 787054 08 605/I 1,07 -vi- Page SECTION 30. GENERAL PROVISIONS 68 30.1 Force Majeure 68 30.2 Independent Contractor 68 30.3 Pavement Damage 69 30.4 Property Damage 69 30.5 Right of Entry 69 30.6 Law to Govern; Venue 69 30.7 Amendment 69 30.8 Notices 69 30.9 Guarantee of Contractor's Performance 70 30.10 Savings Clause 70 30.11 Exhibits Incorporated 70 30.12 Joint Drafting 70 30.13 Attorneys' Fees and Litigation Costs 70 30.14 City's Authorized Agent 71 30.1'5 Integrated Agreement 71 30.16 Section Headings 71 30.17 Compliance with Law 72 EXHIBIT A MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES EXHIBIT B CONTAINER/BIN SPECIFICATIONS EXHIBIT C CITY FACILITIES EXHIBIT D CITY SPONSORED EVENTS EXHIBIT E CORPORATE GUARANTEE 384,015610-0089 787054 08 a05/11/07 ..vr1= AGREEMENT This Agreement ("Agreement") is entered into to be effective as of the 1st day of July 2006, by and between the City of La Quinta ("City") and Burrtec Waste and Recycling Services, LLC ("Contractor") (collectively, the "Parties") to provide an exclusive franchise for Solid Waste Handling Services within the City. RECITALS: A. The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939"), has declared that it is in the public interest to authorize and require local agencies to make adequate provision for the disposal of all Solid Waste within their jurisdictions. B. Pursuant to California Public Resources Code Section 40059(a)(1), the City Council of the City has determined that the public health, safety, and welfare require that an exclusive franchise agreement be awarded to a qualified solid waste enterprise for Solid Waste Handling Services within the City Limits. D. City previously entered two franchise agreements, one for Solid Waste Handling Services and one for the collection of recyclable materials, with Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert ("Waste Management"), dated June 30, 2000 (collectively referred to as the "Original Agreement"). E. Waste Management subsequently desired to assign its obligations and liabilities pursuant to the Original Agreement to Contractor, and City approved such assignment by Waste Management to Contractor, conditioned upon and subject to an assignment and assumption agreement approved by City (the "Assignment Agreement"). The Assignment Agreement and the Original Agreement are collectively referred to herein as the Prior Agreements. F. City and Contractor are mindful of the provisions of the laws governing the safe collection, transport, recycling, and disposal of Solid Waste, including AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to their respective roles and to memorialize that by entering into this Agreement, City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, who is "arranging for" the collection, transport for disposal, composting, and recycling of municipal Solid Waste in the City which may contain hazardous substances. City and Contractor understand and agree that it is Contractor, and not City, who will arrange to collect Solid Waste , that City has not, and, by this Agreement does not, instruct Contractor on its collection methods, nor supervise the collection process, nor do the Parties intend to place title to such Solid Waste in City, but rather intend that whatever, if any, title in and to such Solid Waste that otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Contractor, and further that if Contractor gains title to such Solid Waste it is by operation of law and agreement with its Customers and is not the result of this Agreement. By entering this Agreement City and Contractor further desire to confirm that Contractor has agreed to indemnify the City in connection with any claims relating to the inadvertent or intentional 384;015610-0089 787054 08 a05711/07 collection, transportation and/or disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. G. Contractor has agreed, as part of this Agreement, to provide such services as are necessary or desirable to ensure City complies with the requirements of AB 939 and Public Resources Code Section 40000, et seq. COVENANTS: Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the Parties, City and Contractor hereby agree as follows: SECTION 1. RECITALS The Parties acknowledge the above recitals are true and correct and incorporate them herein as if they were fully restated. SECTION 2. DEFINITIONS Whenever any term used in this Agreement has been defined by the California Public Resources Code, the definition of such term set forth therein shall apply unless the term is otherwise defined in this Agreement. 2.1 AB 939 "AB 939" shall mean the California Integrated Waste Management Act of 1989, currently codified as California Public Resources Code Section 40000 et seq., as it may be amended from time to time. 2.2 Affiliate "Affiliate" means a business in which Contractor owns a direct or indirect ownership interest, a business (including corporations, limited and general partnerships and sole proprietorships) which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. 384015610-0089 787054 08 405/11/07 -2- 2.3 Animal Waste "Animal Waste" shall mean animal carcasses, dead animals, and/or parts or portions of dead animals. Animal Waste shall not include manure. 2.4 Bing "Bids" shall mean a metal Container, including dumpsters, compactors, and any similar such devices with a capacity of under ten (10) cubic yards. 2.5 Bulky Items "Bulky Items" means Solid Waste that cannot and/or would not typically be accommodated within a Cart including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators with and without Freon, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); Residential wastes (including wood waste, tree branches, scrap wood, in the aggregate not exceeding one cubic yard per Collection); and clothing. For purposes of this Agreement, and notwithstanding any provision hereof to the contrary, Bulky Items shall specifically include electronic equipment (including stereos, televisions, computers and monitors, cellular phones, VCRs, microwaves and other similar items commonly known as "brown goods" and "e -waste"), batteries, and florescent light tubes. Bulky Items do not include car bodies, Construction and Demolition Debris or items requiring more than two persons to remove. A single Bulky Item is intended to mean an single appliance or other item meeting the above definition, or a single "bundle" of small items (such as tree limbs or stumps) that have been secured together so as to be able to be lifted and moved by no more than two men. In the event a question arises as to whether a specific item, or category of items meets the definition of Bulky Items, City shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties. 2.6 Cart "Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi -automated process, as opposed to a manual process of lifting and dumping. 2.7 City "City" shall mean the City of La Quinta, a municipal corporation, located in Riverside County, California. 2.8 City Limits "City Limits" shall mean the territorial boundaries of the City together with all amendments and changes thereto, which boundaries are depicted on maps, incorporated herein by reference, that are kept on file in the office of the City Clerk of the City of La Quinta, and which are from time to time amended to reflect changes. 384/015610-0089 787054 08 405/1 1417 -3- 2.9 City Manager "City Manager" shall mean the City Manager of the City of La Quinta or his or her designee. 2.10 Collect/Collection "Collect" or "Collection" shall mean to take physical possession of, transport, and remove Solid Waste from a premises. 2.11 Commercial Premises "Cotnmercial Premises" means Premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property. Notwithstanding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement Premises upon which Hotels, and Motels are operated, and Premises upon which four or more Dwelling Units exist shall be deemed to be Commercial Premises. 2.12: Container "Container" means any and all types of Solid Waste receptacles, including Carts, Bins, and receptacles provided by Customers. 2.13 Contractor "Contractor" shall mean Burrtec Waste and Recycling Services, LLC, the entity granted the franchise pursuant to this Agreement, or any party permitted pursuant to the terms hereof to become the successor or assignee thereof. 2.14 Customer "Customer" shall mean any person receiving Solid Waste Handling Services from Contractor 'within the Franchise Area. 2.15 Dwelling Unit "Dwelling Unit" shall have the meaning set forth in the Municipal Code. 2.16 Effective Date "Effective Date" shall mean July 1, 2007. 2.17 Environmental Laws "Environmental Laws" means all federal and state statutes, county, local and City ordinances concerning public health, safety and the environment including, by way of example 384/015610-0089 787054 08 a05/11/07 -4- and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §6901 et Leg:, the Federal Clean Water Act, 33 USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §2601, et seq.; the Occupational Safety and Health Act, 29 USC §651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code §25100 et seq.; the Carpenter - Presley -Tanner Hazardous Substance Account Act, California Health and Safety Code §25300 et sem.; the Porter -Cologne Water Quality Control Act, California Water Code §13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code §25249.5 et seg.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 2.18 Franchise Area "Franchise Area" shall mean all Premises within the City Limits, including Premises which maybe annexed and thereby added to the City Limits following the Effective Date. 2.19 Franchise Fee "Franchise Fee" shall mean the franchise fee set forth and more fully defined in Section 11 hereof. 2.20 Gross Receipts "Gross Receipts" shall mean and include all monies, fees, charges, consideration, and revenue received, charged or imputed to Contractor and any Affiliate of Contractor, in connection with, arising from, or in any way attributable to the Solid Waste Handling Services carried out by or on behalf of Contractor pursuant to this Agreement. Gross Receipts includes, without limitation, monthly Customer charges for Collection of Solid Waste, without subtracting Franchise Pees, fees imposed and collected pursuant to this Agreement, sums collected in connection, with Temporary Services, and transportation charges. Notwithstanding anything herein to the contrary, Gross Receipts shall not include either: (1) revenues from the sale of salvageable or Recyclable Material, (2) AB 939 Fees, as defined herein, paid to City, or (3) the that portion of the rates charged to and paid by Customers for Solid Waste Handling Services which is designated to reimburse Contractor for the cost of disposal (i.e., the disposal component), the maximum rates for which are set forth on Exhibit A. 2.21 Hazardous Substance "Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated dr listed (directly or by reference) as "Hazardous Substances", "hazardous materials", "Hazardous Wastes", "toxic waste", "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC §9601 et sg.(CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC §5101, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety Code §§25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC §7401 et seq.; and (vii) California Water Code §13050; (b) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or 384/015610-0089 787054 08 405/11107 -5- acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local laws or regulations, including any of the Environmental Laws, currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas and synthetic fuel products, and by- products. 2.22 Hazardous Waste "Hazardous Waste" means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC §6901 et all future amendments thereto, and all rules and regulations promulgated thereunder. 2.23 Multi -Family Dwelling "Multi -Family Dwelling" means either (i) any building or lot containing four or more Dwelling Units, or (ii) any building or lot containing two or more Dwelling Units which Contractor determines (and City agrees) must receive Solid Waste Handling Services through the use of shared Bins, since they are not reasonably able to receive individualized Solid Waste Handling Service through the use of Carts. Any ambiguity as to whether a Customer's Premises qualifies as a Single Family Dwelling or Multi -Family Dwelling shall be resolved by the City Manager whose decision shall be final. 2.24 Municipal Code "Municipal Code" shall mean City's Municipal Code. 2.25 Person "Person" shall mean any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California, the County of Riverside, towns, cities, and special purpose districts. 2.26 Premises "Premises" shall mean any land, building, and/or structure within the City Limits where Solid Waste is generated or accumulated. 2.2'7 Recyclable Material "Recyclable Material" or "Recyclables" shall mean that Solid Waste discarded within the Franchise Area which is capable of being recycled. 384/015610-0089 787084 08 a05 1 1107 -6- 2.28 Residential Premises "Residential Premises" shall mean all premises upon which Dwelling Units exist. Notwithstartding any provision to the contrary herein, in the Municipal Code, or otherwise, for purposes of this Agreement Premises upon which hotels, and motels are operated, and Premises upon which, four or more Dwelling Units exist shall be deemed to be Commercial Premises. 2.29 Rolloff Box "Rolloff Box" means Solid Waste Collection Containers of ten (10) yards or larger, including compactors. 2.30 Single Family Dwelling "Single Family Dwelling" means a building or lot containing one Dwelling Unit, and for purposes of this Agreement includes buildings and lots with more than one Dwelling Unit where such Dwelling Units are determined by the City to be reasonably able to receive individualized Solid Waste Handling Service and the number of Dwelling Units on the premises is less than four (4) (i.e., properties commonly referred to as a duplex or a triplex.) Any ambiguity as to whether a Customer's Premises qualifies as a Single Family Dwelling or Multi -Family Dwelling shall be resolved by City. 2.31 Solid Waste "Solid Waste" shall mean and include all discarded putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, Refuse, rubbish, construction waste, industrial waste, commercial Solid Waste, Bulky Items, and any other discarded solid, semisolid, and liquid waste permitted to be disposed of at a Class III landfill and which are included within the definition of "Nonhazardous Solid Waste" set forth in the California Code of Regulations, as it may be amended from time to time. Solid Waste does not include hazardous (Class I) waste, low-level radioactive waste, untreated medical waste, or Special Wastes as defined herein. 2.32 Solid Waste Handling Services "Solid Waste Handling Services" means the Collection, transfer, transport, recycling, processing, and disposal of Solid Waste. 2.33 Special Wastes "Special Wastes" shall mean wastes other than Solid Waste including sewage, sludge, industrial sludge, asbestos, auto bodies, tires, used motor oil, hazardous waste, Animal Waste, explosive substances, radioactive materials, and other materials which may not be disposed of at a Class III landfill or which require special handling. 2.34 Temporary Service "Temporary Service" shall mean Solid Waste Handling Services provided by Contractor on an as -needed and temporary basis to any Premises within the City in conjunction with 384015610-0089 787054 08 905/11/07 -7- construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Rolloff Boxes. 2.35 Term "Term" shall have the meaning ascribed in Section 6 of this Agreement. SECTION 3. GRANT OF EXCLUSIVE FRANCHISE FOR SOLID WASTE HANDLING SERVICES FROM ALL RESIDENTIAL AND COMMERCIAL PREMISES, AND FOR PROVIDING TEMPORARY SOLID WASTE HANDLING SERVICE 3.1 Scope of Franchise Except as hereinafter expressly set forth, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive contract, right, and privilege to Collect, transport, and dispose of all Solid Waste generated or accumulated within the Franchise Area. The exclusive franchise; right and privilege to provide Solid Waste Handling Services within City granted to Contractor by this Agreement shall be interpreted to be consistent with all applicable state and federal laws, now in effect and adopted during the term of this Agreement, and the scope of this Agreement shall be limited by all applicable current and developing laws and regulations. In the event that future interpretations of current law or future enactments limit the ability of City to lawfully grant Contractor the scope of services as specifically set forth herein, Contractor agrees that the scope of this Agreement will be limited to those services and materials which may be lawfully provided, and that City shall not be responsible for any lost profits claimed by Contractor as a result thereof. 3.2 Matters Excluded from Scope of Franchise Notivithstanding any other provisions set forth in this Agreement to the contrary, the exclusive franchise granted herein shall exclude the Collection, transportation, recycling, and disposal of: (A) any Solid Waste otherwise within the scope of this Agreement which is transported, by a Self Hauler as that term is used in the Municipal Code, or any other City ordinance, resolution, regulation or policy, as such may be adopted or amended from time to time; (B) the sale or donation of Recyclable Material by the person or entity that generated such Recyclable Material (the "Generator") to any person or entity other than Contractor; provided, however, to the extent permitted by law, if the Generator is required to pay monetary or non -monetary consideration for the Collection, transportation, transfer, or processing of Recyclable Material, the fact that the Generator receives a reduction or discount in price (or in other terms of the consideration the Generator is required to pay) shall not be considered a sale or donation; 384/015610-0089 787054 08 305/11/07 -8- (C) any Solid Waste otherwise within the scope of this Agreement which is Collected or transported to a disposal or recycling facility by City employees in the course and scope of their employment with City; (D) the Collection, transportation, or disposal of Hazardous Waste, biohazardous waste, untreated medical waste, infectious waste, Animal Waste, or other materials which do not constitute Solid Waste; (E) the Collection, transportation, and disposal of Construction and Demolition Waste by a contractor, handyman, repairman, or other similar service provider, as an incidental part of the services provided to its Customers, rather than as a hauling service, provided that such waste is not Collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials; (F) the Collection, transportation, and disposal of green waste and related Solid Waste by a gardener, or landscaper, as an incidental part of the gardening or landscaping services provided to its Customers, rather than as a hauling service provided that such Solid Waste is not collected or transported by a third party hired for the primary purpose of Collecting and transporting said materials; (G) Solid Waste Handling Services provided by any Person having a legal right to continue doing so, pursuant to Public Resources Code Section 49520, et. seq., or otherwise, as long as and to the extent such legal right continues to exist; except that to the degree any territory in which Contractor has a franchise granted by another governmental entity is annexed into City during the Term, Contractor agrees the provisions of this Agreement shall apply to such territory and further acknowledges that this Agreement constitutes any notice required by the Public Resources Code in connection therewith. SECTION 4. ENFORCEMENT OF EXCLUSIVITY Contractor shall be responsible for enforcing the exclusivity of this Agreement. City shall have the right to enforce the exclusivity provisions hereof if, in its absolute and sole discretion, it chooses to do so, but City shall have no obligation to do so for the benefit of Contractor or otherwise. City additionally shall have the right, but not the obligation, to request that Contractor enforce the exclusivity provisions hereof. Contractor shall have an affirmative obligation to enforce such exclusivity provisions when requested to do so by City. Should City take administrative, law enforcement, or other legal action to protect Contractor's exclusive rights, or otherwise enforce the exclusivity of this Agreement (including the adoption of any resolution, ordinance, a public outreach and/or education program) intended to facilitate the enforcement of the exclusive rights granted herein, Contractor shall actively participate in, and fund, the same, and shall reimburse City for its all administrative, law enforcement, or other legal costs and fees related to any such action unless Contractor provides advance written notice to City of its opposition to such activity. 384/015610-0089 787054.08 a05/11/07 -9- SECTION 5. ACCEPTANCE; WAIVER Contractor agrees to be bound by and comply with all the requirements of this Agreement. Contractor waives Contractor's right to change the terms of this Agreement under Federal, State, or local law, or administrative regulation. Contractor waives any right or claim to serve the City or any part of the City under any prior grant of franchise, contract, license, or permit issued or granted by any governmental entity including any right under Section 49520 of the Public Resources Code. Additionally, by and upon the execution of this Agreement, Contractor agrees to the termination of the Prior Agreements as of the Effective Date, agrees to waive any and all rights under the Prior Agreements, and agrees to release and hold the City harmless from any of the City's obligations thereunder (excepting, however, the right to compensation for services provided at the rates approved by City as of the Effective Date); provided, however, nothing contained in this provision is intended to or shall relieve Contractor from any obligation existing under the Prior Agreements pertaining to insurance, indemnification, or other legal obligations to City or Customers (as opposed to obligations to provide service pursuant to the terms thereot), or from any obligation set forth in the Prior Agreements which are called out as surviving the termination thereof, and all such obligations, including specifically those indemnification obligations relating to Environmental Laws, general liability, and AB 939 shall survive the termination of the Prior Agreements. SECTION 6. TERM The term of this Agreement (the "Term") shall be for the period of time commencing on July 1, 2007, and ending at midnight on June 30, 2016, unless this Agreement is h,uuinated sooner pursuant to Section 18 hereof, or otherwise. At the conclusion of the Term, the City shall have the option, which it may exercise in its sole discretion, to extend the Term of this Agreement for up to twelve (12) months. The City may exercise this extension option by giving 90 -day advance written notice to Contractor prior to the expiration of the initial Term. If such extension notice is provided by City, the Agreement will automatically renew monthly, up to a maximum of 12 months. Such automatic renewals shall cease, and this Agreement shall temiinate, upon the earlier of: (i) the expiration of the aforementioned 12 months, or (ii) 60 days following the date upon which City gives Contractor written notice of termination. Upon receipt of City's decision to exercise its extension option, Contractor shall continue to provide services as set forth herein, and shall be bound by all obligations hereunder, for the period during which the Term is extended. SECTION 7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT The satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Contractor's continued right to the benefits conveyed herein: 384/0[5610-0089 787054.08 a05/11,07 -10- 7.1 Accuracy of Representation All representations and warranties made by Contractor and set forth in this Agreement shall be accurate, true, and correct on and as of the Effective Date of this Agreement. 7.2 Absence of Litigation There shall be no litigation pending in any court challenging the award of this Franchise to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. 7.3 Furnishing of Insurance, Bond, Letter of Credit, and Corporate Guarantee Contractor shall have furnished evidence of the insurance, bonds and letter of credit required by Sections 14 and 15, and shall comply with all ongoing requirements relating thereto, and shall provide the Corporate Guarantee required by Section 29.9. 7.4 Effectiveness of City Council Action City's Resolution approving this Agreement shall have become effective pursuant to California law. 7.5 Payment of Fees and Costs Contractor shall have made payment to City of all fees, costs and other payments due as of the Effective Date as more fully set forth in Section 11. SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY CONTRACTOR 8.1 General 8.1.1l Equipment Contractor shall furnish all labor, supervision, materials, supplies, and equipment necessary to provide for all services required by the terms of this Agreement. 8.1:2 Performance Standards Contractor shall perform Solid Waste Handling Services as required hereunder in a workmanlike manner consistent with good housekeeping standards and all relevant provisions of the Municipal Code. Contractor's equipment shall be water -tight, leak proof and maintained in pod repair with the goal of preventing any leaks or spills onto public or private property, and eliminating objectionable odors. Contractor shall immediately clean up any spills from its equipment of which it becomes or is made aware. 384015610-0089 78705408 a05/11107 -11- 8.1.3 Noise and Disruption Contractor shall perform Solid Waste Handling Services as required hereunder in such a manner as to minimize noise and other disruptive impacts including, without limitation, those upon traffic. Contractor shall use its best efforts to coordinate its Collection schedules such that street sweeping on any given street shall occur the business day following Collection of Solid Waste by Contractor. 8.1.4 Collection Times All Solid Waste and Recyclable Material shall be Collected between the hours of 5:30 a.m. to 6:00 p.m., Monday through Saturday. 8.1.5 Collection Schedule Contractor shall establish Collection routes and a Collection schedule which shall be approved by the City Manager such that Customers at all Residential and Commercial Premises within the City will have not less than one established Collection day each week. Contractor shall provide notice to each Customer of its established Collection day(s), and shall provide at least one week's notice to Customers of any change in their established Collection day(s). Notwithstanding any provision herein to the contrary, should any established Collection date fall on a legal holiday, or on any other holiday which is observed by either a landfill or other lawful disposal site to which Solid Waste is taken for disposal, or a recycling facility to which Recyclable Material is taken, Contractor shall provide for Collection one (1) day later during the pick-up week, and the regular pick-up schedule shall be resumed the following week. A pick-up week shall be defined as Monday through Saturday. Contractor may not change its established Collection schedules without obtaining the prior written consent of the City Manager. Contractor does not typically provide Collection for Residential Premises on Mondays. If a homeowner's association desires Collection for the entire community it governs to occur on a Monday, than Contractor may include a surcharge for doing so in an amount that does not exceed the maximum rate set forth on Exhibit A. 8.1.6 Commingling of Routes Contractor shall not during its Collection process commingle Solid Waste Collected hereunder with Solid Waste Collected in any other City, or on behalf of any other entity operating or existing within City that is not subject to this Agreement, and is specifically prohibited from combining Collection routes related to services provided pursuant to this Agreement with Collection routes for other jurisdictions it may service. Notwithstanding the forgoing, Contractor may combine Collection routes dedicated exclusively to the Collection of Recyclable, Materials .Collected in Recycling Carts, Recycling Crates, or Recycling Bins, or Collection routes dedicated exclusively to the Collection of green waste Collected in Green Waste Carts, with Collection routes for other jurisdictions. 8.1.7 Replacement of Containers Contractor shall, whenever possible, place Carts or Customer provided Containers in the street gutter, adjacent to the curb upon completing Collection. Contractor shall replace all 384/015610-0089 787054.08 a05/11/07 -12- Bins in the location upon the property of each Customer utilizing Bins designated for storage of Bins, and shall secure gates, doors, and/or enclosures when applicable. 8.1.8 Contractor's Containers (A) Contractor's Containers shall meet the minimum standards set forth on the attached Exhibit B. (B) Contractor shall be responsible to maintain and replace, as necessary, all of its Containers. (C) All Contractor's Containers shall be maintained by Contractor in good repair, and any questiop as to the meaning of this standard shall be resolved by the City Manager. (D) All Carts shall be maintained by Contractor in a watertight condition, as shall all Bins which are used primarily for the disposal of Solid Waste containing liquids. (E) Carts utilized in connection with the Prior Agreements may continue to be utilized for services hereunder provided they are in good repair, meet the requirements set forth in Exhibit B, and are replaced by Contractor with new Carts at no charge if requested by either a Customer or City. (F) Contractor shall replace any damaged Carts at no charge to Customers, provided, however, Contractor shall be entitled to charge Customers for the replacement of any Cart that has been damaged by a Customer, ordinary wear and tear excepted, so long as such charges do not exceed those set forth in Exhibit A. (G) Contractor shall replace any lost or stolen Carts within three business days, at no cost to Customers. Contractor shall only be obligated to replace a lost or stolen Cart for a Customer at no charge two times during the Term hereof. For each replacement of a lost or stolen Cart thereafter, Contractor shall be entitled to charge Customers an amount that does not exceed that set forth in Exhibit A. (11)i Contractor shall at Customer's request annually refurbish, replace, and steam clean as necessary all Bins and Rolloff Boxes at no charge to Customers. Additional steam cleaning shall be provided to any Customers who request it at a charge not to exceed twenty five dollars ($25.00) per Bin, or alternatively Contractor shall provide a replacement Bin/Rolloff Box to Customers at no charge. (I) Contractor shall remove any graffiti that appears on its Containers within twenty- four (24) hpurs after becoming aware of it. (J) All Bins and Rolloff Boxes shall be kept freshly painted in a uniform fashion and shall be identified with Contractor's name and phone number in letters not less than three inches high on its exterior so as to be visible when the Container is placed for use. Notwithstanding the forgoing, the parties acknowledge that as of the Effective Date Contractor continues to use Bins and Rolloff Boxes which were utilized by Waste Management in connection with the Prior Agreements. Some of these Containers are labeled with the prior contractor's name and are not 384/015610-0089 787004'08 405/11),07 -13- painted the same color as Contractor's other Containers. Contractor may continue to utilize these Containers, provided that by July 1, 2009 all Bins and Rolloff Boxes shall have a uniform color, and the name of any solid waste enterprise other than Contractor shall not appear on any Bin or Rolloff Box utilized hereunder. locks. (K) At a Customer's request, Contractor shall provide Bins with locking lids and 8.1.9 Missed Pick-ups In case of a missed pick-up called in by a Customer, Contractor shall Collect Solid Waste and Recyclable Material from such Customer no later than the next day of the pick- up week following the date of the call. Records of the addresses of all missed pick-ups shall be maintained by Contractor, and shall be reported to City upon request. If Contractor demonstrates to the satisfaction of the City Manager a pattern of ongoing late "set -outs" by a given Customer, missed pick-ups resulting from late set -outs by that Customer shall not be counted as missed pick-ups in evaluating Contractor's performance hereunder. 8.1.10 Record of Non -collection When Contractor refuses to Collect any Solid Waste deposited for Collection, Contractor shall leave a tag at least 2" by 6" in size, indicating the reason for Contractor's refusal to do so. This information may be either handwritten or left by means of a check system (i.e., checking off boxes on a preprinted form). The tag shall provide Contractor's business name and its local telephone number and shall be securely fastened to the Container or the article refused. Contractor shall maintain a record of all such taggings at its place of business. Such record shall contain the date of such notice, street address, reason for non -collection, and a summary of any communications between Contractor and the Customer involved. Such notice shall be retained so that it may be conveniently inspected by representatives of City upon request. In addition to tagging un -Collected Containers, Contractor shall send a written notice to any Customer at a Commercial Premises whose Container is not Collected explaining the reason for the non - Collection, and records of such correspondence shall be maintained in the same manner as noted above with, regard to tags. 8.2 Residential Solid Waste Handling Service 8.2.1 Single Family Dwellings — Automated Collection Except for those Customers who receive Manual Service or who receive service utilizing Bins as provided herein, Contractor shall provide each Customer at a Single Family Dwelling with one (1) ninety-six (96) gallon Cart designated for the Collection of mixed Solid Waste (a Refuse Cart), and shall Collect all Solid Waste placed therein for Collection not less than once per week using an automated Collection system at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor shall also, at no additional charge, Collect Solid Waste which a Customer may occasionally place adjacent to their Refuse Cart(s) in bags or boxes for Collection. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one or more additional Refuse Carts at no charge; provided, however, Contractor's monthly rate for Solid Waste Handling Services to such Customers may 384015610-0089 787054 08 a05/11.107 -14- be increased on a per Refuse Cart basis in an amount that that does not exceed the maximum rates set forth in the attached Exhibit A. Any Customer requesting a smaller Refuse Cart shall be provided with their choice of either a sixty-four (64) gallon or thirty-five (35) gallon Refuse Cart by Contractor instead of the standard ninety-six (96) gallon Cart noted above. Wherever feasible, Customers shall be directed to place Carts for Collection in the street gutter, against the curb. If a Customer and Contractor cannot agree upon a Collection location, or if City determines the selected location to cause safety or other concerns, City may make the final determination of the Collection location. 8.2.2 Single Family Dwellings — Manual Collection If a homeowner's association governing a gated community advises Contractor that it wishes its entire community to receive Solid Waste Handling Services utilizing containers provided by its homeowners collected by manual efforts, rather than the use of Cart collected with an automated process, and upon approval of such request by City, Contractor shall provide Solid Waste Handling Services to all Customers in such community by manual means (i.e., manually lifting Containers provided by Customers and dumping their contents into a Collection vehicle) ("Manual Service"). Communities already receiving Manual Service pursuant to the Prior Agreements shall continue to receive such service unless they request a change. Customers receiving Manual Service shall be entitled to place out three (3) standard size trash cans of up to 40 gallons, or up to six (6) standard sized plastic garbage bags each week for Collection, and Contractor shall Collect all Solid Waste placed therein for Collection not less than once per week at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor shall not be required to provide Refuse Carts to Customers receiving Manual Service, and such Customers shall provide their own Containers. Any dispute as to whether a Container (whether a trash can or bag) utilized by a Customer receiving Manual Service is "standard" shall be resolved by City. Wherever feasible, Customers shall be directed to place their Containers for Collection in the street gutter, against the curb. If a Customer and Contractor cannot agree upon a Collection location, or if City determines the selected location to cause safety or other concerns,. City may make the final determination of the Collection location. 8.2.3 Backyard Service Contractor shall provide "Backyard Service" to all Customers who request it. This service shall require Contractor to use its own forces to bring a Customer's Carts (or, in the case of Manual Service, the Customer's Containers and Recycling Crates) from the Customer's backyard, side yard, or such other location at which the Customer's Containers are regularly stored, to Contractor's Collection Vehicle; and, after disposal of the contents thereof, returning said Containers to the location where they are regularly stored. Backyard Service shall be limited to moving one Refuse Cart and one Recycling Cart provided by Contractor (or, in the case of Manual Service a maximum of two Customer provided Containers and Recycling Crates provided by Contractor) a distance of not to exceed 60 feet in each direction. Any Customer who has a DMV issued NI -Permanent disabled placard, and any elderly person who demonstrates to the reasonable satisfaction of Contractor an inability to transport his/her Collection 'Container to the curb, shall be entitled to receive Backyard Service at no additional charge. Any other Customer who requests Backyard Service may be charged an additional charge for such service that does not exceed that set forth in the attached Exhibit A. In addition, 384015610-0089 787054 08 a05/11/07 -15- Contractor tnay impose an additional charge not exceeding that set forth on Exhibit A for each Cart or Customer provided Container in excess of those noted above required to be moved as part of any Customer's Barkyard Service. Any dispute regarding a Customer's eligibility for Backyard Service at no charge shall be resolved by the City Manager. 8.2.4 Single Family Dwellings — Bin Collection Contractor may provide Customers at Single Family Dwellings who so request with Bins in place of Refuse Carts, subject to City approval, provided the use of Bins at the property in question complies with any and all applicable policies, rules and/or regulations of City (including any such regulations as may be adapted from time to time applicable to screening and storage.) In addition, if a homeowner's association governing a gated community advises Contractor that it wishes its entire community to receive Solid Waste Handling Services utilizing Bins rather than Carts, and upon approval of such request by City, Contractor shall provide Solid Waste Handling Services to all Customers in such community through the use of Bins. Contractor Shall not be required to provide Refuse Carts to Customers receiving service utilizing Bins as provided herein. 8.2.5 Recycling Program for Single Family Dwellings Using Carts Contractor shall provide each Customer at a Single Family Dwelling with one (1) ninety-six (96) gallon Cart designated for the Collection of Recyclables (a Recycling Cart) at no additional charge. Upon request from any Customer at a Single Family Dwelling, Contractor shall provide such Customer with one or more additional Recycling Carts at no additional charge. Any Customer requesting smaller Recycling Carts shall be provided with their choice of either sixty-four (64) gallon or thirty-five (35) gallon Recycling Carts by Contractor instead of the standard ninety-six (96) gallon Cart noted above. Contractor shall Collect Recyclable Material placed in Recycling Carts for Collection from each Customer at a Single Family Dwelling on the same day as such Customer's Refuse Cart is Collected. Customers shall be directed to place Recycling Carts in the same location for Collection as Refuse Carts. At a minimum the following materials shall be allowed to be deposited by Customers for Collection in Recycling Carts: aluminum cans; glass jars and bottles; bi-metal, and tin cans; empty aerosol containers; PET plastic; HDPE plastic; plastics types 3 — 7; plastic bags, shrink wrap, plastic toys and tools, and other plastic materials (if readily identifiable as being recyclable); juice boxes and milk cartons (aseptic packaging, Tetra Palo and waxed cardboard); coat hangers and metal foil; newspaper; mixed paper (e.g., ledger, computer, junk mail, magazines, paperback books cereal boxes, envelopes, paper shopping bags and non-metallic wrapping paper); corrugated cardboard; and telephone books. Customers at Single Family Dwellings receiving Collection in Bins shall receive either a Recycling Cart or a specially designated Bin for the Collection of at least the above noted materials. 8./6 Recycling Program for Single Family Dwellings Using Manual Service If a homeowners association governing a gated community has advised Contractor that it wishes to receive Manual Service as provided herein, it shall also have the option of deceiving recycling services as described herein at no additional charge. To receive recycling services, the homeowner's association governing the community at which Manual 384,015610-0089 787054 08 605/1 1/07 -16- Service is provided must make a request to Contractor that the service be provided to the community. Once such a request is received, Contractor shall distribute crates meeting such specifications as may be approved by City ("Recycling Crates") to all Customers in the communityin question. Communities already receiving Manual Service and Recycling Crate Collection Under the Prior Agreements shall continue to receive such service unless they request a change. Recycling Crates shall be designed and designated for the Collection of the same materials as set forth in Section 8.2.5. Customers shall be directed to place Recycling Crates in the same location for Collection as their Containers are placed for Collection, and Contractor shall Collect Recyclable Material placed in Recycling Crates for Collection on the same day as such Customers receive Manual Service. 8.2.7 Recycling Program for Single Family Dwellings Using Bin Service Contractor shall provide all Customers at Single Family Dwellings that utilize Bins for Collection of Solid Waste with one ninety-six (96) gallon Recycling Cart for Collection of Recyclable Material at no extra charge. Any Customer who so requests, shall be given a Recycling Bin instead of a Recycling Cart at no additional charge. 8.2.$ Green Waste Program for Single Family Dwellings Using Carts Contractor shall provide all Customers at Single Family Dwellings to whom it provides Refuse Carts, with a ninety-six (96) gallon Cart for Collection of commingled green waste (a "Green Waste Cart") at no additional charge. Contractor will make available a second Green Waste Cart at no additional charge to Customers who regularly recycle more than will fit into their existing Green Waste Cart(s). Any Customer requesting a smaller Green Waste Cart shall be provided with their choice of either a sixty-four (64) gallon or thirty-five (35) gallon Green Waste Cart by Contractor instead of the standard ninety-six (96) gallon Cart noted above. Contractor shall Collect green waste placed in Green Waste Carts for Collection from each Customer on the same day as such Customers' Refuse Cart is Collected. Customers shall be directed to place Green Waste Carts in the same location for Collection as Refuse Carts. Contractor shall provide City with the name, address, and contact person for all gated residential communities in City. Contractor shall fund a survey to be conducted by City in which each gated communities will be asked what, if any, level of green waste collection service is desired. Included specifically in the questions posed to each community will be questions as to whether green waste collection at individual homes with Carts, or at centralized locations with Bins/Rolloff Boxes is desired. Notwithstanding anything to the contrary above, Contractor's only obligation to provide green waste Collection for Customers within gated residential communities will be to implement a green waste collection program at any gated community that indicates it desires one, using a collection methodology directed by City as determined based upon the above noted survey. 8.2.9 Green Waste Program for Single Family Dwellings Using Bin Service Contractor shall provide all Customers at Single Family Dwellings that utilize Bins for Collection of Solid Waste, and who ask for green waste recycling services with one ninety-six (96) gallon Green Waste Cart for Collection of green waste at no extra charge. Any 384015610-0089 787054 08 805/11,07 -17- Customer who so requests, shall be given a smaller Green Waste Cart or additional Green Waste Carts at no additional charge. 8.2.10 Multi -Family Dwelling Green Waste Program Contractor shall provide all Customers at Multi -Family Dwellings who ask for green waste recycling services with one ninety-six (96) gallon Green Waste Cart for Collection of green waste at no extra charge. Any Customer who so requests, shall be given a smaller Green Waste Cart or additional Green Waste Carts at no additional charge. 8.2.11 Use of Bins for Multi -Family Dwelling Customers Contractor shall supply Multi -Family Dwellings with Bins meeting the minimum standards set forth in Exhibit B for Solid Waste Handling Services ("Refuse Bins"). Contractor shall provide not less than one (1) Refuse Bin for every ten (10) Dwelling Units located at each Multi -Family Dwelling, to be Collected not less than one time per week. Alternatively, if space constraints make this impractical, the City Manager may approve the use of a lesser number of Refuse Bins if they are Collected with a sufficient frequency to ensure public nuisance conditions do not exist. The size of Refuse Bins utilized, and the frequency of their Collection, shall be mutually agreed upon by Contractor and its Customers, except that Collection shall occur not less than one time per week and City shall have the right to impose minimum requirements for Bin sizes and more frequent Collection should it determine such action is needed to protect public health, safety and welfare. 8.2.12 Multi -Family Dwelling Recycling Program Contractor shall provide specially designated Bins for recycling (Recycling Bins) at all Multi -Family Dwellings, at no additional charge. Contractor shall provide not less than one Recycling Bin for every twenty (20) Dwelling Units located at each Multi -Family Dwelling. Contractor shall Collect Recyclable Material placed in Recycling Bins for Collection from each Customer at least once per week. If warranted by specific circumstances at any given Multi - Family Dwelling, Recycling Carts may be utilized instead of Recycling Bins, and the minimum number of Recycling Bins/Carts may be adjusted. At a minimum, all residents of a Multi -Family Dwelling shall have access to a refuse recycling program, and any permitted adjustments to the required program (including the use of Recycling Carts and adjustments to the minimum number of Recycling Bins/Carts) shall be subject to approval by the City Manager. At a minimum the following materials shall be allowed to be deposited by Customers for Collection in Recycling Bins/Carts: aluminum cans; glass jars and bottles; bi-metal, and tin cans; empty aerosol containers; PET plastic; HDPE plastic; plastics types 3 — 7; plastic bags, shrink wrap, plastic toys and tools, and other plastic materials (if readily identifiable as being recyclable); juice boxes and mills cartons (aseptic packaging, Tetra Pak© and waxed cardboard); coat hangers and metal foil; newspaper; mixed paper (e.g., ledger, computer, junk mail, magazines, paperback books cereal boxes, envelopes, paper shopping bags and non-metallic wrapping paper); corrugated cardboard; and telephone books. 3840[5610-0089 787054 08 405/1 Ii07 -18- 8.2.13 Residential Bulky Item Service Contractor shall provide unlimited Bulky Item Collection services to residents at all Single Family Dwellings and Multi -Family Dwellings in City on an on-call basis. Collection of up to four (4) Bulky Items shall occur on a Customer's regular Collection day at no charge if the Customer provides 48 hours advance notice of the desire for this service. Contractor may charge an amount not exceeding that set forth in Exhibit A for each Bulky Item in excess of four (4) Collected on a Customer's regular Collection day, or for any Bulky Item Collection requested for a day other than on a Customer's regular Collection Day. Contractor shall produce, keep current, and provide public information specifically outlining its Bulky Item Collection service, which shall specifically include the annual publication and distribution during the month of October of a brochure describing this service to residents of all Single Family and Multi -Family Dwellings ip City. 8.2.14 Bulky Item Diversion Bulky Items Collected pursuant to this Agreement may not be landfilled until the following hierarchy of diversion efforts has been followed by Contractor: a. I Reuse as is (if energy efficient) b. Disassemble for reuse or Recycling c. Recycle, Transformation, other means of diversion d. Disposal This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky Items. The disposition of Bulky Items shall be tracked by Contractor and this information shall be included in Contractor's quarterly reports to City. 8.2.15 Proper Handling of Bulky Items Contractor shall properly handle all materials required to be collected as Bulky Items, including specifically items that require special handling pursuant to the Environmental Laws, such as materials that constitute "e -waste." 8.2.16 Residential Sharps Collection Program Contractor shall design a program for the collection of used needles (the "Sharps Collection (Program") that the City Manager finds satisfactory and approves. Contractor shall be responsible to ensure the Sharps Collection Program complies with all applicable laws and regulations. It is anticipated that the Sharps Collection Program at a minimum will allow for Customer's to mail used needles to a specific collection location, in specialized packaging provided by Contractor, and/or deliver used needles to a location in or near City designated by Contractor. Once approved, Contractor shall implement the Sharps Collection Program at no cost to City residents. 384015610-00891 787054.08 8059 1'07 -19- 8.2.11 Residential Non -Controlled Medication Collection Program Following the second anniversary of the Effective Date hereof, Contractor shall design and present a program to City for the collection of unused non -controlled medicines (the "Non -Controlled Medication Collection Program") that the City Manager finds satisfactory and approves. Contractor shall be responsible to ensure the Non -Controlled Medication Collection Program complies with all applicable laws and regulations. It is anticipated that the Non - Controlled Medication Collection Program at a minimum will allow for Customer's to mail unused medication (excepting controlled substances) to a specific Collection location, in specialized packaging provided by Contractor, and/or deliver unused medication (excepting controlled sdbstances) to a location in or near City designated by Contractor. If City desires to implement the proposed Non -Controlled Medication Collection Program Contractor shall meet and confer in good faith with City to attempt to arrive at agreeable rates. As part of any meet and confer process hereunder, Contractor shall provide all financial information related to the proposed program which City reasonably deems necessary to evaluate the actual program costs and profits proposed by Contractor. 8.2.18 Residential Used Oil and Oil Filter Collection Program Contractor shall Collect, at no additional charge, used oil and used oil filters placed for Collection by Customers at Single Family Dwellings on their regular Collection Day. Contractor may impose requirements for this program to be followed by Customers, including requirements related to the proper containerization of oil placed for Collection, provided any such requirements shall be subject to City approval. Customers may also deliver used oil and oil filters to Contractor's yard in Palm Desert at no charge. Contractor shall seek grants to fund containers to Collect these materials, and to fund an ABOP Center at the City's maintenance yard. 8.3 Commercial Solid Waste Handling Services 8.3.1, Commercial Bins and Rolloff Boxes Contractor shall provide all Customers at Commercial Premises ("Commercial Customers") with at least one Bin and/or Rolloff Box for Collection of mixed Solid Waste, and shall Collect all Solid Waste placed therein for Collection not less than once per week, at rates that do not exceed the maximum rates set forth in Exhibit A. Contractor shall provide additional Containers to Customers and shall provide additional Collections upon request, or as may be required by City's Municipal Code, health and safety requirements, or by the City Manager, and may charge rates for such services which do not exceed the maximum rates set forth in Exhibit A. Bins and Rolloff Boxes shall be Collected by Contractor from the location upon each Customer's property designated for their storage, and replaced to that location with gates and/or doors secured, as applicable, after Collection is completed, unless different arrangements are agreed upon by the Customer and Contractor. 8.3.2 Collection in 384/015610-0089 787054.09 805/15/07 Commercial Carts As an alternative to the requirements of Section 8.3.1, Contractor shall offer Refuse Carts to Commercial Customers that do not have space for, or do not -20- generate enough waste to require the use of Bins for Collection. Rates for Customers receiving such service shall not exceed the maximum rates set forth on Exhibit A. If Contractor and Customer have a disagreement as to whether a Refuse Cart is appropriate, or if City determines the Collection in a Refuse Cart causes health and safety or other concerns, City shall make the final) determination as to whether Collection in a Refuse Cart may occur. 8.3.3 Commercial Recycling Program Commercial Customers that receive 96 gallon Refuse Carts shall also be entitled to receive a ninety-six (96) gallon Recycling Cart at no additional charge, within which at least those Recyclable Materials set forth in Section 8.2.5 may be placed for Collection. Customers at Commercial) Premises utilizing Refuse Bins or Rolloffs, and who choose to participate in Contractor's Recycling programs, shall be entitled to receive, at no charge, their choice of either ninety-six (96) gallon Recycling Carts or Recycling Bins (with a capacity of two (2), three (3) or four (4) yards), within which at least those Recyclable Materials set forth in Section 8.2.5 may be placed for Collection. Contractor shall contact all Customers at Commercial Premises on an annual basis and advise them of the availability of the above recycling programs, and any other programs it may offer. At a minimum this contact shall include a site visit for any Customer at a Commercial Premises that is not engaged in a recycling program. Contractor shall provide quarterly reports to City documenting its efforts, including the name address and phone number of each Customer contacted, as well as the dates of contact and the results of the contact (i.e., if the contact resulted in the implementation of a recycling program.) Following the second anniversary of the Effective Date hereof, Contractor may request a discretionary adjustment to the maximum rates set forth on Exhibit A to offset Contractor's costs in providing the Recycling Program at Commercial Premises required herein. Any such request shall be subject to the provisions hereof related to discretionary adjustments to the maximum rates Contractor may charge, including specifically, without limitation, the provisions of Sections 24.6 and 11.2 hereof; provided, however, to the degree the provisions of the final sentence of Section 24.6 would otherwise prohibit Contractor's submission of a discretionary rate increase for consideration by the City for the purpose contemplated by this Section such provisions shall not apply. 8.3,4 Restaurant Food Waste Diversion Program If requested by City, Contractor shall implement a food waste diversion program at restaurants in City. If requested by City Contractor shall propose a detailed food waste diversion program, and propose reasonable rates for the implementation of such a program. If City deems the rates proposed to be excessive, Contractor shall meet and confer in good faith with City to attempt to arrive at agreeable rates. As part of any meet and confer process hereunder, Contractor shall provide all financial information related to the proposed program which City reasonably deems necessary to evaluate the actual program costs and profits proposed by Contractor. If a food waste diversion program is requested by City, Contractor shall design a program that shall meet at least the following minimum criteria: 1. Contractor shall provide a food waste Collection Container approved by City to any Customer that requests to participate in the program for outdoor storage of food waste pending Collection by Contractor. Contractor shall also provide rolling Containers to be used 384/015610-0089 787064 08 805/1007 -21- inside Customer's restaurants for transfer of food waste from inside the Premises to the outdoor Collection Container. Contractor shall label all Containers used in the food waste diversion program to identify the materials that may be placed in the Containers. 2. Contractor shall Collect food waste Containers a minimum of twice per week from Customers participating in the food waste diversion program. 3. Contractor shall conduct training for the staff of all Customers participating in the food waste diversion program, on the Customer's site, and at times coordinated with the restaurant operators. Contractor shall notify all restaurants in the City of the availability of the food waste diversion program a minimum of once per year during the Term hereof in connection with the contact required pursuant to Section 8.3.3. 4. As part of Contractor's monthly reports to the City, Contractor shall provide the food waste tonnage diverted pursuant to the food waste diversion program, and the number of Customers participating each month. As part of the Contractor's annual report to the City, Contractor shall provide a list of Customers participating in the food waste diversion program, including the name, service address, and level of service provided. 8.3.5 Commercial Bulky Item Service Contractor shall provide unlimited Bulky Item Collection services to Commercial Customers on an on-call basis. Contractor may charge rates for such services which shall not exceed the maximum rates set forth in the attached Exhibit A. Bulky Item Collection service calls shall be responded to within a reasonable time but not longer than seven (7) days from the date of the Customer's call for service. Contractor shall produce, keep current, and provide public information specifically outlining the Bulky Item pick-up service. Bulky Items Collected pursuant to this Section are subject to the diversion and handling requirements set forth in Sections 8.2.14 and 8.2.15. 8.4 Tertrporary Services Contractor shall provide Temporary Services on an on call basis to any Customer requesting such service pursuant to the following conditions: (A) Bins and Rolloff Boxes utilized in connection with Temporary Services shall meet the minimum standards set forth herein. (B) No charges excepting rates not exceeding the maximum rates set forth in the attached Exhibit A related to Bins or Rolloff Boxes utilized in connection with Temporary Services shall be imposed by Contractor, unless approved in accordance with Section 8.7 (Special Services). (C) Bins and Rolloff Boxes used in connection with Temporary Services shall not be placed in any street; provided, however, this prohibition may be waived in extraordinary circumstances by City's Director of Public Works. Any such waiver shall be in writing signed by the City's Director of Public Works and shall be subject to such conditions as he may impose. Bins and Rolloff Boxes used in connection with Temporary Services may be placed in the public 384015610-0089 787054.08 a05/11).07 -22- rights-of-way behind the boundary line of any street if an Encroachment Permit is obtained in advance from the City, subject to such terms and conditions as may be imposed in the Encroachment Permit. In no event shall any Bins or Rolloff Boxes remain in any public rights- of-way for a period exceeding two consecutive weeks, unless a longer period is specifically approved in writing by City. (D) The City is currently considering whether to adopt an ordinance regulating the recycling arid disposal of construction and demolition waste. This ordinance, if and when adopted, may require among other things: that contractors in City provide plans for recycling waste generated at construction sites; evidence that construction waste is recycled; recycling requirements for construction waste of 50%, 75% or higher; reporting requirements for tracking the diversion of construction waste from landfills; fee requirements; and such other requirements as the City determines are appropriate. In addition to the general requirement set forth herein that Contractor comply with any ordinances and regulations that City may from time to time adopt, Contractor specifically agrees to comply with all provisions of any ordinance regulating construction and demolition waste which City may adopt, and to provide services for contractors in City as may be contemplated by any such ordinance at no charge (such as assistance in preparing plans for the collection, recycling and disposal of construction and demolition waste.) Contractor has agreed to, and shall be responsible to provide all administrative support (or such part of it aS requested by City) necessary to implement the City's construction and demolition debris ordinance, if and when adopted. Until such time as (and it) an ordinance requiring specific diversion levels for construction and demolition waste is adopted, Contractor shall make all reasonable efforts to recycle construction and demolition waste, especially to the degree such loads contain clean inert materials. In this regard, at a minimum it shall make available to contractors separate containers within which to Collect different types of marketable materials, such as dirt, steel, and wood. (E) Notwithstanding any provision to the contrary herein, Contractor's exclusive right to provide Temporary Services related to the Collection of green waste from golf courses during "scalping season" from September to November each year, shall be limited in that if Contractor is unable to provide service within 24 hours of a request for such service by any Customer at a golf courser such Customer may contract with any solid waste enterprise to provide this service. Any dispute as to whether a Customer may use another solid waste enterprise pursuant to this Section shall be resolved by the City Manager whose decision shall be final and binding upon Contractor. 8.5 Recycling Obligations and Public Education Program 8.5.1 Minimum Requirements for Delivery of Recyclable Materials and Green Waste All and Recyclable Materials Collected by Contractor from Recycling Carts or Recycling Bins pursuant to this Agreement shall be delivered to a properly permitted facility for recycling and reuse purposes. All green waste Collected by Contractor pursuant to this Agreement from Green Waste Carts or in Bins or Rolloff Boxes designated for green waste Collection shall be delivered to a properly permitted facility for recycling, mulching or composting. Contractor has requested that it be allowed to use green waste as landfill alternate daily cover (ADC). City agrees that Contractor may do so, provided however, in light of the fact 384'015610-0089 78705408 a05'I1'67 -23- legislation has been proposed at the State which would eliminate the ability to consider ADC for diversion credit, if Contractor uses green waste as ADC it shall bear all risk that it may not be able to obtain diversion credit by doing so, and shall not be entitled to seek an extraordinary rate increase purstiant to Section 24.6 hereof in connection with increased costs if use of green waste as ADC is nb longer an option for any reason during the Term. Contractor shall identify all facilities utilized for the purpose of complying with this Section, and such facilities shall be subject to approval by City. 8.5.2 Extent of Applicable Franchise Rights Nothing in this Agreement shall be construed as giving Contractor the right to Collect Recyclable Material which has not been discarded and placed for Collection by Contractor in the location designated for that purpose. 8.5.3 AB 939 Obligations, Guarantee, and Indemnification 8.5.3.1 Warranties and Representations Contractor warrants and represents that it is aware of and familiar with City's Source Reduction and Recycling Element (the "SRRE"), that it is familiar with City's waste stream, and that it has the ability to and will provide sufficient programs and services to ensure City will meet or exceed the diversion requirements (including, without limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set forth in AB 939, and all amendments thereto, and that it shall do so without imposing any costs or fees other than those set forth on the attached Exhibit A (including if new programs are implemented which are not called out herein). 8.5.3.2 Waste Reduction and Program Implementation Contractor shall implement the programs identified in the Source Reduction and Recycling Element (SRRE) and Household Hazardous Wastes Element (HHWE) of the City's General Plan immediately upon the Effective Date hereof, and will implement any programs required by any amendments or modifications thereto. Contractor shall provide City with monthly, quarterly and annual written reports in a form adequate to meet City's AB 939 related filing and reporting requirements to the California Integrated Waste Management Board and to the County of Riverside throughout the Term of this Agreement wherein City's performance under the above programs shall be set forth in detail. Contractor shall be responsible to prepare, or assist City with the preparation of, all reports and other information as may be required by any agency, including specifically, the State of California, in order to comply with AB 939. Contractor shall reimburse City for any costs City incurs in reviewing and revising any such reports, and in appearing before the California Integrated Waste Management Board and/or the County of Riverside in relation thereto. 8.5.3.3 Guarantee and Indemnification Contractor warrants and guaranties that it will carry out its obligations under this Agreement such that: (i) both it and City will at all times be in compliance with the requirements of AB 939, and (ii) City will meet or exceed the diversion requirements (including, without 384/015610-0089 787054 09 a05/15/07 -24- limitation, amounts of Solid Waste to be diverted, time frames for diversion, and any other requirements) set forth in AB 939, and all amendments thereto. In this regard Contractor agrees that it will, in addition to any other requirement contained herein, at its sole cost and expense: (A) to the extent legally permitted, defend, with counsel approved by City, indemnify, and hold harmless City and City's officials, employees, and agents from and against all fines and/or penalties and other liabilities which may be imposed by the California Integrated Waste Management Board ("Board") or any other regulatory agency if: (1) Contractor fails or refuses to timely provide information relating to its operations which is required pursuant to this Agreement or AB 939 and such failure or refusal prevents or delays City from submitting reports required by AB 939 in a timely manner; or (2) the source reduction and recycling goals, diversion goals, program implementation requirements, or any other requirements of AB 939 are not met with respect to the waste stream Collected under this Agreement; (B) assist City in responding to inquires from the Board; (C) assist City in preparing for, and participating in, the Board's biannual review of City's SRRE pursuant to Public Resources Code Section 41825; (D) assist City in applying for any extension, including under Public Resources Code Section 41820, if so directed by City; (E) assist City in any hearing conducted by the Board relating to City's compliance with AB 939; (F) assist City with the development of and implement a public awareness and education program that is consistent with the City's SRRE and Household Hazardous Waste Element; as well as any related requirements of AB 939; (G) provide City with recycling, source reduction, and other AB 939 related technical assistance; (H) defend, with counsel acceptable to City, City and City's officials, employees, and agents against the imposition of fines and/or penalties, or any other liabilities, issued by the Board pursuant to AB 939; (I) be responsible for and pay, any fees, penalties or other costs imposed against the City by the Board, and indemnify and hold harmless City from and against any fines, penalties, or other liabilities, levied against it for violation of AB 939's diversion requirements, or violation of any other provision of AB 939, arising from or in any way related to Contractor's performance of il:s obligations under this Agreement. 8.5.4 Waste Generation/Characterization Studies Contractor acknowledges that City must perform Solid Waste generation and Disposal characterization studies periodically to comply with the requirements of AB 939. Contractor agrees to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed and directed by City, to determine weights and volumes 384/015610-0089 787054 08 x05/11 /b7 -25- of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/processed to satisfy the requirements of AB 939. 8.5.5 Implementation of Additional Diversion Services In the event City does not meet the diversion requirements imposed by State Law, including those imposed by AB 939, with respect to all waste generated in City, City may direct Contractor to perform additional services (including the implementation of new diversion programs) or modify the manner in which it performs existing services, and Contractor agrees to do so at no additional charge. Pilot programs and innovative services which may entail new Collection Methods, and use of new or alternative waste processing and disposal technologies are included antong the kinds of changes which City may direct. 8.6 Additional Services As part of the consideration for entering this Agreement, Contractor shall provide the following additional services at no charge, and shall not adjust its rates to Customers to offset costs incurred in providing any of the following services: 8.6.1 Biennial Document Shredding Events Not less than two times per year, on dates and at locations in City agreed upon by Contractor and City, Contractor shall hold a document shredding event for Customers in City. This event shall be structured to allow any City resident or the owner of any business in the City may bring up to two "banker boxes" of documents to the designated location for shredding. Contractor shall deliver the shredded materials to an appropriate recycling facility, and shall not deliver such materials to a landfill for disposal. Contractor may require reasonable evidence that persons delivering documents for shredding in connection with this event are City residents or the owners of businesses in the City. 8.6.2 City Sponsored Events Contractor shall provide Solid Waste Handling Services for events sponsored by the City. These events shall include, without limitation, those set forth on the attached Exhibit C. In fulfilling the obligations created by this Section, Contractor shall provide Containers to Collect and dispose of all Solid Waste including cardboard waste boxes with liners, Bins or Rolloff Boxes as applicable, as well as Containers to Collect source -separated Recyclable Materials. Contractor shall also provide up to six portable toilets per calendar year for events sponsored by the City, or for use in connection with other activities as determined by City. 8.6.3 Recycling Assistance for Special Events Contractor shall assist the coordinators of special events in City in the implementation of recycling programs. Contactor shall be responsible to prepare and submit to City a "waste reduction and recycling plan" prior to such events, and within 30 days following each such event shall submit a "waste characterization report" listing the amount of each material collected for disposal and recycling at the event. 384/015610-0089 787054 08 605/1 1417 -26- • 8.6.4 Bin and Bin Enclosure Cleaning Contractor shall clean out any overflowing Bins or Bin enclosures within the Franchise Area within twenty-four (24) hours of notification by City. Contractor may bill Customers for any such services when they are required by City at rates subject to approval by City. Contractor shall work with the City Manager in identifying continual problems in Customer Bins or Bin enclosures. 8.6.5 Public Service Calls from City Departments Contractor shall respond to calls from City's Maintenance and Code Enforcement Divisions and from its Police Department, to provide Containers and dispose of Bulky Items and other Solid Waste as a result of illegal or unauthorized dumping, or other Code enforcement matters, occurring within the Franchise Area. Contractor agrees that if requested to provide such services in connection with abatement activities for which reimbursement is sought from the property owner by City through abatement liens or otherwise, Contractor will provide billing information sufficient for City to include it in its liens, and Contractor will be paid at such time as the abatement lien is paid, or reimbursement is otherwise obtained by City from the property owner. 8.6.6 Holiday Trees Contractor shall, free of charge, pick up all Holiday Trees placed out for Collection by Customers during the first two (2) weeks following Christmas Day. Contractor shall accept all Holiday Trees delivered to its yard in Palm Desert following the above two (2) week perioyl, at no extra charge. 8.6.7 Handling of Electronic Waste Contractor shall Collect electronic waste, or "e -waste," placed for Collection by any Customer, but shall handle and dispose of such materials in accordance with all applicable laws and regulations. 8.6.8 Acceptance of Recyclable Materials and Household Hazardous Waste Contractor shall accept, free of charge, batteries, florescent or mercury light tubes, and materials commonly known as e -waste that are dropped off by Customers at Contractor's yard in Palm Desert. Contractor shall seek grants, which if obtained, will enable it to similarly accept any items which are Household Hazardous Waste at no charge to Customers. Contractor shall use reasonable efforts to ensure that materials so delivered receive the highest possible rate of recycling. Contractor shall properly store, handle and dispose of all e -waste and Household Hazardous Waste once delivered to it, and in doing so shall comply with all laws and regulations, including specifically the Environmental Laws. 8.7 Special Services Contractor may provide special pickup procedures or services in addition to the services described 'herein for Customers who request or require such services at reasonable rates 384.015610-0089 737054 09 405114107 -27- established by Contractor, which rates are subject to approval by the City Manager. Contractor shall notify' the City Manager of any such services prior to such time as they are provided in order to allow the City an opportunity to conduct necessary inspections, review the proposed rate, and impose appropriate regulations. SECTION 9. MIINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE HANDLING SERVICE COLLECTION VEHICLES 9.1 General Contractor shall provide vehicles for the Collection of Solid Waste ("Collection Vehicles") that are sufficient in number and capacity to efficiently perform the work required by this Agreement in strict accordance with its terms. Contractor is expressly obligated to provide such Collection Vehicles and routes as are required to meet the service standards set forth herein. Contractor shall have available on Collection day's sufficient back-up vehicles for each type of Collection Vehicle used to respond to complaints and emergencies. 9.2 Air ,Quality/Fuel Requirements Contractor's Collection Vehicles shall comply with all rules and regulations of the Southern California Air Quality Management District, the Air Resource Board, and any other regulatory body that may be in effect during the term of this Agreement, as well as other Federal, State and local laws and regulations that may be enacted during the term of this Agreement. In addition to such requirements as may be imposed by the of the Southern California Air Quality Management District, the Air Resource Board, or any other agency with similar jurisdiction, as of the Effective Date all Collection Vehicles except so called "Rolloff Trucks" shall be powered by engines' that are either "alternative fuel powered" in accordance with the standards of the South Coat Air Quality Management District and acceptable to City, or, in the absence of such standards having been adopted by SCAQMD, fueled exclusively by either liquefied natural gas or compressed natural gas. So long as no greater requirement is imposed by law (including by standards imposed by SCAQMD), Contractor will not be deemed to have violated the minimum requirement imposed by City for use of liquefied or compressed natural gas Collection Vehicles, if a "spare" Collection Vehicle is used that does not meet this minimum requirement; provided that no such spare shall be used as a replacement Collection Vehicle for more than 14 consecutive business days, and spare Collection Vehicles that do not meet the City's minimum requirement shall not be used on more than a total of 60 days in any calendar year. 9.3 Specific Requirements Each Collection Vehicle utilized by Contractor in the performance of this Agreement shall meet the following minimum standards: (A) Each Collection Vehicle shall be registered with the California Department of Motor Vehicles. (B) Each Collection Vehicle shall be inspected, at least once every two years, either by the California Highway Patrol or another appropriate local law enforcement agency have 384/015610-0089 787054 O8 a05/1107 -28- jurisdiction to provide commercial vehicle inspections. A record of each vehicle's annual inspection shall be kept by Contractor and the results of said inspections shall be made available to the City Manager upon request. (C) Each Collection Vehicle shall be equipped with devices capable of covering every open section of the vehicle in which Solid Waste may be placed and, while operating upon the public rights-of-way, shall be covered so as to prevent any Solid Waste from falling or being blown or otherwise dislodged from the vehicle. (D) Each Collection Vehicle shall be continuously maintained in a watertight and leak -proof condition per industry standards. Contractor shall be responsible to promptly clean any spillage or Solid Waste that leaks or otherwise escapes the vehicle. (E) Each Collection Vehicle shall be painted periodically, and not less than once every two years, which shall include all necessary body work, and shall be regularly cleaned, so that such vehicles do not become unsightly, as determined by the City Manager. By the earlier of the first regularly scheduled date for painting each vehicle used in City following the Effective Date, or July 1, 2009, each vehicle shall be repainted with Contractor's colors and identifying information as required herein. Until such time, vehicles may remain painted as they existed during the Original Agreement. (F) Contractor's name, local or toll free telephone number, and a vehicle number shall be visibly printed or painted in letters not less than five (5) inches in height on both sides of each Collection Vehicle. Each Collection Vehicle shall display the words "Serving the City of La Quinta" in letters no less than two (2) inches in height. (G) Each Collection Vehicle shall be maintained in a clean and sanitary condition both inside and out and shall be washed at least once every seven (7) calendar days and steam cleaned on a regular basis. (H) Each Collection Vehicle shall carry a broom, shovel, and operable fire extinguisher, and shall be equipped with a communication device sufficient to allow the driver to communicate directly with Contractor's dispatcher and/or main office. (I) Each Collection Vehicle shall be kept in good repair and working order, and shall be equipped with appropriate safety equipment, including any new safety related technologies that become standard in the waste industry, and at a minimum shall have a video monitor based back-up system, or its equivalent. Contractor shall keep a sufficient supply of replacement parts and equipthent on hand to ensure adequate vehicle maintenance and timely and continuous performance of the services contemplated by this Agreement. (J) Contractor shall inspect each Collection Vehicle daily to ensure that all equipment is operating properly. Collection Vehicles which are not operating properly shall be removed from service until repaired and operating property. Contractor shall perform all scheduled maintenance functions upon Collection Vehicles in accordance with the manufacturer's specifications and schedule. Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown or any other cause so as to maintain all equipment in a safe and operable condition. Contractor shall 3841015610-0089 787054 08 405/11107 -29- keep accurate records of all Collection Vehicle maintenance and repair, recorded according to date and mileage, including signed verifications that repairs and maintenance has been properly performed, and shall make such records available to City upon request. (K) No Collection Vehicle shall be utilized if it is leaking break, hydraulic, or other fluids, and Contractor shall clean up any leaks or spills from their vehicles per the NPDES permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent fOr such clean up efforts. (L) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection Vehicles, used in providing service pursuant to this Agreement. This inventory shall list all equipment by manufacturer, ID number, date of acquisition, type and capacity. (M) Contractor shall utilize Collection Vehicles of a size, weight, nature, and type so as to not he unreasonably intrusive on the community with respect to noise, emissions, maneuverability, safety, and other factors and to avoid or minimize pavement damage and wear and tear of the street or adjacent properties, as approved by the City Manager. (N) Contractor shall not load Collection Vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local laws or regulations. Noise levels of equipment used for Collection shall no event exceed seventy-five (75) dba when measured at a distance of twenty-five (25) feet from the vehicle, five (5) feet from the ground. (0) Any Collection Vehicle that the City Manager deems inappropriate for use in City for any reason (including its appearance) shall be removed from service in City, until such time as (and if) the City Manger determines his concern regarding said Collection Vehicle are corrected. 9.4 Costs of Operation and Damages Contractor shall be responsible for any costs incurred in connection with ensuring all Collection Vehicles comply with all applicable laws and regulations, including without limitation any such laws and regulations that may now exist or hereinafter be adopted relating to noise, fuels, emission standards, or weight limits. 9.5 City Inspection City may cause or require any Collection Vehicle used in performance of this Agreement to be inspected and tested at any time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with the provisions of this Agreement. 9.6 Correction of Defects and Removal of Vehicles from Use within City Contractor agrees to immediately remove from service, and replace or repair, to the City's satisfaction, any Collection Vehicle which City determines to be of unsightly appearance, unsafe, unsanitary, leaking, out of compliance with any law or regulation or this Agreement, or 384015610-0089 787054 08 a05111;07 -30- otherwise in an unsatisfactory operating condition; and any such vehicle shall not be returned to service until the City Manager gives his written consent for its return. SECTION 10. CONTRACTOR'S SOLID WASTE HANDLING SERVICE PERSONNEL 10.1 Uniforms Each of Contractor's Collection employees shall wear a clean uniform bearing the Contractor's name 10.2 Identification of Employees Contractor shall provide identification badges, cards or similar devices, for all of its employees, and all authorized subcontractors, who may make personal contact with residents of the City. City may require Contractor to notify Customers yearly of the form of said identification. 10.3 Employee List Contractor shall provide a list of current employees and authorized subcontractors to City upon request. 10.4 Driver's License Each employee operating a vehicle as part of his duties shall, at all times, carry a valid operator's license for the type of vehicle he is operating. All employees who may have contact with Customers in the course of performing their duties shall be able to speak English. 10.5 Discontinued Use of Unsatisfactory Employees No employee shall continue to have any involvement whatsoever with regard to any work in anyway relating to or arising from this Agreement if City gives notice to Contractor that such employee is determined by City to be discourteous, disorderly, inefficient, or otherwise objectionable. 10.6 Training and Legal Compliance Contractor shall provide operating and safety training that meet minimum OSHA standards for all personnel, and shall comply with all laws and regulations applicable to its employees and personnel. 10.7 Customer Service 10.7.1 Local Office; Local Participation (A) Contractor shall maintain an office within a ten mile radius of the intersection of Washington and Highway 111. Said office shall be open at a minimum, from 8:00 a.m. to 5:00 384015610-0089 787054 08 805/11,107 -31- p.m. Monday through Friday, and 8:00 a.m. to 12:00 p.m. Saturday, holidays excepted. At least one responsible and qualified representative of Contractor, capable of communicating in English, shall be prSent and available during all times that an office is required to be open as noted above ("Office Hours"), for personal communication with the public, and a similarly qualified person shall be available for communication with the public by phone during any times other than Office Hours when Collection is occurring. (B) , Contractor shall, in addition to maintaining a local office, establish a local presence in the City. Contractor shall achieve such presence by joining, and maintaining a membership in, the La Quinta Chamber of Commerce, and by otherwise participating in the local community; such as by sponsoring local events. 10.7.2 Telephone Customer Service Requirements (A) Contractor shall maintain a toll free telephone number that rings at an office within the Coachella Valley at all times during Office Hours. Both English and Spanish speaking personnel will be available during Office Hours to assist Customers with telephonic inquiries. Contractor shall have the ability (through the use of outside resources or otherwise) to communicalte with Customers who only speak Spanish to ensure their inquiries, questions, complaints and other matters are dealt with in a reasonably timely fashion. All such personnel shall be polite and responsive, and shall be sufficiently knowledgeable, and have the authority to respond and/or advise Customers seeking assistance. Contractor's telephone system shall be adequate to handle the volume of calls typically experienced on the busiest days. Contractor shall also maintain a toll free telephone number for use at times other than Office Hours, which number shall be published in the La Quinta telephone directory at the Contractor's expense. Contractor shall have a representative, answering or message providing/receiving (voice -mail) service available at said non -Office Hours telephone number. Calls received at times other than during Office Hours shall be responded to on the next business day. Contractor shall provide City with a, 24-hour emergency number to a live person, not voice -mail. (B) Contractor shall make reasonable attempts to answer all phone calls within five (5) rings. If a call has been placed on hold for three (3) minutes, the caller will either be switched to a message center which shall be responsible to obtain the caller's address and phone number, or' a Customer service representative will obtain the Customer's address and a number at which the call can be returned. Contractor shall make at least three attempts within the next twenty-four (24) hour period to return the call, with the first such attempt not more than one (1) hour after the caller leaves the message. If Contractor is unsuccessful in contacting the Customer after following this procedure, it shall send a letter to the caller indicating its efforts. (C) Contractor shall record Customer complaints regarding Customer service personnel in accordance with Section 10.7.3. Customer service representatives receiving multiple complaints are to be transferred from Customer service duties relating to services performed under this Agreement. 3841015610-0089 787054.08 a05/1 007 -32- 10.7.3 Complaint Documentation (A) All service complaints shall be directed to Contractor. Contractor shall log all complaints received by telephone and said log shall include the date and time the complaint was received, the name, address and telephone number of the caller, a description of the complaint, the name of the employee recording the complaint and the action taken by Contractor to respond to and remedy the complaint. (B) All written Customer complaints and inquiries shall be date-stamped when received and shall be initially responded to within one (1) business day (Monday through Friday) of receipt. Contractor shall log action taken by Contractor to respond to and remedy the complaint. (C) Daily logs of complaints shall be retained for a minimum of twenty-four (24) months and shall be available to City at all times upon request. (D) All Customer service records and logs kept by Contractor shall be available to City upon request. City shall, at any time during regular Office Hours, have access to Contractor's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. Contractor shall provide to City on a monthly, quarterly, and annual basis, a complaint log, in a form approved by the City, that includes all, of the complaints logged pursuant to this Section, the complainant and the resolution. 10.7.4 Resolution of Customer Complaints (A) Disputes between Contractor and its Customers regarding the services provided in accordance with this Agreement may be resolved by the City. The City's decision shall be final and binding. Contractor shall pay City one hundred dollars ($100.00) for each City intervention in a dispute between Contractor and a Customer if the City reasonably deems intervention is required and the Customer's dispute is valid. (B) Should Contractor and Customers not be able to establish a mutually acceptable fee to be charged for special services as set forth in Section 8.7, the matter shall be dealt with pursuant to, this Section, be determined by the City, and the City's decision shall be final. (C) Intervention by the City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Contractor. Nothing in this Section is intended to affect the remedies of third parties against Contractor. 10.7.5 Government Liaison Contractor shall designate in writing a "Government Liaison" who shall be responsible for working with City and/or City's designated representative(s) to resolve Customer complaints, City shall have the right to approve the Contractor's choice for a liaison. 384/015610-0089 787054 08 a05/11)07 -33- 10.8 Education and Public Awareness 10.8.1 General (A) Contractor acknowledges and agrees that education and public awareness are critical, key and essential elements of any efforts to achieve the requirements of AB 939. Accordingly, Contractor agrees to exploit opportunities to expand public and Customer knowledge concerning needs and methods to reduce, reuse and recycle Solid Waste and to cooperate fully with City in this regard. (B) Contractor shall maintain its own program of providing information relevant to needs and Methods to reduce, reuse and recycle Solid Waste with its bills. All public education materials shall be approved in advance by City. Contractor shall keep a record of all promotional and public education materials utilized, and shall provide quarterly reports summarizing its public outrgach and education efforts. (C) At a minimum, Contractor shall conduct school assemblies and promote recycling through presentations and educational materials to the Chamber of Commerce, homeowners associations, construction contractors and other civic groups. Contractor shall also provide articles on recycling for local newsletters. 10.$.2 Implementation and On-going Education Requirements (A) In order to promote public education, in addition to any other materials it develops, Contractor shall create the following public education materials and programs at its expense, which will be distributed as indicated below. All of these materials and programs shall be produced and/or available in both English and Spanish languages. (1) Container Labels — Refuse and Recycling Carts shall carry stickers/labels or other identifying markings indicating the materials that should and should not be placed in each Container, and noting holiday Collection schedules, and Contractor's Customer service numbers. ' (2) Annual Notices — Not less than once each year during the Term of this Agreement, Contractor shall either prepare and mail notices to each Customer or take out an add in a local paper approved by the City Manager, promoting and explaining the following: programs (such as recycling, and Bulky Item Collections, and proper Hazardous Waste disposal); changes in commercial services; Collection schedules, including holiday schedules; and the procedures to begin and terminate services. These materials, and their precise content, shall be subject to City Manager's review and approval. (3) Corrective Action Notice — Contractor shall develop a corrective action noti fication form for use in instances where a Customer sets out inappropriate materials for Collection that explains the appropriate manner for disposal of such items. (4) Web Site Page — Contractor shall dedicate one page of its web site to City services, Which shall include at least the following information: a listing of contact names and numbers for Customer Service; information on Bulky Item Collection; Collection schedules, 384015610-0089 787054.08 a05)11 X07 -34- including holiday schedules; and the procedures to begin and terminate services. Contractor shall assist the City in establishing a link to this web page from the City's web site. (B) All brochures, mailings, and other educational materials are to be approved by the City in advance of distribution, and shall bear the City seal, unless otherwise approved by the City. SECTION 11. CONTRACTOR'S CONSIDERATION In addition to any other consideration set forth herein, as part of its consideration for entering this Agreement, and for the exclusive franchise, right and privilege to provide Solid Waste Handling Services within City as specified herein Contractor shall provide the following: 11.1 Reimbursement of Renegotiation Costs Contractor shall pay to City a one-time lump sum payment to reimburse the City for its actual staff expenses and out-of-pocket costs (including specifically consultant and legal fees) it incurred in connection with renegotiating with Contractor and entering this Agreement. Contractor previously provided a Sixty Thousand Dollar ($60,000) deposit to City to cover the estimate of City's consultant costs. This deposit will be applied to the forgoing reimbursement, and the balance (if any) shall be returned to Contractor. City shall provide an invoice to Contractor for the amount due pursuant to this Section, and any amount in excess of the above deposit shall be paid by Contractor within thirty (30) days of the Effective Date 11.2 Administrative Cost Reimbursement Contractor shall reimburse City for: (1) its annual consultant costs in an amount equal to Eighty Five Thousand Dollars ($85,000.00) [adjusted annually on January 1 by the change in the Consumer Price Index for All Urban Consumers, CUURA421SA0 not seasonally adjusted, all items index (CPI -U) — Los Angeles County, Riverside County, Orange County average]; (2) its actual consultant costs related to requests from Contractor pertaining to this Agreement [i.e., requests for discretionary rate adjustments, requests for transfers, or requests to consider new programs]; and (3) its legal fees and out of pocket costs incurred in the administration of this Agreement, including fees and costs associated with analyzing new legislation, considering requests from Contractor (including specifically, without limitation, requests for rate increases), and otherwise analyzing issues that arise in connection with this Agreement (the "Administrative Cost Reimbursement"). Invoices for the Administrative Cost Reimbursement will be provided to Contractor by City and shall be due to City within thirty (30) days. If any invoice for the Administrative Cost Reimbursement is not paid on or before the thirtieth (30th) day following the date upon which an invoice is mailed to Contractor, and in addition to any other remedy provided by law, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) per month, or portion thereof, of the amount owing until paid. 11.3 Franchise Fee Contractor shall pay to City, a franchise fee equal to eight percent (8%) of Contractor's annual Gross Receipts each year, or portion thereof, during the entire Term of this Agreement 384/015610-0089 787054 09 a05/15/07 -35- (the "Franchise Fee"). Except with respect to Gross Receipts collected by the County Tax Assessor, said Franchise Fee shall be paid to City monthly on or before the fifteenth (15th) day of each month. Should any such due date fall on a weekend or holiday in which the City's business offices are closed, payment shall be due on the first day thereafter in which the City's business offices are open. The amount of each payment shall be equal to eight percent (8%) of Contractor's Gross Receipts in the calendar month preceding the date payment was due (excluding amounts collected by the County Assessor). The Franchise Fee due hereunder shall apply to Gross Receipts of Contractor collected after the expiration of the Term hereof relating to Contractor's performance during the Term hereof. Franchise Fees shall be accompanied by a statement certified by an officer of Contractor attesting to the accuracy of the amounts paid, and setting forth the basis for their calculation in a manner acceptable to City. The Franchise Fee due in connection with amounts that are collected by the County Tax Assessor shall be deducted by City prior to City forwarding funds it receives from the Tax Assessor for payment of Solid Waste Handling Services to Contractor. 11.4 Services at City Facilities Contractor shall provide Solid Waste Handling Services at all Premises owned and/or operated by the City, at no cost to City and shall provide Containers for such service as City deems appropriate for each of its various Premises (i.e., Carts, Bins or Rolloffs). Such services shall be provided for all existing City facilities, as they may be expanded from time to time, and all facilities acquired/constructed during the Term hereof. The existing City facilities at which Solid Waste Handling Services are to be provided at no charge as of the Effective Date include, but are not limited to, those listed in the attached Exhibit D. Excluded from the foregoing is the Collection of waste resulting from the construction of new City facilities or demolition of existing City facilities; provided, however, Contractor shall provide Solid Waste Handling Services for such construction/demolition activities at City owned Premises at a rate that does not exceed the maximum rate for such services as set forth on Exhibit A, including a discount of fifteen percent (15%) off of the service component of such maximum rate. 11.5 AB 939 Fee Contractor shall pay City an amount as more fully set forth below on a monthly basis which is intended to defray City's costs associated with implementing and administering recycling and diversion programs required to ensure compliance with AB 939 (the "AB 939 Fee"). Except with respect to Gross Receipts collected by the County Tax Assessor, said AB 939 Fee shall be paid to City monthly on or before the fifteenth (15th) day of each month. Should any such due date fall on a weekend or holiday in which the City's business offices are closed, payment shall be due on the first day thereafter in which the City's business offices are open. AB 939 Fees shall be accompanied by a statement certified by an officer of Contractor attesting to the accuracy of the amounts paid, and setting forth the basis for their calculation in a manner acceptable to City. The AB 939 Fee due in connection with amounts that are collected by the County Tax Assessor shall be deducted by City prior to City forwarding funds it receives from the Tax Assessor for payment of Solid Waste Handling Services to Contractor. The amount of each payment shall be based upon the type of service provided to each Customer and on a monthly basis shall be as set forth on the following table: 384'015610-0089 787054 08 a05/11(07 -36- Table 1: Monthly AB 939 Fee Calculation • Customers receiving Carts or Manual Collection at Dwellings: $.61/month/Customer • Rolloff Boxes: $13.10/ton of Solid Waste Collected • Customers receiving service in Bins: 38+015610-0089 787054 08 a05/11,07 2 YARD BINS Pickups Per Week Monthly AB939 Fee 1 3.88 2 7.76 3 11.63 4 15.51 5 19.39 6 23.27 3 YARD BINS Pickups Per Week AB939 Fee 1 5.82 2 11.63 3 17.45 4 23.27 5 29.07 6 34.89 4 YARD BINS Pickups Per Week AB939 Fee 1 7.76 2 15.51 3 23.27 4 31.01 5 38.76 6 46.51 6 YARD BINS Pickups Per Week AB939 Fee 1 11.63 2 23.27 3 34.89 4 46.51 5 58.14 6 69.78 -37- SECTION 12. CHARGE FOR LATE PAYMENTS In the event Contractor fails to timely make any of the payments provided for in this Agreement (whether reimbursements, Franchise Fees, payments of funds collected in connection with billing services, or otherwise), Contractor shall pay to City, as additional consideration, a sum of money equal to five percent (5%) of the amount due. This amount is required in order to defray those additional expenses and costs incurred by City by reason of the delinquent payment including, but not limited to, the cost of administering, accounting for, and collecting said delinquent payment and the cost to City of postponing services and projects necessitated by the delay in receiving the revenue. In addition, any amounts not paid to City by Contractor within sixty (60) days of the due date shall be subject to interest in the amount of seven percent (7%) per annum, calculated on a daily basis for each day such sums remain past due. SECTION 13. CONTRACTOR'S BILLING SERVICES AND SYSTEMS 13.1 Residential Customers 13.1.1 General — Tax Roll Billing Each Customer at a Single Family Dwelling will be billed via the County tax rolls an amount for the service they receive (i.e., Automated via Carts or Manual Service); excepting those premises for which a Self Hauler exemption has been established as provided in the Municipal Code. If, for any reason, billing for a Customer at a Single Family Dwelling is not placed on the tax rolls as contemplated by the parties herein, such Customer shall be billed for services by Contractor in the same manner as other Customers, as set forth herein below. The maximum rate Contractor may charge Customers at a Single family Dwellings (if any) that are billed "directly" rather than through the tax rolls, shall be as indicated on the attached Exhibit A. 13.1.2 Credit for Residential Customers Receiving Bin Service Any Customer at a Single Family Dwelling that receives Solid Waste Handling Services in a Bin, rather than through the use of a Refuse Cart or Manual Service, shall be billed by Contractor for such service as if they were a Commercial or Multi -Family Dwelling Customer and shall receive a credit from Contractor in an amount equal to the monthly charge for the service type for which they are billed on the tax rolls (with this credit clearly set forth on each billing statement). 13.1.3 Refunds for Vacant Properties Customers that own Single Family Dwellings which are vacant for more than one hundred twenty (120) days shall be entitled to a refund from Contractor for any amounts paid on the tax rolls for services hereunder for each thirty (30) day period during which the vacancy exists. Such Customers shall be responsible to provide reasonable evidence to Contractor, pursuant to such guidelines as the City Manager is hereby authorized to develop, demonstrating the Premises was vacant for the period in question and that payments for which reimbursement is 384015610.0089 787054 08 805111 /07 -38- sought was placed on the tax rolls for the Premises and paid. Requests for refunds shall be made within twelve (12) months of the date payment is due as established by the County Tax Assessor. Contractor shall be responsible to develop a methodology for evaluating and paying such refund requests, which shall be subject to the City Manager's approval. Any Customer grievance regarding a request for a refund pursuant to this Section may be appealed by the Customer to the City Manger whose decision shall be final. Contractor shall be entitled to receive a credit against future Franchise Fee payments for overpayments of Franchise Fees that may occur due to refunds provided pursuant to this Section. 13.2 Billing and Payment for Commercial and Multi -Family Customers 13.2.1 General In connection with any Customer not billed on the County tax rolls for services provided hereunder, Contractor shall provide itemized bills for Solid Waste Handling Services, distinctly showing charges for all classifications of services, including charges for late payments. Contractor acknowledges that it, and not Customers, is to pay a Franchise Fee and AB 939 Fee to City as consideration for this Agreement. Accordingly, Contractor's bills shall not include separate itemization of a "franchise fee" "AB 939 Fee" or other similar designation. Billings shall be made monthly for Commercial Customers and may occur quarterly for Customers at Multi -Family or Single Family Dwellings. Customers may be billed in advance of, or subsequent to services being provided at the option of Contractor. Premises ordering service after the first of the month or canceling service prior to the end of the month shall be charged on a prorated per -pickup basis. 13.2.2 Unoccupied Premises During any time when a Premises is unoccupied for more than one hundred twenty (120) days, and Collection services are not provided by Contractor, Contractor shall not bill such Premises for Solid Waste Handling Service. The Customer at any such Premises shall be responsible to provide reasonable evidence to Contractor, pursuant to such guidelines as the City Manager is hereby authorized to develop, demonstrating the Premises was vacant for the period in question. Any Customer grievance regarding a claim that a Premises was unoccupied and received no service, and hence should not be billed for a given period pursuant to this Section, may be appealed by the Customer to the City Manger whose decision shall be final. 13.2.3 Delinquent Accounts Contractor may discontinue service to any Customer as set forth in this Section. Customers who have not remitted required payments within thirty (30) days after the date of billing shall be notified on forms approved by the City Manager. Said forms shall contain a statement that services may be discontinued fifteen (15) days from the date of notice if payment is not made before that time. If payment is not made by the expiration of said fifteen (15) day period, Contractor may discontinue service forty-eight (48) hours thereafter. Contractor shall resume Solid Waste Handling Services on the next regularly scheduled Collection day for any Customer whose service is discontinued upon receipt of payment of delinquent fees and any related service restart charges, or at such sooner time as directed to do so by City. Any 384,015610-0089 787054 08 a05/11/07 -39- delinquent fees or service charges to be imposed in connection with delinquent accounts shall be set by Contractor and be subject to City Manager approval. 13.2.4 Minimum Requirements for Billing Statements In addition to any other pertinent data, billing statements mailed by Contractor shall be printed to contain the following information: (A) A "statement date" indicating the date the bill is generated and mailed. (B) A notice to Customers that payments are due upon receipt of the bill, an advisement that the Customer's account will become delinquent if payment is not received by the 30th day following the statement date, an advisement of the date and time by which payments must be received in order to avoid delinquent fees (i.e., 4:00 p.m. on the 45th day following the statement date), and a notification of the amount of fees that will be imposed and the potential for service interruptions if payments are not received by the specified date and time. (C) An advisement to Customers that payments can be made in the following manner: designate; or (1) by mailing payment to Contractor at such address as Contractor may (2) by automatic withdrawal from a checking account; or (3) by major credit card on-line (i.e., via the Internet). (D) An advisement that inquiries relating to Solid Waste Handling Services should be directed to Contractor, including an address, phone number and internet site, for such inquiries. 13.2.5 Billing System 13.2.5.1 Computerization of Account Information Contractor shall provide and maintain, at its expense, computer equipment sufficient to operate pertinent computer programs and otherwise provide the services required by this Section. Contractor shall create, at its own expense, computer programs sufficient to operate a computerized billing system, permanently maintain all account records and otherwise meet the requirements of this Section. 13.2.5.2 Minimum Computer Programming Requirements In addition to any other requirements set forth herein, the programs created by Contractor to operate and maintain the billing system shall at a minimum be able to perform the following functions: (A) create a permanent record of any adjustment to a Customer's account; 384/015610-0089 787054.08 405/11,07 -40- (B) work in connection with a backup system such that all Customer account data and records is protected from a computer failure and permanently preserved on not less than a daily basis; (C) allow Customers to make payments on-line (i.e., via the Internet) by a major credit card. 13.2.6 Billing Inquiries All billing inquiries shall be entered into the computerized billing system. Contractor's computer programs shall keep a permanent record of all billing inquiries and all adjustments to Customer bills resulting therefrom. 13.2.7 Distribution of Public Information If requested to do so by City, and at no charge to City, Contractor shall insert any printed material prepared by City into its billing statements for delivery to its Customers. City shall not request Contractor to include any printed material in its bills if such material is of a size, shape, or weight that would increase Contractor's postage costs or if such material does not fit into the envelopes utilized by Contractor to mail the bills. Any printed material to be included in the bills to be mailed by Contractor shall be provided to Contractor within a reasonable time in advance of Contractor's scheduled mailing date, such that the insertion of such material into billing envelopes does not delay their scheduled mailing date. 13.3 Payment, Accounting Systems 13.3.1 Collection and Processing of Payments 13.3.1.1 Accounting and Deposit of Funds All payments received by Contractor shall be appropriately credited to Customer accounts, deposited in a bank account and accounted for in a businesslike manner utilizing generally accepted accounting principles. To facilitate audits and record keeping Contractor shall make all withdrawals from its bank accounts by check, regardless of whether the withdrawal is to provide funds to City, Contractor, or any permissible subcontractor of Contractor. 13.3.1.2 Allocation of Funds With respect to payments received from each Customer, unless a Customer specifically directs a different allocation, funds shall be allocated first to outstanding charges for Solid Waste Handling Services, then to any related delinquency fees or other administrative charges, up to the amount of any outstanding balance. Any overpayment shall be credited to future bills in the same sequence, or returned to Customers as appropriate. 384;015610-0089 787054 088050 1,07 -41- 13.3.1.3 Allocation of Funds by City Within ninety (90) days of City's receipt of funds from the County Tax Assessor for payment of Solid Waste Handling Services, City shall provide an accounting to Contractor of the funds received and City's allocation of such funds. City shall at the same time forward the amounts it received from the County Tax Assessor as payment for Solid Waste Handling Services to Contractor, but shall withhold any amounts due to City as Franchise Fees and AB 939 Fees, as well as an amount equal to any amounts due to City pursuant to the terms hereof but not yet paid by Contractor. 13.3.1.4 Tax Roll Payments Limited City has agreed to continue the practice established in the Prior Agreements of allowing the rates charged by Contractor to its Customers for services to be collected on the County property tax rolls. City is not by entering this agreement imposing any tax or levy on Contractor's Customers, and Contractor shall bear all risk that the property tax levy is not sufficient to cover its fees for services. Should that occur, Contractor's sole remedy shall be against its Customer, and Contractor shall have no recourse with City. In as much as payments may occur through the tax rolls by Customer's prior to services being received, City shall have the right to adjust payments to Contractor pursuant to Section 13.3.1.3 to ensure Contractor is not paid for services it does not provide. For instance, in the event payments occur in advance of the end of the Term of this Agreement, City shall not deliver funds to Contractor for periods following the end of the Term in which Contractor does not actually provide services. SECTION 14. FAITHFUL PERFORMANCE (A) Contemporaneously with execution of this Agreement, as security for Contractor's faithful performance of all obligations of this Agreement, Contractor shall provide a surety mechanism (the "Surety") as more fully defined below in the amount of One Million Dollars ($1,000,000.00). The Surety may be comprised of a combination of a performance bond and an irrevocable letter of credit however not more than ninety percent (90%) of the Surety may be in the form of a performance bond. The letter of credit utilized to satisfy the Surety requirement shall be drawn upon a financial institution with an office within one hundred (100) miles of City, and otherwise in a form acceptable to the City Attorney, and the performance bond, if any, shall be issued by a duly authorized corporate surety company authorized to do business in California, and in a from acceptable to the City Attorney. The cost of the Surety shall be the sole responsibility of Contractor. The Surety shall be released within thirty (30) days after both (i) the expiration of the Term of this Agreement; and (ii) Contractor's satisfactory performance of all obligations hereunder. (B) In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the Surety, as may be necessary to recompense and make whole the City, forfeited to the City. Upon partial or full forfeiture of the Surety, Contractor shall restore the Surety to its original amount within thirty (30) days of the City's notice to do so. Failure to restore the Surety to its full amount within thirty (30) days shall be a material breach of this Agreement. 384015610-0089 787054 08 a05/11/07 -42- (C) Notwithstanding any provision hereof to the contrary, thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, either the letter of credit or performance bond comprising the Surety may be utilized by City for purposes including, but not limited to: (1) Payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City, including specifically liquidated damages. (2) Reimbursement of costs bome by City to correct violations of this Agreement not corrected by Contractor. (D) City may draw upon the entire letter of credit utilized to meet Contractor's obligations pertaining to the Surety, and convert it to a cash deposit, if Contractor fails to cause the letter of credit to be extended or replaced with another satisfactory letter of credit no later than sixty (60) days prior to its expiration. SECTION 15. INSURANCE COVERAGE Contractor shall procure and maintain during the entire Term of this Agreement the following types of insurance, and shall maintain the following minimum levels of coverage, which shall apply to any claims which may arise from or in connection with Contractor's performance hereunder or the actions or inactions of any of Contractor's officers, agents, representatives, employees, or subcontractors in connection with Contractor's performance. The insurance requirements hereunder in no way limit Contractor's various defense and indemnification obligations, or any other obligations as set forth herein. 15.1 Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. The most recent editions of Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 00 01). 2. The most recent editions of Insurance Services Office form number CA 00 01 1001 covering Automobile Liability, code 1 "any auto". 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. 15.2 Minimum Limits of Insurance. Contractor shall maintain in force for the term of this Agreement limits no less than: a. Comprehensive General Liability: Ten Million Dollars ($10,000,000) limit aggregate and Ten Million Dollars ($10,000,000) limit per occurrence for bodily injury, personal injury and property damage. Such limits can be achieved through a combination of primary and excess liability policies. 384015610-0089 787054 08 8053 1/07 -43- b. Automobile Liability: Ten Million Dollars ($10,000,000) limit aggregate and Ten Million Dollars ($10,000,000) limit per accident for bodily injury and property damage. Such limits can be achieved through a combination of primary and excess liability policies. c. Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of One Million Dollars ($1,000,000) per accident. 15.3 Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. If, in the reasonable opinion of the City, Contractor does not have sufficient financial resources to protect the City from exposure with respect to any deductibles or self- insured retentions, at the option of City, either: the insurer shall reduce or eliminate such deductibles or self-insured retention's as respects City, its officials, employees and agents; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 15.4 Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 15.4.1 General Liability and Automobile Liability Coverages City, its elective and appointive boards, commissions, officials, employees, agents and volunteers are to be named as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor; Premises owned, leased or used by Contractor; or vehicles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elective and appointive boards, commissions, officials, employees, agents or volunteers. Contractor's insurance coverage shall be primary insurance as respects City, its elective and appointive boards, commissions, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by City, its officials, elective and appointive boards, commissions, employees, agents or volunteers shall be excess of Contractor's insurance and shall not contribute with it. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officials, elective and appointive boards, commissions, employees, agents or volunteers. Coverage shall state that Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 3844)15610-0089 787054.08 305/11 /07 -44- 15.4.2 Workers' Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against City, its officials, elective and appointive boards, commissions, employees, agents and volunteers for losses arising from work performed by Contractor for City. 15.4.3 All Coverages Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. 15.5 Acceptability of Insurers. The insurance policies required by this Section shall be issued by an insurance company or companies authorized to do business in the State of California and with a rating in the most recent edition of Best's Insurance Reports of size category VII or larger and a rating classification of A or better, unless otherwise approved by the City Manager. 15.6 Verification of Coverage. Contractor shall furnish City with certificates of insurance and with original endorsements affecting coverage required by this Article. The certificates and endorsements for each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms provided by or acceptable to City and are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 15.7 Loss or Reduction in Insurance In the event that Contractor fails to retain or maintain insurance with the scope and amounts of coverage required hereunder, City shall have the right, but not the obligation to either terminate this Agreement, or obtain insurance coverage as required herein on behalf of Contractor and utilize funds from the Surety defined in Section 14 to pay the cost of providing such coverage. SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND LIMITATIONS 16.1 General Contractor shall not assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement (collectively referred to as an "Assignment") to any other Person without the prior approval by the City Council of the City. Any such Assignment made without the approval by the City Council of the City shall be void and the attempted Assignment shall constitute a material breach of this Agreement. 384015610-0089 787054 08 805/11/07 -45- 16.2 "Assignment" to be Broadly Interpreted For purposes of this Section the term "Assignment" shall be given the broadest possible interpretation, and shall include, but not be limited to: (i) a sale, exchange or other transfer of substantially all of the Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of any membership interest of Contractor to a third party; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction which results in a change of ownership or control of Contractor; (iv) any assignment by operation of law, including those resulting from mergers or acquisitions by or of Contractor of any of its Affiliates, insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership, or change of control of Contractor. 16.3 Nature of Agreement — Personal to Contractor Contractor acknowledges that this Agreement involves rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste Handling Services in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement. 16.4 Procedure for Consideration of Assignment If Contractor requests City's consideration of and consent to an Assignment, the City Council of City may deny, approve or conditionally approve such request in its sole and absolute discretion. Under no circumstances shall City be obliged to consider any proposed Assignment if Contractor is in default at any time during the period of consideration. Should the City consent to any Assignment request, such Assignment shall not take effect until all conditions relating to the City's approval have been met Any request for an Assignment shall be made in a manner to be prescribed by the City Manager, and no request by Contractor for consent to an Assignment need be considered by City unless and until Contractor has met (or with respect to matters that would only occur upon completion of the Assignment if approved, made reasonable assurances that it will meet) the following requirements: (A) Contractor shall undertake to pay City its reasonable direct and indirect expenses, including administrative, investigative, consulting, and attorney's fees and costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such Assignment (collectively the "Administrative Assignment Fee"). An advance non-refundable payment of fifty thousand 384015610-0089 787054 08 a05/11/07 -46- dollars ($50,000.00) towards the Administrative Assignment Fee shall be paid to the City prior to City's consideration of any Assignment request, although Contractor shall be responsible to pay all costs incurred by City in considering a request for Assignment, including those in excess of the aforesaid deposit amount, regardless of whether City consents to the Assignment. (B) Contractor shall pay to City a transfer fee (the "Transfer Fee") in the following amount: (1) if the request is dated prior to June 30, 2010, the fixed Transfer Fee shall be two hundred fifty thousand dollars ($250,000.00); (2) if the request is dated after June 30, 2010; and prior to June 30, 2011, the fixed Transfer Fee shall be two hundred thousand dollars ($200,000.00); (3) if the request is dated after June 30, 2011, and prior to June 30, 2012, the fixed Transfer Fee shall be one hundred fifty thousand dollars ($150,000.00); (4) if the request is dated after June 30, 2012, and prior to June 30, 2013, the fixed Transfer Fee shall be one hundred thousand dollars ($100,000.00); (5) if the request is dated after June 30, 2013, and prior to June 30, 2014, the fixed Transfer Fee shall be seventy five thousand dollars ($75,000.00); (6) if the request is dated after June 30, 2014, the fixed Transfer Fee shall be fifty thousand dollars ($50,000.00). (C) If requested to do so, Contractor shall furnish City with audited financial statements of the proposed assignee's operations for the immediately preceding three (3) operating years. (D) Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on an scale equal to or exceeding the scale of operations conducted by Contractor under this Agreement, (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local laws, including the Environmental Laws and that the assignee has provided City with a complete list of such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Collection and disposal of Solid Waste including Hazardous Substances; and, (v) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. (E) The proposed assignee shall execute an agreement assuming all of Contractors rights and liabilities under this Agreement. 384'015610-0089 787054 08 a05/11'07 -47- 16.5 Assignment to a Family Member (A) Contractor is a Limited Liability Company (LLC) the membership interests for which are divided equally among four family members: Ed Burr, Cole Bun, Sandra Burr and Tracy Burr. Notwithstanding the fact it would otherwise fall within the provisions of this Section, any transfer of membership interests to an immediate family member of any of the above noted members may occur with the written approval of the City Manager, and without any of the other provisions of this Section 16 applying if Contractor certifies and the City Manger verifies that the transfer is in fact to an immediate family member or members; and, the City Manager finds both of the following: (i) that the transfer of membership interest will have no adverse impact on Contractor's operations in City, and (ii) that the transfer of membership interest will not result in any interest in Contractor being vested in any person who is not an immediate family member of the above noted four initial members of Contractor. In the event the City Manager is unable to make these findings, or has any concern regarding his ability to do so, he may refer the matter in whole or part to the City Council for its consideration, approval, or other action, and the City Council shall have the discretion to consider the matter as if it is a transfer as described in Sections 16.1 through 16.4. SECTION 17. REVIEW OF SERVICES AND PERFORMANCE 17.1 Performance Hearing (A) Commencing in or about October 2008, and on a biennial basis thereafter, City may hold a public hearing to review Contractor's Solid Waste Collection efforts, source reduction, processing and other diversion services and overall performance under this Agreement (the "Solid Waste Services and Performance Review Hearing"). The purpose of the Solid Waste Services and Performance Review Hearing is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, recycling, processing and disposal to achieve a continuing, advanced Solid Waste Collection, source reduction and recycling and disposal system, and to ensure services are being provided by Contractor with adequate quality, effectiveness and economy and in full compliance with the terms of this Agreement. Topics for discussion and review at the Solid Waste Services and Performance Review Hearing shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, Customer complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939's goals, regulatory constraints and Contractor performance. City and Contractor may each select additional topics for discussion at any Solid Waste Services and Performance Review Hearing. (B) In addition to the Solid Waste Services and Performance Review Hearings City may hold in accordance with the immediately preceding paragraph, if the number of Customer complaints regarding Contractor's Solid Waste Handling Services are deemed by City to be excessive, City may, at any time (subject to the paragraph immediately below), hold a Solid Waste Services and Performance Review Hearing. 384/015610-0089 787054.08 a05/I Ii07 -48- (C) City shall notify Contractor of its intent to hold a Solid Waste Services and Performance Review Hearing at least ninety (90) days in advance thereof. Forty-five (45) days after receiving notice from City of a Solid Waste Services and Performance Review Hearing, Contractor shall submit a report to City which may contain such information as it wished to have considered, and shall contain the following: (1) Current diversion rates and a report on Contractor's outreach activities for the past year. (2) Recommended changes and/or new services to improve the City's ability to meet the goals of AB 939 and to contain costs and minimize impacts on rates. (3) Contractor. Any specific plans for provision of changed or new services by (D) The reports required by this Agreement regarding Customer complaints shall be used as one basis for review of Contractor's performance, and Contractor may submit other relevant performance information and reports for consideration at the Solid Waste Services and Performance Review Hearing. In addition to the above, City may request Contractor to submit any other specific information relating to its performance for consideration at the Solid Waste Services and Performance Review Hearing, and any Customer may submit comments or complaints during or before the Hearing, either orally or in writing. Contractor shall be present at and participate in the Solid Waste Services and Performance Review Hearing. 17.2 Performance Satisfaction Survey If requested by the City, Contractor will create and conduct a survey at Contractor's expense in preparation for any Solid Waste Services and Performance Review Hearing held pursuant to Section 17.1. City shall notify Contractor of its desire for such a survey at least ninety (90) days in advance of the Solid Waste Services and Performance Review Hearing. The purpose of the survey is to determine Customer satisfaction with current Collection services and Customer service provided by the Contractor. The Survey will be distributed to a minimum of ten percent (10%) of the Customers, selected at random. Contractor shall obtain City's approval of the survey's content, format, and mailing list prior to its distribution. The City may require that Contractor have Customer responses to the survey returned directly to the City. The Survey results shall be made available to the City thirty (30) days prior to the Solid Waste Services and Performance Review Hearing. SECTION 18. CITY'S REMEDIES; DEFAULT AND TERMINATION 18.1 Notice of Default If the City Manager determines that Contractor has defaulted in the performance of any obligation hereunder, or that Contractor's performance pursuant to this Agreement with respect to such matters has not been in conformity with reasonable industry standards which are obtained in similar cities in Southern California, the provisions of this Agreement, the requirements of the Municipal Code, the requirements of the California Integrated Waste Management Board, 384015610-0089 787054 08 a05/11/07 -49- including, but not limited to, requirements for source reduction and recycling or any other applicable Federal, State, or local law or regulation, including but not limited to the laws governing transfer, storage, or disposal of special wastes, or hazardous wastes, the City Manager may provide written notice to Contractor of such default. The City Manager may, in such written notice, set a reasonable time within which correction of such default shall be made. Unless a longer or shorter time is otherwise specified by the City Manager, a reasonable time for correction shall be thirty (30) days from the date such written notice is given. 18.2 Failure to Cure If Contractor fails to correct, to the satisfaction of the City Manager, all deficiencies contained in the written notice thereof within the specified time, or if it is not reasonably possible to correct such deficiencies within the specified time, and Contractor fails to commence to correct or remedy such deficiencies within the specified time and diligently effect such correction or remedy thereafter, then the City Manager may refer the matter to the City Council for review, or review the matter himself. 18.3 Review by City Manager If the City Manager reviews the matter and determines that Contractor has failed to properly or adequately cure any default set forth above, the City Manager, in the exercise of his discretion, may terminate this Agreement, or take such other action as he deems appropriate to pursue any remedy available to City. A decision or order of the City Manager shall be final and binding on Contractor unless Contractor files a "Notice of Appeal" with the City Clerk within five (5) business days of the date the notice of the City Manager's decision is given. The City Manager shall schedule any appeal for consideration by the City Council at the earliest feasible City Council Meeting following the date a Notice of Appeal is given to City. 18.4 City Council Review In the event an appeal of a decision of the City Manager is filed, or if the City Manager refers the matter to the City Council without rendering a decision, the City Council shall set the matter for consideration before the City Council as a regular agenda item. In reviewing the matter the City Council may consider any information reported by the City Manager regarding the deficiencies, and shall give Contractor, or its representatives and any other interested person, a reasonable opportunity to be heard. The Council shall determine whether Contractor has failed to properly or adequately perform as set forth above, and if so whether to terminate the Agreement, or to pursue any other remedy available to City. 18.5 Performance During Reviews Contractor's performance under this Agreement is not excused during any period of time when its performance is under review as set forth above, including at any time prior to a final decision as to whether such performance is deficient. 384'015610-0089 787054 OS 605111z07 -50- 18.6 Termination without Right to Cure The above right of termination as a result of Contractor's failure to timely cure any deficiency is in addition to City's right to terminate this Agreement without affording Contractor an opportunity to cure in circumstances where Contractor is determined by City to have materially breached this Agreement. City shall thus be afforded the right to terminate this Agreement in the event of any material breach hereof by Contractor without affording Contractor the right to cure as a result of any action, inaction or circumstance which is a legally defined material breach, or is defined herein as a material breach, and/or under any of the following circumstances which are hereby specifically defined as material breaches: (A) If Contractor practices, or attempts to practice, any fraud upon City. (B) If Contractor becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of Contractor in a bankruptcy proceeding. (C) If Contractor willfully violates any orders or rulings of any regulatory body having jurisdiction over Contractor relative to this Agreement. So long as City's rights are not prejudiced during the pendency of any challenge to such orders or rulings by Contractor, Contractor may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no material breach of this Agreement shall be deemed to have occurred until a final ruling has been rendered. (D) If Contractor ceases to provide Solid Waste Handling Services, including Collection of Solid Waste and/or Recyclable Material, as required under this Agreement over all or any portion of the Franchise Area for a period of seven (7) days or more, for any reason not specified as a force majeure event hereunder. (E) If Contractor fails to materially comply with any insurance or indemnification requirement set forth in this Agreement. (F) If City is required to pay any fine or penalty, which is not paid on its behalf by Contractor or which Contractor fails, refuses, neglects or is unable to pay or indemnify City against, relating to any diversion or other requirement of AB 939. (G) If Contractor, or any management level employee of Contractor is convicted of a Criminal Matter (as defined herein). For purposes of this Section the term Criminal Matter refers to any felony or misdemeanor offense having any relationship to either Solid Waste Handling Services or public corruption (including, without limitation, bribery, conflict of interest related allegations, vote selling, or any similar type charges). 18.7 Liquidated Damages .18.7.1 General The City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific 384/015610-0089 787054 08 405/11/07 _51_ obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. 18.7.2 Service Performance Standards; Liquidated Damages for Failure to Meet Standards The parties further acknowledge that consistent, reliable Solid Waste Handling Service is of utmost importance to City and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement with it. The parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default, the parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has d ample opportunity to consult with legal counsel and obtain an explanation of the liquidat' 1 damage provisions at the time that the Agreement was made. Contractor Initial Here City Initial Here 18.7.3 Calculations for Liquidated Damages Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below for each type of action warranting such damages: 18.7.3.1 Collection Reliability (A) For each failure to commence service to a new Customer account within seven (7) days after order, which exceed five (5) such failures annually: $150.00 384;015610-0089 787054 08 405/11 07 -52- (B) " For each failure, which exceeds ten (10) such failures annually, to Collect Solid Waste from any established Customer account on the scheduled Collection day and not Collected within the period described in this Agreement: $150.00 (C) For each failure to Collect Solid Waste, which has been properly set out for Collection, from the same Customer on two (2) consecutive scheduled pickup days: $150.00 18.7.3.2 Collection Quality (A) For each occurrence of failure to properly return empty Containers to avoid pedestrian or vehicular traffic impediments or to place Containers upright with lids secured which exceeds ten (10) such occurrences annually: $150.00 (B) For each occurrence of excessive noise or discourteous behavior which exceeds ten (10) such occurrences annually: $250.00 (C) For each occurrence of Collecting Solid Waste during unauthorized hours which exceeds five (5) such occurrences annually: $250.00 (D) For each occurrence of damage to private property which exceeds five (5) such occurrences annually: $250.00 (E) For each failure to clean up Solid Waste spilled from Containers within 90 minutes that exceeds ten (10) such failures annually: $150.00 18.7.3.3 Customer Responsiveness (A) For each failure to initially respond to a Customer complaint within one (1) business day, which exceeds five (5) such occurrences annually, and for each additional day in which the complaint is not addressed: $250.00 (B) For each failure to process Customer complaints to City as required herein, which exceeds five (5) such occurrences annually: $250.00 (C) For each failure to remove graffiti from Containers, or to replace with Containers bearing no graffiti, within twenty-four (24) hours of request from City or Customers: $150.00 18.7.3.4 Timeliness of Submissions to City (A) Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be: 384015610-0089 787054 08 /805/11/07 (1) Monthly Reports: $100.00 per day (2) Quarterly Reports: $250.00 per day (3) Annual Reports: $350.00 per day -53- 18.7.4 Process for Assessment of Liquidated Damages (A) City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representative or investigation of Customer complaints. (B) Prior to assessing liquidated damages, City shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s)/non-performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City. Contractor may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. City will provide Contractor with a written explanation of his or her determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City shall be final. (C) City may assess liquidated damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement. 18.7.5 Timing of Payment Contractor shall pay any liquidated damages assessed by City within ten (10) days after they are assessed. If they are not paid within the ten (10) day period, City may proceed against any security required by this Agreement to obtain payment, deduct amounts due from funds it receives from the County Tax Assessor which would otherwise be due Contractor, and/or find Contractor in default and exercise its right to terminate this Agreement as set forth herein. SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING 19.1 Administrative Hearing Should Contractor contend that City is in breach of any aspect of this Agreement, it shall give notice to the City Manager requesting an administrative hearing on the allegation. The hearing shall occur as soon as reasonably possible, or on such date as mutually agreed by the parties, and shall be held before an impartial hearing officer to be determined by the City Manager. The hearing officer shall make an advisory ruling on Contractor's allegations, and suggest a remedy if a breach by City is determined to exist. The hearing officer's ruling and recommendations shall become final and binding if the parties so agree in writing within thirty (30) days of the date notice of the decision is given to both parties. Otherwise, the hearing officer's ruling shall have no further force or effect. 19.2 Other Remedies; Claims Contractor shall be entitled to all available remedies in law or equity for City's breach of this Agreement; provided, however, Contractor shall not file or otherwise commence any action against City, in law or equity, in any court, until after an administrative hearing as set forth above 384015610-0089 787054 08 a05/11,07 -54- has been completed, and the above noted thirty (30) day period to accept the hearing officer's decision has passed, or either City or Contractor has given timely written notice to the other that it will not accept the hearing officer's decision. 19.3 Actions for Damages As a prerequisite to the filing and maintenance of any action for damages by Contractor against City arising out of this Agreement, Contractor shall present a claim to City, as required by Government Code Section 910 et seq., within 30 days of the date of the occurrence giving rise to the claim for damages. SECTION 20. CITY'S ADDITIONAL REMEDIES In addition to any other remedies set forth herein, City shall be entitled to any or all of the following rights and remedies in the event of a breach of this Agreement by Contractor: (A) The right to use Contractor's Containers for the purpose of Collecting, transporting, and/or disposing of Solid Waste, including Recyclable Material, for a period not to exceed six (6) months. In the case of Containers not owned by Contractor, Contractor shall assign to City, to the extent Contractor is permitted to do so under the instruments pursuant to which Contractor possesses such Containers, the right to use and possess the Containers. If City exercises its rights under this Section, City shall pay to Contractor the reasonable rental value of the Containers for the period of City's possession thereof; (B) The right to license others to perform the services otherwise to be performed by Contractor hereunder, or to perform such services itself; and (C) The right to obtain damages and/or injunctive relief'. Both parties recognize and agree that in the event of a breach of this Agreement by Contractor, City will suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to specifically enforce the provisions of this Agreement, and to enjoin the breach hereof. SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY 21.1 Provision of Service Should Contractor, for any reason whatsoever, refuse or be unable to provide Solid Waste Handling Services for a period of more than seventy-two (72) hours, and if as a result thereof, Solid Waste should accumulate in City to such an extent or in such a manner that the City Manager finds that such accumulation endangers or menaces the public health, safety, or welfare, City shall have the right, upon twenty-four (24) hours prior written notice to Contractor, during the period of such emergency, to temporarily take possession of any or all equipment and facilities of Contractor previously used in providing Collection, transportation, and disposal of Solid Waste and provide, through its own forces or otherwise, Solid Waste Handling Services which Contractor otherwise would be obligated to provide pursuant to this Agreement. 384/015610-0089 787054 08 a05/11,07 -55- Contractor agrees that in such event it shall fully cooperate with City to affect such a transfer of possession for City's use. 21.2 Possession of Equipment Contractor agrees, that in the event of circumstances described in Section 21.1 above, City may take temporary possession of and use all of said equipment and facilities without paying Contractor any rental or other charge. Upon Contractor giving City notice that it is able to resume its normal responsibilities under this Agreement City shall either relinquish possession of all of the above mentioned property to Contractor. 21.3 Exclusions from Right to Possession of Equipment without Compensation Specifically excluded from the circumstances in which City may posses and utilize Contractor's equipment without compensation are circumstances in which Contractor fails or refuses to provide Solid Waste Handling Services hereunder for any reason which is not a force majeure event as defined herein. In such circumstances City's right to utilize and possess Contractor's equipment shall be subject to the provisions of the above Section 20. SECTION 22. PRIVACY Contractor shall strictly observe and protect the privacy rights of Customers. Information identifying individual Customers or the composition or contents of a Customer's Solid Waste stream, or any of the billing information pertaining to any Customers, shall not be revealed to any person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, ordinance, or regulation of a governmental agency having jurisdiction, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste audits which may be required by AB 939 or this Agreement. Contractor shall not market or distribute, outside the normal course of its business, mailing lists with the names and addresses of Customers. The rights afforded Customers pursuant to this Section shall be in addition to any other privacy right afforded Customers pursuant to federal or state law. SECTION 23. REPORTS AND ADVERSE INFORMATION Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Reports are intended to compile recorded data into useful forms of information that can be used to, among other things: a. Determine and adjust the maximum allowable rates and evaluate the financial efficacy of operations; b. Evaluate past and expected progress towards achieving AB 939 goals and objectives; 384/015610-0089 787054 08 605/11/07 -56- c. Determine needs for adjustment to programs, and, d. Evaluate Customer service and complaints. Contractor may propose report formats that are responsive to the objectives and audiences for each report. The format of each report shall be approved by City. In addition to submitting all reports on paper, Contractor agrees to submit all reports in an electronic format approved by the City, compatible with City's software/computers at no additional charge. Monthly reports shall be submitted within twenty (20) calendar days after the end of the report month. Quarterly reports shall be submitted within twenty (20) calendar days after the end of the calendar quarter. 23.1 Monthly Reports At a minimum, Contractor shall report the following to City on a monthly basis: Solid Waste Collected by Contractor for each month, sorted by type of Solid Waste in tons broken down at level acceptable to City (which at a minimum shall include: refuse, green waste, quarts of used oil, number of oil filters, e -waste item counts, types of recyclables including PETE, HDPE, mixed plastics, aluminum, cardboard, mixed paper, sand, and concrete), as well as by customer type (i.e., single family, commercial, roll -off, curbside used oil, etc.); the Facilities where all Solid Waste Collected was processed or disposed; warning notices issued for contaminated Recyclable Materials, and green waste Containers; and a narrative summary of problems encountered (including scavenging) and actions taken with recommendations for City, as appropriate. 23.2 Quarterly Reports At a minimum, Contractor shall report the following to City on a quarterly basis: the information required in the monthly reports; the complaint summary for the quarter summarized by nature of complaints; copies of promotional and public education materials sent during the quarter; description of Contractor outreach activities conducted the previous quarter; and such other information or reports that the City may reasonably request or require. Contractor shall, upon demand by City, provide true and accurate copies of landfill tipping receipts and similar such documents in order to enable City to verify Contractor's quarterly reports. 23.3 Annual Reports On or before June 30 of each year during the Term of this Agreement and within fifteen (15) days prior to the end of the Tenn, Contractor shall submit a written annual report, at its sole expense, in a form approved by City, which includes, but is not limited to, the following information: (A) A summary of the previous year's activities including, but not limited to, services begun or discontinued during the reporting year, and the number of Customers broken down on a monthly basis; 384015610-0089 787054.08 805/11707 -57- (B) A summary of the total tons of Solid Waste Collected in City in the preceding year as well as a summary of the total tonnage diverted from the State's landfill systems during that time frame; (C) Information and reports required by City to meet its reporting obligations imposed by AB 939 and the regulations implementing AB 939, in a form and content approved by the City Manager; (D) A revenue statement, certified by the chief financial officer of Contractor, setting forth Franchise Fees and AB 939 Fees paid and the basis for the calculation thereof, including specifically a breakdown of sources of revenue included in Gross Receipts and the amount of revenue derived from each such source comprising Gross Receipts; (E) A list of Contractor's officers and members of its Board of Directors; (F) A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in Contractor and any subsidiaries unless Contractor is a public corporation whose annual reports are publicly available; and (G) Contractor agrees to submit such reports and information on computer discs or electronically in a standard format compatible with City's computer system as it may be upgraded from time to time, at no additional charge, if requested by City. 23.4 Financial Report City may require that Contractor provide Contractor's financial reports/statements for the most recently completed fiscal year in connection with an extraordinary rate adjustment request, any audit, or any effort to verify information required under this Agreement, or make such information available for review by its consultants. Financial statements shall include a supplemental schedule showing Contractor's results of operations, including the specific revenues and expenses in connection with the operations provided for in this Agreement, separated from others included in such financial statements. The financial statements and footnotes shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP) and audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a certified public accountant (CPA) licensed (in good standing) to practice public accounting in the State of California as determined by the State of California Department of Consumer Affairs Board of Accountancy. The cost for preparation of the financial statements and audit shall be borne by Contractor as a direct cost of service. In addition, Contractor shall provide to City the supplemental schedule on a compiled basis. City shall to the extent legally possible keep Contractor's Financial statements as confidential documents, not subject to the California Public Records Act, including if Contractor avails itself of the protection afforded by Public Resources Code Section 40062 in providing information required by this Section. 23.5 Adverse Information (A) Contractor shall provide City two copies of all reports and other material adversely affecting this Agreement submitted by Contractor to the United States Environmental Protection Agency, the California Integrated Waste Management Board, the California Regional 384015610-0089 787054 08 605/11107 -58- Water Quality Control Board, and any other federal, state, regional, or local regulatory agency. Copies shall be submitted to City simultaneously with Contractor's filing of such matters with said agencies. Contractor's routine correspondence to said agencies need not be automatically submitted to City, but shall be made available to City upon written request. (B) Contractor shall submit to City copies of all pleadings, applications, notifications, communications, and documents of any kind submitted by Contractor to, as well as copies of all decisions, correspondence, and actions by, any Federal, State, and local courts, regulatory agencies, and other government bodies relating in any manner to Contractor's performance of services pursuant to this Agreement. To the degree authorized by law, any confidential data exempt from public disclosure shall be retained in confidence by City and its authorized agents and shall not be made available for public inspection. (C) Contractor shall submit to City such other information or reports in such forms and at such times as City may reasonably request or require. (D) All reports and records required under this or any other Section shall be furnished at the sole expense of Contractor. 23.6 Disaster Plan Contractor provided a disaster plan as part of the Prior Agreements. Within 90 days of the Effective Date, Contractor shall prepare an updated draft disaster debris cleanup implementation plan that sets forth procedures for collection of debris following a major disaster such as an earthquake, fire or other similar event. The disaster plan shall address priorities for cleanup at critical facilities, procedures for reimbursement for costs, describe communication plans, list key contact persons, and provide maps showing proposed sites for stockpiling of disaster debris that cannot be transported to the landfill. Contractor shall coordinate the plan with the Coachella Valley Business Emergency Service Teams. The draft plan shall be presented to City for its consideration, and the final plan shall incorporate City's comments. The final plan shall be distributed to those employees of Contractor and City who would have a role in implementing it in the event of a disaster. 23.7 Failure to Report The refusal, failure, or neglect of Contractor to file any of the reports required, or the inclusion of any materially false or misleading statement or representation made knowingly by Contractor in such report shall be deemed a material breach of the Agreement, and shall subject Contractor to all remedies, legal or equitable, which are available to City under this Agreement or otherwise. SECTION 24. COMPENSATION 24.1 Contractor Rates Contractor shall provide services to Customers pursuant to this Agreement at rates it sets, charges to, and collects from Customers, which rates shall not exceed those set forth in the 384/015610-0089 787054 08 a05/11107 _59_ attached Exhibit A, which sets out the maximum rates that may be charged by Contractor, as such maximum rates may be adjusted from time to time pursuant to the terms hereof. The maximum rates set forth in Exhibit A are inclusive of all services to be provided, including transportation, disposal, and Bin costs, and no other charges shall be imposed by Contractor for such services. 24.2 Resolution of Disputes Regarding Rate Adjustments Any dispute regarding an adjustment to the maximum rates Contractor may charge, or the computation thereof, shall be decided by the City Manager. The rates in effect at the time such dispute is submitted to the City Manager shall remain in effect pending resolution of such dispute. The effective date of the adjusted maximum rate following the resolution of any such dispute, whether retroactive or prospective, shall be determined by the City Manager. 24.3 Annual Consumer Price Index Adjustments to Service Component Commencing on July 1, 2008, the service component associated with any of the maximum rates as set forth in Exhibit A shall be adjusted, and such rates shall be adjusted annually thereafter on each subsequent July 1st during the Term hereof (the "Adjustment Dates"), by the following formula: The service component less applicable AB 939 Fee set forth in Section 11.5 (if any) multiplied by a percentage equal to the change in the Consumer Price Index ("CPI") for All Urban Consumers, CUURA421SA0 not seasonally adjusted, all items index (CPI -U) — Los Angeles County, Riverside County, Orange County average for the twelve (12) month period commencing fifteen (15) months prior to the applicable Adjustment Date and ending three (3) months prior to the applicable Adjustment Date. At least forty-five (45) days prior to charging Customers any rate increased due to an increase in the CPI, Contractor shall obtain the City Manager's approval to do so. The City Manager shall approve such a request unless he determines, based upon substantial evidence, that the requested adjustment to the maximum rate does not meet the requirements as set forth herein. 24.4 Limitations to Annual CPI Adjustments to Service Component Notwithstanding anything to the contrary in Section 24.3 above, the maximum annual adjustment occurring pursuant to Section 24.3 shall be limited by the provisions set forth below: 24.4.1 Rate Guarantee Contractor has made various assurances to the effect that City's rate for Solid Waste Handling Services at Single Family Residential Dwellings will be among the lowest in the Coachella Valley. Hence, notwithstanding any increase in the CPI no annual increase to the maximum rates set forth on Exhibit A will exceed 103% of the lowest rate for "similar services" provided to residents at Single Family Dwellings anywhere in the Coachella Valley. For purposes of this Agreement, the rate for "similar services" is intended to mean the rate charged for services that include automated curbside Collection of mixed solid waste, automated collection of Recyclable Materials, and automated collection of green waste. No consideration of manual collection, or other special services provided to gated communities shall be considered when determining if services are similar in another community. As a further limitation, the maximum rates on Exhibit A shall never exceed the lowest rate for similar services in more than 384015610-0089 787054 08 805/11/07 -60- one City in the Coachella Valley (i.e., the maximum amount of any increase to the maximum rate shall be limited such that City's rates shall always be either the lowest, or second lowest rates for similar services in the Coachella Valley.) 24.4.2 Six Percent (6%) Cap The service component of the maximum rate may not be increased in any given year by more than six percent (6%) without regard to any higher increase which may otherwise be justified by the formula set forth in Section 24.3. 24.4.3 Compliance with Agreement No increase to the maximum rates shall occur if the City Manager determines that Contractor did not fully comply with all terms of this Agreement in the Rate Year preceding the increase, including without limitation, provisions hereof relating to reporting, diversion, and Customer service standards. 24.5 Disposal Component Adjustments It is the intention of the parties that the disposal component associated with any of the maximum rates as set forth in Exhibit A shall be adjusted no more often than annually on each Adjustment Date such that they reflect each Customers pro -rata share of any increase or decrease in the actual tipping fees charged by the location to which Solid Waste is delivered by Contractor for disposal. As of the Effective Date Contractor has indicated that the Edom Hill Transfer Station is to be the disposal site, and the maximum rates set forth in Exhibit A reflect the costs of disposal at that location. In the event the tipping fees charged by this disposal site increase or decrease, or if a new disposal site is proposed by Contractor and approved by City, the parties shall negotiate in good faith to determine the appropriate pro -rata change to the maximum rates charged to each Customer, taking into account all relevant financial data including processing costs and revenues for Solid Waste not taken to the disposal site, and the disposal component of the maximum rates set forth on Exhibit A will thereafter be adjusted accordingly at the next Adjustment Date. The City Manager may approve changes in the disposal component associated with any of the maximum rates set forth on Exhibit A, or, in his discretion, may refer such approval to the City Council. 24.6 Discretionary Adjustments Contractor may request an adjustment to rates at reasonable times other than as set forth in Section 24.3 for unusual changes in the cost of providing service under this Agreement. For each request for an adjustment to the maximum rates brought pursuant to this Section Contractor shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to City with support for assumptions made by Contractor in preparing the estimate. City shall review the Contractor's request and, in the City Council's sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment. City may consider increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. Contractor may not request an extraordinary increase in the maximum rates as a result of: changes in fees or taxes 384/015610-0089 787054 08 805/11107 -61- such as Social Security, disability or income tax; changes in the market value of Recyclables or processing costs for Recyclables or green waste; inaccurate estimates by the Contractor of its cost of operations; or costs of compliance with South Coast Air Quality Management District and Air Resource Board rules and standards for Collection Vehicles. 24.7 Grants From time to time, Federal, State or local agencies including the City may provide to Contractor grants to assist in financing qualified programs provided by Contractor in the City (including, without limitation, grants for diversion programs and related equipment, altemative fuel vehicles and equipment, and Household Hazardous Waste Collection and Disposal.) Contractor shall notify City upon receipt of any such grant funds that may be used to fund services provided pursuant to the terms of this Agreement. With the exception of grants already received by Contractor as of the Effective Date, and grants for either Household Hazardous Waste Collection and Disposal or Collection Vehicles, any funds received through grants for services in the City are intended to benefit City and its residents and businesses, and in essence are held by Contractor in trust on behalf of City. Accordingly, Contractor agrees that the total amount of compensation it receives from Customers hereunder, may be reduced by the amount of any such grant, unless the grant is used to pay for services in City. The City Council shall determine whether the reduction in Contractor's compensation shall be: (1) passed through to Customers designated by City as a reduction to maximum rates; (2) as an offset to the next increase to maximum rates requested by Contractor; (3) paid to City for use as City directs; or, (4) applied in any combination of (1) through (3). SECTION 25. IDENTIFICATION OF CONTRACTOR Contractor has agreed to use the name "Burrtec Waste and Recycling Services, LLC" to identify itself to the public as the specific organization that shall provide all services under this Agreement. Unless otherwise approved in writing by City, this name shall be used for all correspondence, billing statements, directory listings, references, signs, and vehicle and Bin identification. SECTION 26. CITY'S FLOW CONTROL OPTION As of the Effective Date, and unless and until otherwise directed by City, Contractor may deliver Solid Waste Collected hereunder to any facility it deems appropriate to meet the requirements of this Agreement. It shall, however, notify City of all such facilities that it is utilizing. City shall have the option to direct and/or approve which transfer station, recycling facility, transformation facility, landfill, or other facility Contractor shall use to retain, process, recycle and dispose of Solid Waste generated within the Franchise Area. Contractor expressly consents to City's ability to direct the location for disposal of Solid Waste hereunder, and waives any and all rights to challenge City's ability to do so, including without limitation any rights under the Commerce Clause of the United States Constitution. 384/015610-0089 787054.08 a05/11,07 -62- SECTION 27. INDEMNIFICATION 27.1 General (A) Contractor hereby agrees to and shall indemnify and hold harmless City, its elected and appointed boards, commissions, officers, employees, and agents (collectively the indemnities) from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or equity of any and every kind and description (including, but not limited to, injury to and death of any Person and damage to property, or for contribution or indemnity claimed by third parties) arising out of, resulting from, and/or in any way connected with this Agreement including: (1) the negligence or willful misconduct of Contractor, its officers, employees, agents, Companies and/or subcontractors in performing services under this Agreement; (2) the failure of Contractor, its officers, employees, agents, Companies and/or subcontractors to comply in all respects with the provisions of this Agreement, applicable laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or applicable permits and licenses; (3) the acts of Contractor, its officers, employees, agents, Companies and/or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, the Environmental Laws); and (4) any challenge to the award of, or any provisions of this Agreement (including any claim that the application of any provision hereof violates any provision of the California Constitution.) The foregoing indemnity and hold harmless provisions shall apply regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death or damage is also caused in part by any of the indemnities negligence, but shall not extend to matters resulting from the indemnities sole negligence, or willful misconduct. Contractor further agrees to and shall, upon demand of City, at Contractor's sole cost and expense, defend (with attorneys acceptable to City) City, its elected and appointed boards and commissions, officers, employees, and agents against any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi-judicial or administrative in nature, arising or resulting from any of the aforementioned events, and to reimburse the City for any and all costs and expenses City incurs in providing any such defense, either before, during or after the time Contractor elects to provide such defense, including any and all costs incurred in overseeing any defense to be provided herein by Contractor. (B) Contractor, upon demand of the City, made by and through the City Attorney, shall protect City and appear in and defend the City and its elected officials, officers, employees and agents, in any claims or actions by third parties, whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over the definitions of "Solid Waste" or "Recyclable Material," the scope of the rights granted herein, conflicts between the rights granted herein and rights asserted by other Persons, or the limits of City's authority with respect to the grant of licenses, or agreements, exclusive or otherwise, asserting rights under the Dormant Commerce Clause or any other federal or state laws to provide Solid Waste Handling Services in the City. (C) The provisions of this Section shall not terminate or expire, shall be given the broadest possible interpretation and shall survive the expiration or earlier termination of this Agreement. 384/015610-0089 787054 08 a05/11 /07 -63- 27.2 Hazardous Substances Indemnification (A) Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City) reimburse, indemnify, and hold City and its past and present officers, council members, employees, consultants and agents (hereinafter "Indemnified Parties") harmless from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attomeys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: (1) results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnified Party is liable, responsible or in anyway obligated to investigate, assess, monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or (2) relates to material collected, transported, recycled, processed, treated or disposed of by Contractor. (B) Contractor's obligations pursuant to this Section shall apply, without limitation, to: (1) any Claims brought pursuant to or based on the provisions of the Environmental Laws, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., the Carpenter -Presley - Tanner Hazardous Substances Account Act (California Health & Safety Code Sections 25300 et seq.), the California Hazardous Waste Control Laws (California Health and Safety Code Sections 25100 et seq.), the California Porter -Cologne Act (California Water Code Section 13000 et seq.), and any and all amendments and regulations thereto, and any other Federal, State, regional or local environmental statutory or regulatory provision; (2) any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation by Contractor of any facility; (3) any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, disposal, processing or use of any materials recovered by Contractor; (4) any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. 384.015610-0089 78705408 805,11,07 -64- (C) The foregoing indemnity and defense obligations shall apply irrespective of the . negligence or willful misconduct of Contractor or any Affiliate of Contractor. (D) For purposes of this Agreement, the term "Hazardous Contaminant" shall mean any "hazardous material," as that term is defined under California Health & Safety Code Section 25501(o); any "hazardous substance," as that term is defined herein or under California Health & Safety Code Sections 25281(h), 25501(p), 25501.1 and under Title 42, Section 9601(14) of the United States Code; any "hazardous waste," as that term is defined herein and under Title 42, Section 6903(5) of the United States Code and under California Health & Safety Code Section 25501(q); any chemical which the Governor has identified as a chemical known to the State to cause cancer or reproductive toxicity pursuant to California Health & Safety Code Section 25249.8; any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos -containing material. The term "Hazardous Contaminant" shall also include any and all amendments to the above -referenced statutory and regulatory provisions made before or after the date of execution of this Agreement. (E) The provisions of this Section shall not terminate or expire, shall be given the broadest possible interpretation and shall survive the expiration or earlier termination of this Agreement. SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS 28.1 Maintenance and Inspection of Records Contractor shall maintain all records relating to the services provided hereunder, including but not limited to Customer lists, billing records, accounts payable records, maps, AB 939 compliance records, records reflecting the number of refuse, recycling and green waste routes and rout hours by service category (residential, commercial, roll -off, and special services), records demonstrating facilities, equipment and personnel used to perform services, records reflecting the number of refuse, recycling and green waste containers in service by frequency of collection for each customer group (residential, commercial, roll -off); records reflecting the number of roll -off box pulls, and such other documents and materials which reasonably relate to Contractor's compliance with the provisions of this Agreement (the "Records"), for the full Term of this Agreement, and an additional period thereafter of not less than three (3) years, or any longer period required by law. City shall have the right, upon five (5) business days advance notice, to inspect the Records. Such Records shall be made available to City at Contractor's regular place of business, but in no event outside the County of Riverside. 28.2 CERCLA Defense Records City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of concern. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not 384015610-0089 787054 08 a05/11007 -65- landfilled) for not less than five (5) years following the termination of this Agreement, and agrees to notify City's Risk Manager and City Attomey before destroying such records thereafter. At any time, including after the expiration of the Term hereof, Contractor shall provide copies of such records to City. The requirements of this Section shall survive the expiration of the Term of this Agreement. 28.3 Audits 28.3.1 Annual Examination of Services Every year Contractor shall fund the cost of an independent audit by a Certified Public Accounting firm of all accounts in City for each category of Customers serviced By Contractor. The annual audit shall be completed and provided to City within ninety (90) days following June 30th each year during the Term commencing in 2008. The audit shall at a minimum include, but not be limited to, an examination of all Gross Receipts and Franchise Fees paid thereon. 28.3.2 Discretionary Audits In addition to the annual audits to be performed by Contractor, City may request Contractor to make any or all Records available to an independent auditor or examiner, to be selected by the City, at any time for auditing and examination purposes (a "Discretionary Audit"). City shall bear the cost of any Discretionary Audit except as otherwise provided herein. Should any Discretionary Audit reveal an underpayment of any Franchise Fee required pursuant to this Agreement, the amount of such underpayment shall become due and payable to City not later than fifteen (15) days after written notice of such underpayment is sent to Contractor by City, complete with any additional late charges as set forth herein. If a Discretionary Audit reveals inaccuracies or inconsistencies in more than five percent (5%) of all Customer accounts, either with the Contractor's operations or billing systems, or an underpayment of Franchise Fees of more than three percent (3%), Contractor shall bear the entire cost of such Discretionary Audit. 28.3.3 Route Audit Contractor shall complete an audit at its expense of its Collection routes for all Customers at such times as may be requested by City. The timing of such audits is at the City's discretion and may be required to be timed with the issuance of a request for proposals for a new agreement. The route audit, at minimum, shall consist of an independent physical observation by Person(s) other than the route driver or route supervisor of each Customer in the City. The route audit shall include, as a minimum, the following information for each account: • Route Number; • Truck Number; • Account Name; • Account Number; 384,015610-0089 787054 08 a0511 I;07 -66- • Account Service Address; • Service Level per Billing System (quantity, size, frequency); • Service Level per Routing System; • Observed Containers (quantity, type and size); • Bin condition; • Proper signage; and, • Graffiti. Within thirty (30) days after the completion of the route audit, Contractor shall submit to City a report summarizing the results thereof which shall include: • Identification of the routes; • Truck numbers; • Number of accounts, by route and in total; • Types of exceptions observed; • Number of exceptions by type; • Total monthly Billing, pre -audit; • Total monthly Billing, post -audit (subsequent to corrections of identified exceptions); • Percentage of the number of accounts with errors to the total number of accounts served; • Percentage of the "net" change in monthly Billing as a result of the audit to the total pre -audit monthly Billing; and, The report shall include a description of the procedures followed to complete the audit, and shall include the names and titles of those supervising the route audits and the name and titles of those performing the observations. Additionally, the report shall include a description of the pre -audit training of the route auditors, particularly if temporary personnel are used. The report shall also include a description of the changes and Contractor's plans to resolve any exceptions. The results of the audit shall be available for review by the City or its representative. 384/015610-0089 787054 08 h05/11/07 -67- SECTION 29. TRANSITION OBLIGATIONS At the end of the Term, or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent solid waste enterprise it designates to assure a smooth transition of services. Contractor's cooperation shall include, but not be limited to, providing route lists, billing information and other operating records needed to service all premises covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. Contractor shall provide any new solid waste enterprise with all keys, security codes and remote controls used to access garages, gates and bin enclosures. Contractor shall be responsible for coordinating transfer immediately after its final collection activities, so as to not disrupt services. Contractor shall provide City with detailed rout sheets containing service names and addresses, billing names and addresses, monthly rate and service levels (number and size of containers and pickup days) at least 90 days prior to the transition date, provide an updated list two weeks before the transition, and a final updated list with any changes the day before the transition. Contractor shall provide means of access to the new solid waste enterprise at least one full business day prior to its first day of collection, and within sufficient time so as to not impede in any way the new solid waste enterprise from easily servicing all containers. SECTION 30. GENERAL PROVISIONS 30.1 Force Mai eure Contractor shall not be in default under this Agreement in the event that its ability to provide Solid Waste Handling Services or Temporary Services, in compliance with its obligation to do so hereunder, is temporarily interrupted or discontinued for any of the following reasons: riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such as floods, earthquakes, landslides, and fires, or "other catastrophic events" which are beyond the reasonable control of Contractor. The term "other catastrophic events" does not include: (i) the financial inability of Contractor to perform; (ii) failure of Contractor to obtain any necessary permits or licenses from other governmental agencies; (iii) the failure to obtain the right, or the loss of the right, to use the facilities of any public utility where such failure is due in substantial part to the acts or omissions of Contractor; or (iv) strikes, lockouts, and other labor disturbances. 30.2 Independent Contractor Contractor is an independent contractor and not an officer, agent, servant, or employee of City. Contractor is solely responsible for the acts and omissions of its officers, agents, employees, and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Contractor. Neither Contractor nor its officers, employees, agents, or subcontractors shall obtain any rights to retirement or other benefits which accrue to City employees. 384i015610-0089 787054.08 a05/I1/07' -68- 30.3 Pavement Damage Contractor shall be responsible for the cost of repair of any extraordinary damage to the public streets located within the City resulting from providing the services required hereunder. 30.4 Property Damage Any physical damage caused by the negligent or willful acts or omissions of employees, agents, or subcontractors of Contractor to private or public property shall be promptly repaired or replaced at Contractor's expense. 30.5 Right of Entry Contractor shall not have the right, until Contractor receives permission from the property owner, to enter or drive on any private street, court, place, easement, or other private property for the purpose of providing Temporary Services and/or Solid Waste Handling Services pursuant to this Agreement. 30.6 Law to Govern; Venue The laws of the State of California shall govern this Agreement. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Riverside. In the event of litigation in a United States District Court, exclusive venue shall lie in the Central District of California. 30.7 Amendment This Agreement is intended to carry out City's obligations to comply with the provisions of AB 939, as implemented by regulations of the California Integrated Waste Management Board ("Regulations"), as they from time to time may be amended. In the event that AB 939 or other state or federal laws or regulations enacted after this Agreement has been enacted, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. Except as otherwise expressly stated herein, no other amendment of this Agreement shall be valid unless in writing duly executed by the parties. 30.8 Notices All notices required or permitted to be given under this franchise shall be in writing and shall be personally delivered or sent by telecopier (fax), or United States certified mail, postage prepaid, return receipt requested, and addressed as follows: To City: 384015610-0089 787054 08 605/11/07 City of La Quinta Attn: City Manager 78-495 Calle Tampico La Quinta, CA 92253 Fax: (760) 777-7101 -69- To Contractor: Burrtec Waste and Recycling Services, LLC. Attn: Chief Executive Officer 9890 Cherry Ave Fontana, California 92335 Phone: (909) 822-2397; Fax: (909) 355-7158 or to such other address or telecopier number as either party may from time to time designate by notice to the other given in accordance with this Section. Notice shall be deemed given on the date served if served personally or by Fax between the hours of 8:00 a.m. to 5:00 p.m. on any regular business day for City's business offices. If served during other times, Faxed notice shall be deemed given the first business day following the day upon which it is so Faxed. If mailed, notice shall be deemed given three (3) business days from the date such notice is deposited in the United States mail. 30.9 Guarantee of Contractor's Performance Pursuant to a guarantee in substantially the form attached as Exhibit E, Burrtec Waste Group, Inc. ("Guarantor") has agreed to guarantee Contractor's performance of its obligations pursuant to this Agreement, and Guarantor shall provide a fully executed copy of the Guarantee required by this provision concurrently with Contractor's delivery of this Agreement to City. 30.10 Savings Clause If any non -material provision of this Agreement is for any reason held to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the validity and enforceability of any of the remaining provisions of this Agreement. 30.11 Exhibits Incorporated Exhibits A through E are attached to and incorporated in this Agreement by reference. 30.12 Joint Drafting This Agreement shall be interpreted as if it were drafted jointly by the parties to the Agreement. 30.13 Attorneys' Fees and Litigation Costs In the event either party brings any action or proceeding to enforce or interpret the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys' fees and other litigation costs and expenses, including without limitation expert witness fees, consultant fees and costs. Without limiting its scope in any way, this provision is expressly intended to, and shall, apply to fees and costs incurred in any appeal. 384/015610-0089 787054.08 105/1Ii07 -70- 30.14 Citv's Authorized Agent Notwithstanding anything contained herein to the contrary, and excepting amendments hereto and such actions set forth herein specifically calling for City Council action or approval, the City Manager is designated as the City's authorized agent to take any action with regard to any matter, or enforce any right, set forth herein requiring action by the City. 30.15 Integrated Agreement This Agreement contains the entire integrated agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations, promises, proposals, and agreements between the Parties, whether written or oral. The Parties acknowledges this document has been executed with the consent and upon the advice of counsel. Each of the Parties acknowledges that no party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument. 30.16 Section Headings The section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions. 384015610-0089 787054 OR 605'11/07 -71- 30.17 Compliance with Law In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all applicable laws and regulations of the United States, the State of California, the provisions of the Municipal Code, and any federal, state, regional or local administrative and regulatory agencies, now in force and as they may be enacted, issued or amended. "City" A QUINTA By:/ VG�rn—mss o C i Thomas Genovese, City Manager ino, City Clerk APPROVED AS T By: // 1 Katherine Jen City Attorney 384i015610-0089 787054 08 a05/11,07 "Contractor" BURR SER By: its: geS7c6171— YCLING _72_ EXHIBIT A MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES: ATTACHED 384'015610-0089 787054 08 a05/11/07 EXHIBIT B CONTAINER/BIN SPECIFICATIONS • Contractor shall provide Container Specifications to City for approval. All Containers utilized by Contractor shall perform to the reasonable satisfaction of the City Manager in order to be utilized in City. • Each Refuse, Green Waste and Recycling Cart utilized by Contractor shall be labeled on the inside, or hot -stamped, in English and Spanish and with graphics so as to: (1) explain/depict the items for which it is designated to Collect, and (2) identify the name and phone number of Contractor. • The body of Refuse Carts shall be a uniform maroon color, Recycling Carts shall be a uniform grey color and Green Waste Carts shall be a uniform green color. • While Contractor may continue to utilize Carts which were distributed to Customers under the Prior Agreements, all labels on Cart's distributed pursuant to the Prior Agreements and bearing the name of any solid waste enterprise other than Contractor shall be replaced as of the Effective Date so as to identify Contractor as required herein. • Any Cart distributed by Contractor in City after the Effective Date shall be newly manufactured and have never previously been used for the Collection of Solid Waste; excepting that Carts which have been refurbished such that they are "like new" may be used so long as their condition is satisfactory as determined by the City Manager. • Bins shall have lids that close securely and which are capable of being locked. Locks shall be provided by Contractor upon request at rates that do not exceed those set forth in Exhibit A. 384;015610-0089 787054.08 a05/11/07 -1- EXHIBIT C SAMPLE LISTING OF CITY SPONSORED EVENTS (This list is intended only as a sample of City sponsored events, and is not intended to be all inclusive or to limit Contractor's obligations in any way.) February "Concert in the Park" Civic Center Campus March "La Quinta Arts Festival" Civic Center Campus April "Community Picnic and Birthday Bash" Fritz Burns Park April "Easter Egg Hunt" La Quinta Park October "Halloween Carnival" Boys and Girls Club December `Breakfast With Santa" Senior Center December "Christmas Tree Lighting" Civic Center Campus 3841015610-0089 787054 08 a05/11/07 -1- EXHIBIT D CITY FACILITIES AND PARKS LIST (This list is intended only as a sample of existing City facilities, it is not intended to be all inclusive or to limit Contractor's obligations in any way.) City Hall City Library City Senior Center Fire Stations (3 currently) Police Sub -Station in Village City Museum City Corporate Yard SilverRock Golf Course (including without limitation green waste and refuse removal at: the temporary clubhouse and maintenance building and the eventual permanent clubhouse, the pro shop, such green waste collection areas as may be established on site„ and annual green waste removal related to over seeding and "scalping") Fritz Burns Pool Building La Quinta Sports Complex Fritz Bums Park Adams Park La Quinta Park (Westward Ho/Adams Street) Bear Creek Trail 384/015610-0089 787054 08 605/11/07 -2- EXHIBIT E CORPORATE GUARANTY THIS GUARANTY (the "Guaranty) is given as of the 151 day of July, 2007, and is made with reference to the following facts and circumstances: A. Burrtec Waste and Recycling Services, Inc., hereinafter ("Contractor") is an affiliate of Burrtec Waste Group, Inc. (Guarantor). B. Contractor has assumed the obligations of Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert ("Waste Management") in that certain agreement with the City of La Quinta ("City") dated January 1, 2004 and entitled "Agreement between the City of La Quinta and Waste Management of California, Inc., a California Corporation dba Waste Management of the Desert for Solid Waste Handling Services"(the "Waste Management Franchise"). C. Contractor has additionally entered into an agreement with City dated July 1, 2006 and entitled "Agreement between the City of La Quinta and Burrtec Waste and Recycling Services, LLC, for Solid Waste Handling Services"" (the "2006 Burrtec Franchise"). D. Contactor has now entered a new franchise agreement with the City with an Effective Date of July 1, 2007, entitled "Agreement Between The City of La Quinta and Burrtec Waste and Recycling Services, LLC, for Solid Waste Handling Services" (the "2007 Burrtec Franchise"). E It was a requirement of the 2006 Burrtec Franchise, and a condition to the City approving the transfer and assignment of the Waste Management Franchise to Contractor, that Guarantor guaranty Contractor's performance of the 2006 Burrtec Franchise, including any ongoing obligations in the Waste Management Franchise assumed by Contractor. F. It is additionally a requirement of the 2007 Burrtec Franchise, that Guarantor guaranty Contractor's performance of the 2007 Burrtec Franchise, including any ongoing obligations in the Waste Management Franchise assumed by Contractor, and any ongoing obligations under the 2006 Burrtec Franchise. G. Guarantor is providing this Guaranty to induce the City to approve the 2007 Burrtec Franchise. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the 2007 Burrtec Franchise. Guarantor hereby irrevocably and unconditionally guarantees to the City the complete and timely performance, satisfaction and observation by Contractor of each and every term and condition of the 2007 Burrtec Franchise which Contractor is required to perform, satisfy or observe. In the event that Contractor fails to 384015610-0089 787054 08 905/11/07 -3- perform, satisfy or observe any of the terms and conditions of the 2007 Burrtec Franchise Guarantor will promptly and fully perform, satisfy or observe them in the place of the Contractor (including by causing the services required of Contractor to be performed by a Solid Waste Enterprise acceptable to City). Guarantor hereby guarantees payment to the City of any damages, costs or expenses which might become recoverable by the City from Contractor due to its breach of the 2007 Burrtec Franchise. Included in the forgoing Guarantee, is a guarantee by Guarantor of any continuing obligations assumed by Contractor as part of the Waste Management Franchise, and any ongoing obligations of Contractor under the 2006 Burrtec Franchise. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and, with respect to any payment obligation of Contractor under the 2007 Burrtec Franchise, shall constitute a guarantee of payment and not of collection, and are not conditional upon the genuineness, validity, regularity or enforceability of the 2007 Burrtec Franchise. In any action brought against the Guarantor to enforce, or for damages for breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that would be available to the Contractor in an action to enforce, or for damages for breach of the 2007 Burrtec Franchise (other than discharge of, or stay of proceedings to enforce, obligations under the 2007 Burrtec Franchise under bankruptcy law). 3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Contractor; (2) the actual or purported rejection by a trustee in bankruptcy of the 2007 Burrtec Franchise, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the 2007 Burrtec Franchise; (3) any waiver with respect to any of the obligations of the 2007 Burrtec Franchise guaranteed hereunder or the impairment or suspension of any of the City's rights or remedies against the Contractor; or (4) any merger or consolidation of the Contractor with any other corporation, or any sale, lease or transfer of any or all the assets of the Contractor. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under California Civil Code Section 2846, 2849, and 2850, including without limitation, the right to require the City to (a) proceed against Contractor, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Contractor or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in it sole discretion any or all rights and remedies available to it against Contractor or any other guarantor or pledgor without impairing the City's rights and remedies in enforcing this Guaranty. 384:015610-0089 787054 08 80511,07 The Guarantor hereby waives and agrees to waive at any future time at the request of the City to the extent now or then permitted by applicable law, any and all rights which the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations under, or to terminate, cancel, quit or surrender this Guaranty. The Guarantor hereby expressly waives, diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non- payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Contractor prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the 2007 Burrtec Franchise have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by the City of any performance bond or other collateral to assure the performance of Contractor's obligations under the 2007 Burrtec Franchise. Guarantor shall not be released of its obligations hereunder as long as there is any claim by the City against Contractor arising out of the 2007 Burrtec Franchise based on Contractor's failure to perform which has not been settled or discharged. 5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty, Guarantor agrees in the event of Guaranty's breach of its obligations including to pay reasonable attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder. 7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in, and pursuant to the laws of, the State of California and shall be governed and construed in accordance with the laws of California without regard to its conflicts of laws, rules for all purposes including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal jurisdiction over it by such courts, with venue resting in Riverside County, California. 384015610-0089 787054 08 8053107 -5- 8. Severabilitv. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will have no effect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. 9. Binding On Successors. This Guaranty shall inure to the benefit of the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Article of Incorporation and By -Laws, and that the person signing this Guaranty on its behalf has the authority to do so. 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: To the City: City Manager City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Fax: (760) 777-7101 with a copy to the City's Legal Counsel at the same address. Guarantor: Burrtec Waste B To the Guarantor: Burrtec Waste Group, Inc 9890 Cherry Ave. Fontana, California 92335 Attn: Chief Executive Officer Fax: (909) 355-7158 (title) 384;015610-0089 787054 08 a0911/07 res €N -6- CITY OF LA QUINTA Maximum Rates For Single Family Dwellinas- Monthle Effective July 1, 2007 Single Family Dwellings Service Component Disposal Component Total Automated or Manual Collection - Tax Roll Billing $ 8.43 $ 2.89 $ 11.32 Automated or Manual Collection - Direct Billing $ 9.71 $ 2.89 $ 12.60 Additional Refuse Cart $ 5.96 $ - $ 5.96 Cart Replacement (Per Secton 8.1.8 (F)) - one time fee $ 50.00 $ - $ 50.00 Backyard Service Basic Additional Charge for Backyard Service $ 5.63 $ - $ 5.63 Charge for Each Additional Cart/Container Per Section 8.2.3 $ 5.63 $ - $ 5.63 Surchage for HOA's Desiring Monday Service 10% of Service Component `The maximum rates on this sheet shall apply to all Customers receiving Automated Service utilizing Refuse Carts, including specifically such Customers (if any) at Commercial Premises. CITY OF LA QUINTA Maximum Rates for Customers Receiving Service in Bins - Commercial or Residential Premises Effective July 1, 2007 2 Yard Bin Service Proposed Rates Pickups Per Week Service Component Mosel Component Monthly Customer Rate 1 $ 57.47 $ 21.79 $ 79.26 2 $ 101.11 $ 41.54 $ 142.65 3 $ 142.79 $ 61.41 $ 204.20 4 $ 184.26 $ 81.11 $ 265.37 5 $ 225.81 $ 96.84 $ 322.65 6 $ 267.63 $ 120.48 $ 388.11 Extra Empty* $ 29.61 $ 5.45 $ 35.06 3 Yard Bin Service Proposed Rates Pickups Per Week Service Component Disosal Component Monthly Customer Rate 1 $ 73.08 $ 31.21 $ 104.29 2 $ 127.40 $ 60.25 $ 187.65 3 $ 180.68 $ 88.49 $ 269.17 4 $ 230.42 $ 116.64 $ 347.06 5 $ 282.93 $ 145.44 $ 428.37 6 $ 333.88 $ 173.42 $ 507.30 Extra Empty* $ 40.35 $ 7.80 $ 48.15 4 Yard Bin Service Proposed Rates Pickups Per Week Service Component Disosal Component Monthly Customer Rate 1 $ 99.74 $ 42.04 $ 141.78 2 $ 159.39 $ 79.09 $ 238.48 3 $ 221.01 $ 115.99 $ 337.00 4 $ 282.80 $ 153.31 $ 436.11 5 $ 341.67 $ 190.10 $ 531.77 6 $ 399.40 $ 226.72 $ 626.12 Extra Empty* $ 54.66 $ 10.51 $ 65.17 6 Yard Bin Service Proposed Rates Pickups Per Week Service Component Disosal Component Monthly Customer Rate 1 $ 149.62 $ 62.53 $ 212.15 2 $ 239.09 $ 120.04 $ 359.13 3 $ 331.44 $ 176.13 $ 507.57 4 $ 424.46 $ 232.24 $ 656.70 5 $ 512.52 $ 289.35 $ 801.87 6 $ 599.14 $ 344.88 $ 944.02 Extra Empty* $ 81.57 $ 15.63 $ 97.20 *Meaning occasional calls for extra service, or "emptying" of Bin Customers desiring a locking Bin may be charged a one time chage of up to $57.44 to add a locking bar to their Bin, and are subject to a charge not to exceed $22.10 each time the locking bar needs replacement. The Service Component for Customers receiving services less than 6 times per week and who desire service on Saturday may be increased by an amount to not to exceed $23.88. The montly Service Component for Customers who keep Bins in locked enclosures may be increased by an amount not to exceed $16.63 The monthly Service Component for Customers who keep Bins in a location requiring Contractor to move them more than 20 feet for collection purposes may be increased by an amount not to exceed $29.44 CITY OF LA QUINTA Maximum Rates for Service In Rolloff Boxes and Temporary Service Effective July 1, 2007 Maximum Rolloff Box Rate is the Total of dm Service Component and Disposal Component Service Component: Rolloff Box Size Standard 20 yard box $102.73 per pull plus $13.10/ton of Solid Waste Collected Standard 30 yard box $141.27 per pull plus $13.10/ton of Solid Waste Collected Standard 40 yard box $165.38 per pull plus $13.10/ton of Solid Waste Collected The Service Component for Rolloff Compactors is three times the per pull rate for the same size Rolloff Box, plus $13.10 per ton of Solid Waste Collected (i.e., the Service Component for a 40 yd. Compactor is 3 x 165.38 = 496.14 + $13.10/ton.) Disposal Component: Acutal Amount Charged to Contractor for Disposal TEMPORARY SERVICE USING BINS Temporary Service utilizing a 3yd Bin is subject to a maximum rate, comprised only of a Service Component, of $105.90 per servicing by Contractor Temporary Service utilizing a 4yd Bin is subject to a maximum rate, comprised only of a Service Component, of $116.08 per servicing by Contractor Temporary Service Delivery Charge Bins and Rolloff Boxes used for Temporary Services are subject to a delivery charge of $18.10 CITY OF LA QUINTA Maximum Service Component/Rate For Miscellaneous Charges Effective July 1, 2007 New Start Fee $ 6.40 Re -Start Fee $ 16.79 Extra Trip Fee - Rolloff Boxes only $ 51.44 Retumed check $ 21.17 Bulky Item Service Residential: in excess of 4 items or non -regular collection day $15.00/item Commercial $50.00/item FIRST AMENDMENT TO SOLID WASTE HANDLING AGREEMENT THIS FIRST AMENDMENT ("Amendment") to the agreement between the City of La Quinta, a charter city and municipal corporation ("City") and Burrtec Waste and Recycling Services, LLC ("Burrtec and/or Contractor") for Solid Waste Handling Services (the "Agreement"), collectively referred to herein as the "Parties," is made and entered into this 19th day of February, 2008. RECITALS A. City and Contractor entered the Agreement, effective July 1, 2007. Prior to entering the Agreement, Contractor had previously been assigned and assumed a franchise agreement for solid waste handling services in City that had been granted to Waste Management of California, Inc (the "Prior Agreement"). B. In approximately 1984 City began billing for single family residential solid waste handling services on the County Assessor's tax rolls on behalf of the company holding a franchise for such purposes. Due to timing constraints and related issues, this arrangement resulted in Customers at residential premises having made six months of advance payment for solid waste handling services. C. The Prior Agreement contemplated that in the final year of its term (July 1, 2007 to June 30, 2008) the City's solid waste handling services provider would only receive payment for six months worth of the amounts collected for such services on the tax rolls in order to make up for the advance payments previously made by residents. F. The Agreement carried forward the practice of residents making six months worth of advance payments, with the expectation of those funds being "repaid" or "credited" to residents in the final year of its term (July 1, 2015 to June 30, 2016). G. The Parties now desire to cause the "repayment" or "crediting" of residents for advance payments to occur in a fashion that generally is consistent with the timing contemplated by the Prior Agreement, rather than causing residents to wait until the end of the term of the Agreement to be so credited. Towards this end, the Parties have agreed that Contractor shall provide services for the entirety of the 2008-2009 fiscal year in the manner contemplated by the Agreement, but, with regards to single family residential Customers billed on the tax rolls, shall only cause costs for a six month period to be placed on the tax rolls for collection; excepting residential Customers for which it directly refunds advance payments made during the 2007-2008 fiscal year. H. In order to carry out the Parties' desires as set forth above, the Parties hereby agree to the provisions of this Amendment as more fully set forth below. Page 1 COVENANTS Section 1. Recitals. The Parties agree that the foregoing Recitals shall be and are hereby fully incorporated into this agreement as if fully restated herein. Section 2. Adjustment of Costs for the 2008-2009 Fiscal Year. In order to "credit" or "repay" residential Customers for advance payments that have been made to, and received by Burrtec as a result of tax roll billing, the procedure set forth in this Section shall apply to the collection of costs for solid waste collection services placed on the tax rolls for the 2008-2009 fiscal year. First, the maximum monthly rates for services may be adjusted for the 2008-2009 fiscal year as set forth in Section 24 of the Agreement. Thereafter, Contractor shall cause the costs due for solid waste handling services (with any adjustments) for a six month period for each residential Customer receiving tax roll billing to be placed on the 2008-2009 tax rolls for such Customers as contemplated by Section 13 of the Agreement. Contractor shall provide services for such Customers for the entirety of the 2008-2009 fiscal year, in the manner set forth in the Agreement, but the foregoing amount shall be the full amount due by each such Customers for such services (i.e., each affected Customer shall only be charged for six months of service, but shall receive twelve months of service.) Section 3. Exception. Certain Customers of new developments in the City were billed directly by Burrtec during the 2007-2008 fiscal year in such a manner as to have made a six month advance payment for services, such that they have a similar circumstance from an accounting standpoint as Customers at pre-existing developments. Burrtec will provide a refund directly to these Customers within 30 days of the effective date of this Amendment. The amount of the refund shall be equal to the amount of the six month advance payment (or any portion thereof) paid by the affected Customers during the 2007-2008 fiscal year. Contractor shall cause the costs due for all solid waste handling services for fiscal year 2008-2009, for any Customer that receives a refund directly from Burrtec in the manner contemplated herein, to be placed on the tax rolls in the manner contemplated by the Agreement (i.e., except as otherwise set forth in the Agreement [such as exceptions for vacancies, and other exceptions], any Customer that receives a refund of its advance payment directly from Burrtec shall receive twelve months worth of services and shall be charged for twelve months of service). Section 4 As of the effective date of this Amendment the Parties are only aware of direct billing by Burrtec during the 2007-2008 fiscal year, in the manner described in Section 3, having occurred with regards to Customers in a development known as Trilogy. Hence, the Parties contemplate that only Customers of Trilogy will receive a direct refund from Burrtec within 30 days as set forth herein. Should other Customers be identified that fit the parameters set forth herein, the City Manager shall determine the proper way to "credit" their accounts Page 2 such that they will either: (i) be directly refunded by Burrtec within 30 days of the City Manager's determination that such a refund should occur and otherwise treated in the same manner as Customers described in Section 3 hereof, or (ii) receive a "credit" for advance payments in the same manner as will generally occur for Customers as set forth in Section 2 hereof. Section 5. Adjustment of Rates for the 2009-2010, and Subsequent Fiscal Years. The provisions of this Amendment relating to placement of costs on the 2008-2009 tax rolls shall have no impact on the billing of costs or adjustments to maximum rates as set forth in the Agreement for subsequent fiscal years. Accordingly, for fiscal year 2009-2010, the maximum rates for monthly services may be adjusted in the manner contemplated by Section 24 of the Agreement, and thereafter placed on the tax rolls in the manner set forth in Section 13 of the Agreement. Section 6. Satisfaction of Obligations. The Parties agree that by implementing the procedures contemplated herein, Contractor will have satisfied the obligations created by Section 15.5 of the Prior Agreement and Section 13.3.1.4 of the Agreement. Specifically, it will have forgone six months of payments for services provided in order to make up for advance payments originally made in or about 1984, and carried forward since that time. Accordingly, no offset of six months of payments shall be made to Contractor by City in the final year of the Term of the Agreement as would otherwise be required by the provisions of Section 15.5 of the Prior Agreement, as carried forward in Section 12.3.1.4 of the Agreement. Section 7. Effectiveness of Agreement. Upon the effectiveness of this Amendment, all provisions of the Agreement, excepting for those expressly amended herein, shall remain unchanged and in full force and effect. (END — SIGNATURE PAGE FOLLOWS) Page 3 IN WITNESS WHEREOF, the Parties hereto have executed this Amendment to be effective as of February 19, 2008. CITY OF LA QUINTA Thomas P. Genovese, City Manager Attest: By: eronica J. tecino, City Clerk Approved as to form: By: Burrt By Its: y Attorney ling Services, LLC ACKNOWLEDGEMENT AND CONSENT BY CORPORATE GUARANTOR A. Burrtec Waste and Recycling Services, Inc., hereinafter ("Contractor") is a an affiliate of Burrtec Waste Group (Guarantor). B. Guarantor has entered a Corporate Guarantee related to Contractor's obligations pursuant to the Agreement, as defined above. C. Guarantor hereby acknowledges and consents to the provisions of the forgoing Amendment, and agrees that its obligations as set forth in the Corporate Guarantee provided as Exh'. 1 to the Agreement shall comply equally to the Amendment set forth . -.ve as if fully restated with respect to said Amendment. Guarantor: Burrtec Wast ro By: Page 4 Tat oi 4 aditsi P.O. Box 1504 LA QUINTA, CALIFORNIA 92247-1504 78-495 CALLE TAMPICO (760) 777-7000 LA QUINTA, CALIFORNIA 92253 FAX (760) 777-7101 June 27, 2008 Mr. Robert Byrd, CGFM Riverside County Auditor -Controller Property Tax Division 4080 Lemon Street, llth Floor Riverside, CA 92502-1326 Re: Placement of Collection of Costs for Solid Waste Handling Services on Tax Rolls (Single -Family Dwellings) Dear Mr. Byrd: Enclosed is a certified copy of Resolution No. 2008-041 adopted by the La Quinta City Council at its regular meeting of June 17, 2008. The City Council requests that the Riverside County Tax Assessor place collection of costs for solid waste handling services at single-family dwellings, on the County's tax rolls for Fiscal Year 2008/2009. Should you have any questions, please contact Mr. Bret Plumlee at (760) 777-7035. Sincerely VERONICA J. M City Clerk Enclosure ECINO, CMC cc: Bret Plumlee, Assistant City Manager/Management Services Frank Orlett, District Manager, Burrtec Waste & Recycling Services, Palm Desert Burrtec Waste & Recycling Services, Chief Executive Officer, Fontana Laith Ezzet, HF&H Consultants RESOLUTION NO. 2008-041 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, REQUESTING THE COUNTY OF RIVERSIDE TO PLACE COLLECTION OF COSTS FOR SOLID WASTE HANDLING SERVICES AT SINGLE FAMILY DWELLINGS ON THE TAX ROLLS. WHEREAS, the City Council of the City of La Quinta (City) wishes to ensure the uniform collection of rates for solid waste handling services at single family dwellings by placing collection thereof on the County of Riverside Tax Assessor's Tax Rolls; and WHEREAS, the attached Exhibit "A" sets forth the maximum rates that may be collected for solid waste handling services at single family dwellings in City pursuant to a franchise agreement with an Effective Date of July 1, 2007, entitled "Agreement Between The City of La Quinta and Burrtec Waste and Recycling Services, LLC, for Solid Waste Handling Services"; and WHEREAS, the City Council of City has determined that applicable provisions, if any, of the provisions of Proposition 218 (Articles XIII C and XIII D of the California Constitution) have been satisfied in connection with the matters addressed by this Resolution; and WHEREAS, on February 19, 2008, the City Council approved an Amendment to the Exclusive Franchise Agreement for Solid Waste Handling Service to allow for a 50% reduction in residential tax roll billing for FY 2009 to reconcile advance payment for solid waste services by tax roll billed residents (as defined in First Amendment to the Solid Waste Handling Agreement, 2008). NOW, THEREFORE, BE IT RESOLVED, DETERMINED, AND ORDERED by the City Council of the City of La Quinta, California as follows: SECTION 1. The City Council hereby requests the Riverside County Tax Assessor to place collection of costs for solid waste handling services at single family dwellings in the City on the County's tax rolls. PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta City Council held on this 17`h day of June, 2008, by the following vote: JAs Resolution No. 2008-041 Residential Waste Fee Schedule Adopted: June 17. 2008 Page 2 AYES: Council Members Henderson, Kirk, Osborne, Sniff, Mayor Adolph NOES: None ABSENT: None ABSTAIN: None ATTEST: VERONICA J/ ONTECINO, CMC, City Clerk City of La Quinta, California (City Seal) APPROVED AS TO FORM: M. KATHE•INE JENS•^7ity Attorne City of La Quinta, California DON ADO LPH,1 11�yor City of La Quinta, California This is to certify that the foregoing is a full, true and correct copy of the original document containing . pages; which is on file in the Office of the City Clerk of the City of La Quinta, California Dated. Veronica J. City Clerk ecino, CMC Resolution No. 2007-083 Waste Collection Costs -Tax Roll Adopted: September 18, 2007 Page 3 CITY OF LA QUINTA REFUSE COLLECTION RATE AND DISPOSAL CHARGE TAX BILLING FY 07/08 — RESIDENTIAL PROPERTY Maximum Rates for Single -Family Dwellings — Monthly* Exhibit "A" Single -Family Dwellings Service Component Disposal Component Total Automated or Manual Collection - Tax Roll Billing $8.43 $2.89 $11.32 Automated or Manual Collection - Direct Billing $9.71 $2.89 $12.60 Additional Refuse Cart - Direct Billing $5.96 $ - $5.96 Cart Replacement (Per Section 8.1.8(F)) - one time fee $50.00 ' $ - $50.00 Backyard Service - Direct Bill Basic Additional Charge for Backyard Service $5.63 $ - $5.63 Charge for Each Additional Cart/Container Per Sec. 8.2.3 $5.63 $ - $5.63 Surcharge for HOA's Desiring Monday Service 10% of Service Component e The maximum rates on this sheet shall apply to all customers receiving Automated Service utilizing Refuse Carts, including specifically such customers (if any) at Commercial Premises. • Any association of homeowners must select identical level of service to be provided. Monday service is to be based on availability of contractor/franchisee to provide necessary equipment and/or personnel. If Monday service is required by the association, a 10% premium will be added to the service component. The level of service may be changed once annually. • Tax roll billing requires 100% mandatory service year-round. • The basic curb rate is charged via tax roll, and the incremental cost is billed directly by contractor. Resolution No. 2008-041 Residential Waste Fee Schedule Adopted: June 17. 2008 Page 3 EXHIBIT "A" CITY OF LA QUINTA REFUSE COLLECTION RATE AND DISPOSAL CHARGE TAX BILLING FY 08/09- RESIDENTIAL PROPERTY Single -Family Dwelling Maximum Monthly Rate Maximum Yearly Rate FY 2008-2009 One -Time Tax Roll Billing Reduction Service Component of Maximum Rate $8.69 Disposal Component of Maximum Rate $3.00 Total Rate $11.69 $140.28 $70.14 Additional Refuse Cart $6.16 $73.92 $36.96 Backyard Service - For first refuse and first recycling carts/containers - For each additional cart/container $5.81 $5.81 $69.72 $69.72 $34.86 $34.86 Surcharge for HOA's Desiring Monday Service 10% of Service Component 50% of surcharge Resolution No. 2009-051 Residential Waste Fee on Tax Rolls Adopted: June 18. 2009 Page 3 CITY OF LA QUINTA REFUSE COLLECTION RATE AND DISPOSAL CHARGE TAX BILLING FY 2009/2010- RESIDENTIAL PROPERTY Exhibit A Single -Family Dwelling Maximum Monthly Rate Maximum Yearly Rate Service Component of Maximum Rate $8.69 Disposal Component of Maximum Rate $3.00 Total Rate $11.69 $140.28 Additional Refuse Cart $6.16 $73.92 Backyard Service - For first refuse and first recycling carts/containers - For each additional cart/container $5.81 $5.81 $69.72 $69.72 Surcharge for HOA's Desiring Monday Service 10% of Service Component City Council Resolution No. 2010-044 Collection of Solid Waste Costs on Tax Rolls (SFD) Adopted: June 15, 2010 Page 3 EXHIBIT A CITY OF LA QUINTA REFUSE COLLECTION RATE AND DISPOSAL CHARGE TAX BILLING FY 10/11- RESIDENTIAL PROPERTY Single -Family Dwelling Maximum Monthly Rate Maximum Yearly Rate Service Component of Maximum Rate $8.76 Disposal Component of Maximum Rate $3.02 Total Rate $11.78 $141.36 Additional Refuse Cart $6.21 $74.52 Backyard Service - For first refuse and first recycling carts/containers - For each additional cart/container $5.86 $5.86 $70.32 $70.32 Surcharge for HOA's Desiring Monday Service 10% of Service Component Tat, 4 Geff 4thit P.O. Box 1504 LA QuiNTA , CALIFORNIA 92247 1504 78-495 CALLE TAMr°rco (760) 777-7000 LA QuINTA, CALIFORNIA 92253 FAX (760) 777-7101 June 27, 2011 Mr. Paul Angulo, CPA, MA Riverside County Auditor -Controller Property Tax Division 4080 Lemon St., 11`" Floor Riverside, CA 92501-1326 Re: City of La Quinta Fund No. 68-2376: Compliance with Proposition 218 Dear Mr. Angulo: The City of La Quinta (City) represents that the rates associated with Property Tax Fund 68-2376 identified on the County Tax Roll as Refuse Service are in compliance with applicable provisions, if any, of Articles XII C and XII D of the California Constitution (Proposition 218). The County Auditor-Controller/County of Riverside has agreed to enter all assessments, charges or taxes for the City upon receipt of such roll on or about August 31, 2011, based. upon such certification. The City shall be solely liable and responsible, and will defend, indemnify and hold the County and the Office of the Auditor -Controller harmless from any liability as a result of claims or claims for refunds and related interest due filed by taxpayers against any assessments, fees, charges or taxes placed on the roll for the City by the County. Enclosed is the Resolution adopted by the City Council on June 21, 2011. If you have any questions or require additional information, please contact Les Johnson, Planning Director, at (760) 777-7071. Sincerely, Thomas P. Genovese City Manager Enclosure ATTEST. ERONICA J.NTECINO, CMC, City Clerk City of La Quinta, California RESOLUTION NO. 2011 - 051 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, REQUESTING THE COUNTY OF RIVERSIDE TO PLACE COLLECTION OF COSTS FOR SOLID WASTE HANDLING SERVICES AT SINGLE FAMILY DWELLINGS ON THE TAX ROLLS WHEREAS, the City Council of the City of La Quinta (City) wishes to ensure the uniform collection of rates for solid waste handling services at single family dwellings by placing collection thereof on the County of Riverside Tax Assessor's Tax Rolls; and WHEREAS, the attached Exhibit A sets forth the maximum rates that may be collected for solid waste handling services at single family dwellings in City pursuant to a franchise agreement with an Effective Date of July 1, 2007, entitled "Agreement Between The City of La Quinta and Burrtec Waste and Recycling Services, LLC, for Solid Waste Handling Services"; and WHEREAS, the City Council of City has determined that applicable provisions, if any, of the provisions of Proposition 218 (Articles XIII C and XIII D of the California Constitution) have been satisfied in connection with the matters addressed by this Resolution; and NOW, THEREFORE, BE IT RESOLVED, DETERMINED, AND ORDERED by the City Council of the City of La Quinta, California as follows: SECTION 1. The City Council hereby requests the Riverside County Tax Assessor to place collection of costs for solid waste handling services at single family dwellings in the City on the County's tax rolls. PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta City Council held on this 21 th day of June, 2011, by the following vote: AYES: Council Members Evans, Franklin, Henderson, Sniff, Mayor Adolph NOES: None ABSENT: None ABSTAIN: None DON ADOLPH, Mor City of La Quinta, California City Council Resolution No. 2011-051 Collection of Solid Waste Handling Service Cost on County Tax Rolls Single Family Dwellings Adopted: June 21, 2011 Page 2 ATTEST: VERONICA Ij4$NTECINO, City Clerk City of La Quinta, California (CITY SEAL) APPROVED AS TO FORM: M. ATHERINE JENSON,"yi'y Attorney City of La Quinta, Califo City Council Resolution No. 2011-051 Collection of Solid Waste Handling Service Cost on County Tax Rolls Single Family Dwellings Adopted: June 21, 2011 Page 3 EXHIBIT A CITY OF LA QUINTA REFUSE COLLECTION RATE AND DISPOSAL CHARGE TAX BILLING FY 11/12- RESIDENTIAL PROPERTY Single -Family Dwelling Maximum Monthly Rate Maximum Yearly Rate Service Component of Maximum Rate $9.00 Disposal Component of Maximum Rate $3.03 Total Rate $12.03 $144.36 Additional Refuse Cart $6.40 $76.80 Backyard Service - For first refuse and first recycling carts/containers - For each additional cart/container $6.04 $6.04 $72.48 $72.48 Surcharge for HOA's Desiring Monday Service 10% of Service Component This is to certify that the foregoing is a full, true and correct copy of the original document containing _.=. pages; which is on file in the Office of the City Clerk of the City of La Ouinta, California Dated: Veronica J. City Clerk tecino, CMC EXHIBIT 1 RESIDENTIAL CUSTOMERS EFFECTIVE JULY 1, 2011 Residential Rates for July 1, 2011 Includes 100% of CPI Increase on Service Component (March 2010 — March 2011) and Transfer Station Tip Fee Increase from $39.04 to $39.16 per ton on Disposal Component (July 2010 —July 2011) Single Family Dwellings Service Component Disposal Component AB 939 Fees Total Monthly Rate' Automated or Manual Collection - Tax Roll Billing $ 8.39 $ 3.03 $ 0.61 $ 12.03 Automated or Manual Collection - Direct Billing $ 9.76 $ 3.03 $ 0.61 $ 13.40 Additional Refuse Cart $ 6.40 �_`a� $ 6.40 Cart Replacement (Per Secton 8.1.8 (F)) - one time fee $ 53.63 } Bwr'r yw $ 53.63 Bulky Item: in excess of 4 items or non -regular collection day** $ 16.09 � vv� „E. a $ 16.09 Backyard Service Basic Additional Charge for Backyard Service $ 6.04 �a-.:*'33' '��( $ 6.04 Charge for Each Additional Cart/Container Per Section 8.2.3 $ 6.04 ;mra $ 6.04 Surchage for HOA's Desiring Monday Service 10% of Service Component *The maximum rates on this sheet shall apply to all customers receiving automated or manual service utilizing refuse carts or cans, including specifically such customers (if any) at commercial premises. " Charged for pickups in excess of four items, or pickup on a non -collection day. Pickup otherwise at no additional charge. 1-1 EXHIBIT 1 Residential Service Component Calculations for July 1, 2011 Includes 100% of CPI Increase on Service Component (March 2010 — March 2011) Single Family Home/Townhouse Condominium/Mobile Home Service Component Approved 2010 Service Component Increase (March 2010 to March 2011) New Service Component Automated or Manual Collection - Tax Roll Billing $8.15 $0.24 $8.39 Automated or Manual Collection - Direct Billing $9.48 $028 $9.76 Additional Refuse Cart $ 6.21 $0.19 $6.40 Cart Replacement (Per Secton 8.1.8 (F)) - one time fee $ 52.07 $1.56 $53.63 Backyard Service Basic Additional Charge for Backyard Service $ 5.86 $0.18 $6.04 Charge for Each Additional Cart/Container Per Section 8.2. $ 5.86 $0.18 $6.04 Surchage for HOA's Desiring Monday Service 10% of Service Component Residential Disposal Component Calculations for July 1, 2011 Includes 100% of Transfer Station Tip Fee Increase from $39.04 to $39.16 per ton on Disposal Component (July 2010 — July 2011) Single Family Home/Townhouse Condominium/Mobile Home Dump Fee, in rates approved 2010 Increase for Transfer Station Fee Increase (July 2010 to July 2011) New Dump Fee Component Automated or Manual Collection - Tax Roll Billing $3.02 $0.01 $3.03 Automated or Manual Collection - Direct Billing $3.02 $0.01 $3.03 1-2 EXHIBIT 2 COMMERCIAL BIN CUSTOMERS EFFECTIVE JULY 1, 2011 Commercial Bin Rates for July 1, 2011 Includes 100% of CPI Increase on Service Component (March 2010 - March 2011) and Transfer Station Tip Fee Increase from $39.04 to $39.16 per ton on Disposal Component (July 2010 -July 2011) 2 Yard Bin Service Proposed Rates $ 57.48 $ 3.88 $ 22.79 $ 84.15 1 2 $ 100.13 $ 7.76 $ 43.43 $ 151.32 3 $ 140.68 $ 11.63 $ 64.22 $ 216.53 4 $ 181.00 $ 15.51 $ 84.81 $ 281.32 5 $ 221.41 $ 19.39 $ 101.26 $ 342.06 6 $ 262.11 $ 23.28 $ 125.98 $ 411.37 Extra Empty* $ 31.76 $ 5.70 $ 37.46 3 Yard Bin Service Proposed Rates $ 72.14 $ c.3f 5.82 .� r .. -::' .... $ 32.64 int., $ ,.'. ..f. ,.. it ;� 110.60 1 2 $ 124.17 $ 11.63 $ 63.00 $ 198.80 3 $ 175.07 $ 17.45 $ 92.52 $ 285.04 4 $ 727.18 $ 23.27 $ 121.% $ 367.41 5 $ 272.29 $ 29.07 $ 152.09 $ 453.45 6 $ 320.70 $ 34.89 $ 181.33 $ 536.92 Extra Empty* $ 43.28 $ 8.15 $ 51.43 4 Yard Bin Service Proposed Rates �.c c ^.w rc sse4_,.,+gE�, .• " ;,. X" 98.66 d $ t "" .' '.e 7.76 s„g a`ie �..:. $ 43.95 ueri $ Tt dt :" 'c 150.37 1 $ 2 $ 154.33 $ 15.51 $ 82.70 $ 252.54 3 $ 212.10 $ 23.27 $ 121.28 $ 356.65 4 $ 270.07 $ 31.01 $ 160.31 $ 461.39 5 $ 324.90 $ 38.76 $ 198.78 $ 562.44 6 $ 378.51 $ 46.51 $ 237.07 $ 662.09 Extra Empty* $ 58.62 $ 10.99 $ 69.61 6 Yard Bin Service Proposed Rates $ 11.63 $ 65.38 $ 225.03 1 $ 148.02 2 $ 231.49 $ 23.27 $ 125.51 $ 380.27 3 $ 318.08 $ 34.89 $ 184.17 $ 537.14 4 $ 405.40 $ 46.51 $ 242.84 $ 694.75 5 $ 487.37 $ 58.14 $ 302.56 $ 848.07 6 $ 567.80 $ 69.78 $ - 360.62 $ 998.20 Extra Empty* $ 87.50 $ 16.34 $ 103.84 *Meaning occasional calls for extra service, or "emptying" of Bin Customers desiring a locking Bin may be charged a one time charge of up to $61.61 to add a locking bar to their Bin, and are subject to a charge not to exceed 523.70 each time the locking bar needs replacement. The Service Component for Customers receiving services less than 6 times per week and who desire service on Saturday may be increased by an amount to not to exceed $25.62. The monthly Service Component for Customers who keep Bins in locked enclosures may be increased by an amount not to exceed $17.84 The monthly Service Component for Customers who keep Bins in a location requiring Contractor to move them more than 20 feet for collection purposes may be increased by an amount not to exceed $31.59. 2-1 EXHIBIT 2 Commercial Bin Service Component Calculations for July 1, 2011 Includes 100% of CPI Increase on Service Component (March 2010 - March 2011) 2 Yard Bin Service 2-2 $ 1.67 $ 57.48 1 $ 55.81 2 $ 97.22 $ 2.91 $ 100.13 3 $ 136.60 $ 4.08 $ 140.68 4 $ 175.75 $ 5.25 $ 181.00 5 $ 214.98 $ 6.43 $ 221.41 6 $ 254.50 $ 7.61 $ 262.11 Extra Empty $ 30.84 $ 0.92 $ 31.76 3 Yard Bin Service Y i42Y tt'2 m M J.. "& �j- 3 ^£ .E} T: 4.:! .. _.. {. tl4" t 4e: .. v H r�ih N4G 2.09 $ , +viii t , 72.14 1 $ 70.05 $ 2 $ 120.57 $ 3.60 $ 124.17 3 $ 169.99 $ 5.08 $ 175.07 4 $ 215.73 $ 6.45 $ 222.18 5 $ 264.39 $ 7.90 $ 272.29 6 $ 311.39 $ 9.31 $ 320.70 Extra Empty $ 42.02 $ 1.26 $ 43 28 4 Yard Bin Service $ 95.80 $ 2.86 $ .. 98.66 1 2 $ 149.85 $ 4.48 $ 154.33 3 $ 205.94 $ 6.16 $ 212.10 4 $ 262.23 $ 7.84 $ 270.07 5 $ 315.47 $ 9.43 $ 324.90 6 $ 367.52 $ 10.99 $ 378.51 Extra Empty $ 56.92 $ 1.70 $ 58.62 6 Yard Bin Service ._~ $ 143.72 $ 4.30 $ t. ; 1lq � 148.02 1 2 $ 224.77 $ 6.72 $ 231.49 3 $ - 308.85 $ 9.23 $ 318.08 4 $ 393.63 $ 11.77 $ 405.40 5 $ 473.23 $ 14.14 $ 487.37 6 $ 551.32 $ 16.48 $ 567.80 Extra Empty $ 84.96 $ 2.54 $ 87.50 2-2 EXHIBIT 2 Commercial Bin Disposal Component Calculations for July 1, 2011 Includes 100% of Transfer Station Tip Fee Increase from $39.04 to $39.16 per ton on Disposal Component (July 2010 -July 2011) 2 Yard Bin Service hs j ¶? d4 • , �@ .}mu (� �d L.l�6� %A�s�41+[i6J1YHfi ?s�a_o rK. ;* f4. vh.FRI: �i 0.07 rt taf $ e t pmiii 22.79 1 $ 22.72 $ 2 $ 4330 $ 0.13 $ 43.43 3 $ 64.02 $ 0.20 $ 64.22 4 $ 84.55 $ 0.26 $ 84.81 5 $ 100.95 $ 0.31 $ ' 101.26 6 $ 125.59 $ 0.39 $ 125.98 Extra Empty $ 5.68 $ 0.02 $ 5.70 3 Yard Bin Service $ 32.54 $ 0.10 $ a 32.64 1 2 $ 62.81 $ 0.19 $ 63.00 3 $ 92.24 $ 0.28 $ 92.52 4 $ 121.59 $ 0.37 $ 121.% 5 $ 151.62 $ 0.47 $ 152.09 6 $ 180.78 $ 0.55 $ 181.33 Extra Empty $ 8.13 $ 0.02 $ 8.15 4 Yard Bin Service 4 R.R "' � ��4. �' fi}4 V'' � 3 � ych. sE xt' �� bi j . `� �� "�rr 43.82 I j 3. G :aJ.` 4 e "� )'iat� $ ��.� E� n° 0.13 Wi :vl� � ..,",ty. $ �✓ w +�Fv I k'"'d39 . i A . 43.95 1 $ 2 $ 82.45 $ 0.25 $ 82.70 3 $ 120.91 $ 0.37 $ 121.28 4 $ 159.82 $ 0.49 $ 160.31 5 $ 198.17 $ 0.61 $ 198.78 6 $ 236.34 $ 0.73 $ 237.07 Extra Empty $ 10.96 $ 0.03 $ 10.99 6 Yard Bin Service $ t ... 0.20 ?u $ 65.38 1 $ 65.18 2 $ 125.13 $ 0.38 $ 125.51 3 $ 183.61 $ 0.56 $ 184.17 4 $ 242.10 $ 0.74 $ 242.84 5 $ 301.63 $ 0.93 $ 302.56 6 $ 359.52 $ 1.10 $ 360.62 Extra Em. $ 16.29 $ 0.05 $ 16.34 2-3 EXHIBIT 3 ROLL -OFF & TEMPORARY CUSTOMERS EFFECTIVE JULY 1, 2011 Roll -off & Temporary Rates for July 1, 2011 Includes 100% of CPI Increase on Service Component (March 2010 — March 2011) And Actual Disposal Costs Service Component: Rolloff Box Size Standard 20 yard box Standard 30 yard box Standard 40 yard box $ 110.19 per pull plus $13.10/ton of Solid Waste Collected $ 151.53 per pull plus $13.10/ ton of Solid Waste Collected $ 177.39 per pull plus $13.10/ton of Solid Waste Collected The Service Component for Rolloff Compactors is three times the per pull rate for the same size Rolloff Box, plus $13.10 per ton of Solid Waste Collected (i.e., the Service Component for a 40 yd. Compactor is: 3 x $ 177.39 = $ 532.17 +$13.10/ ton) Disposal Component: Actual Amount Charged to Contractor for Disposal TEMPORARY SERVICE USING BINS Temporary Service utilizing a 3yd Bin is subject to a maximum rate, comprised only of a Service Component, of $ 113.60 per servicmg by Contractor Temporary Service utilizing a 4yd Bin is subject to a maximum rate, comprised only of a Service Component, of $ 124.51 per servicing by Contractor Temporary Service Delivery Charge Bins and Rolloff Boxes used for Temporary Services are subject to a delivery charge of: $ 19.41 3-1 EXHIBIT 3 Roll -off & Temporary Service Component Calculations for July 1, 2011 Includes 100% of CPI Increase on Service Component (March 2010 — March 2011) ROLL OFF BOXES 3-2 SSyF$ 20 yard $ 106.99 $ 3.20 $ 110.19 30 yard $ 147.13 $ 4.40 $ 151.53 40 yard $ 172.24 $ 5.15 $ 177.39 TEMPORARY SERVICE $ 110.30 $ 3.30 $ 113.60 3 yard 4 yard $ 120.90 $ 3.61 $ 124.51 Delivery Charge $ 18.85 $ 0.56 $ 19.41 3-2 BURRTEC WASTE & RECYCLING SERVICES "We'll Take Care Of It" July 6, 2011 Mr. Les Johnson Planning Director City of La Quinta P. 0. Box 1504 La Quinta, CA 92247-1504 Re: Continuation Certificate Dear Mr. Johnson: JUN 11 CITY OF LA fuIN:TA HAND DELIVERED Enclosed please find the continuation certificate on the existing Performance Bond as required in the Franchise Agreement between Burrtec Waste and Recycling Services and the City of La Quinta. If you have any questions, please do not hesitate to contact me at (760) 674-1039. Sincerely, Michael Veto Director Municipal Services MV: rjg Enclosures: 3 41-575 Eclectic Street • Palm Desert, California 92260. 760-340-5901 • Fax: 760-340-2732 • www.burrtecdesert.com Marnatonal Fidelity laxura co Company One Newark Cantu -202 Floor Newark. NJ 07102 (973) 624 noo www llarwm CONTINUATION CERTIFICATE Bond No. 0454792 Bond Amount: $1,000,000 Bond Description: Franchise Bond Term Effective Date: 06/30/11.06/30/12 Term Premiwn: 915,000.00 Principal/Insured: Burette Waste & Recycling Svcs 224 S. Las Poses Road San Marcos CA 92069 - 0000 Obligee: City of La Quinta 78-495 Calle Tampico P.O. Box 1504 La Quanta CA 92247 -1504 Agent: ABiant Insurance Service, Inc It is hereby agreed that the captioned numbered Bond is continued in force in the above amount for the period of the continued term stated above. This continuation shall be deemed a part of the original bond and not a new obligation and is subject to all the covenants and conditions of said bond. INTERNATIONAL FIDELITY INSURANCE COMPANY By: Attorney -in -Pact -Lawrence F. McMahon CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT u. '/c\," --:d 1Nq.w State of California County of San Diego On JUN 2 2 2011 before me, Date personally appeared } Lilia Robinson, Notary Public Lawrence Here Insert Name and Tile of the Officer F. McMahon Name(a) of Signer(s) LILIA ROBINSON re COMM.9 SAN DIEGO COUxNNTYMn pis NO EMBERCommissi2,2013 I Place Notary Seat Above who proved to me on the basis of satisfactory evidence to be the person(0) whose name(s) is/g►e subscribed to the within instrument and acknowledged to me that he/Wieftey executed the same in his/bey/Their authorized capacity(J6i$), and that by his/HIY/TMt signature($) on the instrument the person($), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official sea Signature OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above. Signature of Notary Public Capacity(les) Claimed by Slgner(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited ❑ General ❑ Attorney In Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: 0 Individual ❑ Corporate Officer — Title(s): ❑ Partner —O Limited 0 General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other Signer Is Representing. RIGHTTHUMBPRINT OF SIGNER t. Top of thumb here 02007 National Notary Association- 9350 De Soto Ave..PO.Boxx 2402•Chalavort CA 913134402•w,v Nationallotantorg Item /5907 Reorder: Call Toll-Frm1-800.6766827 Tel ( 73)624-1200. ERNATI©NAL FIDELITY INSURANCE rCOMP HOME OFFICE: ONE'N€ WARK CENTER, 20TH FLOOR' NEWARK„NEW JERSEY 07102-5207 ri �., KNOW'ALL MENBY THESE PRESENTS That RITERNATIONAL FIDELITY INSURANCE COMPANY, a corpatatton orgaoi2ed and ezisnng ” laws of the`State of New Jersey! and havhig.its principal office in the'City of Newark; New Jersey, does hereby constitute and•appomf •• r r-" JAMES D. CASTLE,.LINDSEY LAUX, LAWRENCE F MCMAHON San. Diego, CA. itstree and lawful attorney(s)-in-factto execute, 'Seal and deliver: for and on its behalf as surety, any and all bonds and undertakings, connaets,of indemnity and other writings obligatory; in the nature thereof, which are or may be allowed, requiredor permitted, by law, stature rile, regulation, -contract or otherwise and the' execution of such- instrument(s) in pursuance:. of these presents;. shall be as binding upon the said INTERNATIONAL FIDELITY INSURANCE -.COMPANY, as: ftnlly and amply to all intents and purposes, as if the same had been duly exeeuted and'acknowledged by its regularly elected officers at its This Power of Attorney is executed, and May be revoked, pursuant to and by authority of Article 3 -Section 3, of the By-Lawsado ted by the Board' of Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting called andheld'on the 7th day of February, 1p974, • The: President or any Vice President, Executive Vice President, Secretary or Assistant Secretary, shall have power and authority • ... , (1) To appoint Attorneys -in -fact, and to authorize them to execute on behalf of the. Company, and attach theSeal' of the Company therein, bonds and r• undertakings, contracts of indemnity and other writings obligatory in the nature thereof and, - . (2) To remove, at any tune, any such attorney in fact and revoke the authority given. • Further, this Power of Attorney is signed and sealed by -facsimile pursuant to resolution of the Board of Directors of said Company adopted at a meeting duly called and, held on the 29th day of April, 1982 of which the following is -a true excerpt - • Now therefore the signatures of such officers and the seal of the Company may be affixed to. any such power of attorney or any certificate relating thereto by ° facsimile, and any such power of attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the Company in the future with respect to any `_ bond or undertaking to which it is attached: IN TESTIMONY WHEREOF; INTERNATIONAL FIDELITY INSURANCE COMPANY has caused this instrument to be signed and its corporate seal to be affixed by its authorized officer, this 16th day of October, A.D. 2007. _ ' INTERNATIONAL FIDELITY INSURANCE COMPANY STATE OF NEW JERSEY. County of Essex:, - On this 16th day of October 2007, before me`came the individual who executed the preceding instrument, to me personally known, and,.. being by me duly. ::.., sworn, said the he is the therein described and authorized officer of the 'INT'ERNATIONAL FIDELITY INSURANCE COMPANY; that the seal affixed to said instrument is the Corporate Seal of, said Company; that the said Corporate Seal and his signature were duly affxed'by order of the Board of Directors of said Company. • O:NOTARY * JE IN TESTIMONY WHEREOF, I have hereunto set my hand affixed my Official Seal, at the City' of Newark; New Jersey the day and year first above written. A NOTARY PUBLIC OF NEW JERSEY My Commission Expires Nov 21 2010'i- ' s' 'CERTIFICATION I, the undersigned officer of INTERNATIONAL FIDELITY, INSURANCE COMPANY do hereby certify` that I have compared the foregoing copy of. the Power of Attorney and affidavit, and the copy of. the Section of the By -Laws of said Company as set forth in said Power. of Attorney` with the ORIGINALS ON IN.THE HOME OFFICE OF SAID COMPANY, and that the same are -correct transcripts thereof,and of the whole of tfre said originals:in(' that the said.Power f. Attorney has not been revoked and is now 4n full force and effect '-:.11iq • • i"411.:1-' ,-"'.1* „. 222011 . • IN TESTIMONY WHEREOF have hereunto set my hand this`` r day, of rAssrstani Secreta Intamat :nal FId011ty Insurance Company One theme coMn-20 ' How Man til ar102 W)81024 7200 wxw. tate CONTINUATION CERTIFICATE Bond No. 0454792 Bond nosaription. pvenehiseSend Tera ger active Date: 06/30/12-06!30/13 Principal/Insured: Obligee: Agent. Bond Amount: $1,000,000 merm Premium: $15,000.00 Duniec Waste & Ra ling Sva 224 & Las Paso Road San Marcos CA 92069-0000 City or Le Quints 70495 CODs Tampico N.O. Dox 1504 Le QuInia CA 92247 -1504 Milani Iasunnce Servke, Inc It is hereby agreed that the captioned numbered Bond is continued in force in the above amount for the period of the continued term stated above. This continuation shall be deemed a part of the original bond and not a new obligation and is subject to all the covenants and conditions of said bond. INIERNATION d DELITY INSURANCE COMPANY ay torney -Fact Lawrence F. McMahon CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA County of San Diego on JUN 1 5 2012 befareme. Des parson* appeared Lawrence F. McMahon Sarah Myers, Notary Publro atm wmfpamaraatledire Maar Nrr(gdagartt SARAH MYEas CammhNoa a 1956469 Hduy rob* - Cexforals See Dino Coma eNor t2016 Pam nmary6aVMen who proved to me on the bask of satisfactory evidence to be the person(y) whose name() IsW(b subscribed to the vain InatrtarmS and tome that he executed the same in r authorized caped and that by hlW N dtWtlr signature(s) on the insbumen he pie (finely bpo elf of which the person(y) ed, executed the nt I certify under PENALTY OF PERJURY under the taus of the State o( California that the foregr*Ig paragraph 13 hue and correct. Wlbhess my hand and official se Signature Norman oWary Paue OPTIONAL Though the brlummtlon below Isnot muted by bail! may prove valuable to persons saying on the document and could prevent Dnuorulen/rentoval and mafeohment of thle lora to another document Description of Attached Document 'ale or Type ol Document: Document Date: Number of Paget Signets) Other Than Named Above• Capaclty(lee) CMtmed by Signers) Signers Nems: ❑ Individual ❑ Corpotete Meer —Three* O Partner — ❑ Lnnhed O General ID Attorney InFad O *Oleo ❑ QuerdlenorCaneervator ❑ Olheh: Signer b Represwelne: Surety Company 111(1117 TNIV,IFPIIIN SICitlf Topof thumb here Shiner's Name: ❑ Individual ual ❑ Corporatee Meer —Tlee(s)- ❑ Palen —CI LaaltedUGeneral o Attorney thFact Q Dudes O GuaMlanoCNnapator O Other: Signer le Represanlrne: ni ,hiT r F 1uf17 P f1111T OF sicrauiiv repot thumb tete 0 WASTE & RECYCLING SERVICES "We'll Take Care Of It" BURRTEC June 20, 2013 Mr. Les Johnson Planning Director City of La Quinta P.O. Box 1504 La Quinta, CA 92247-1504 RE: Continuation Certificate Dear Mr. Johnson, RE - Y ED JUN 24 2013 CITU OF LA QUINTA PLANNING DEPARTMENT Enclosed please find the continuation certificate on the existing Performance Bond as required in the Franchise Agreement between Burrtec Waste and Recycling Services and the City of La Quinta. If you have any questions please do not hesitate to call. Sincerely, fr Mike Veto Director of Municipal Services 41-575 Eclectic Street • Palm Desert, California 92260. 760-340-5901 • Fax: 760-340-2732 • www.burrtecdesert.com Inlemational Fkleligrinsurance Company One Newark Center -200 hoof Newark, NI 07102 (973)624 7200 www.Me.com CONTINUATION CERTIFICATE aka OM Bond No. 0454792 Bond Amount: $1,000,000 Bond Description: Franchise Bond Term Effective Date: 06/30/13 - 06/30/14 Term Premium: $12,000.00 Principal/Insured: Burrtec Waste & Recycling Svcs 224 S. Las Posas Road San Marcos CA 92069 - 0000 Obligee: City of La Quinta 78-495 Calle Tampico P.O. Box 1504 La Quinta CA 92247 - 1504 Agent: Alliant Insurance Service, Inc It is hereby agreed that the captioned numbered Bond is continued in force in the above amount for the period of the continued term stated above. This continuation shall be deemed a part of the original bond and not a new obligation and is subject to all the covenants and conditions of said bond. Signed and sealed this 2nd day of May, 2013. INTE'iu, TIONAL FIDELITY INSURANCE COMPANY By Attorney -in -Fact Lawrence F. McMahon CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA County of San Diego on MAY 0 2 2013 Date personalty appeared before me, Janice R. Martin , Notary Public, Insert Name of Notary exactly as it appears on the official seal Lawrence F. McMahon Name(s) of Signer(s) JANICE R. MARTIN COMM. #1986564 NOTARY PUBLIC -CALIFORNIA 5/2 SAN DIEGO COUNTY If My Commission Expires JULY29,2016 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(H/j whose name(/ ] isnWf subscribed to the within instrument and acknowledged to me that he/#01Thg1J executed the same in his/)`/p//,fJ $t authorized capacity(,I,f b, and that by his/ryq///f1//signature(It) on the instrument the person%, or the entity upon behalf of which the personN acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my and fficial se Signature r Sign re Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual D Corporate Officer—Title(s): ❑/Partner ❑ Limited ❑ General Ls Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: RIGHT THUMBPRINT .]OF SIGNER Top of thumb here Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s): ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here E el Or n • , . , ALLEGHENY CASIJALTY COMPANY oNE.;. NEWARK CENTER, 2OTH FLOOR NEWARK, NEW JERSEY07102-5207 KNOW ALL MEN BY THESE PRESENTS:. That INTERNATIONAL FIDELITY . INSURANCE COMPANY.; a corporation organized and existing under the laws of the State: of New Jersey, and ALLEGHENY CASUALTY COMPANY a corporation organized and existing.under the laws of the State of : • Pennsylvania, having their principal office in the City of Newark; New Jersey, do hereby constitute and appoint ; . • , . • • , LAWRENCE :F,'MdMAHON ..• I• their true and lawful attomey(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of indemnity , and other writings obligatory in the nature thereof, which are or may be allowed, required or permitted by law, statute t rule, regulation, contract or othetwise, ../ '. and the execution of such instrument(s1 in pursuance of these presents, shall be as binding upon the said INTERNATIONAL FIDELITY INSURANCE, 1 ' COMPANY and ALLEGHENY CASUALTY COMPANY, as,fully and %amply, to all intents and purposes, as if the same had been duly executed and acknowledged by their regularly elected otflcers at thelr principal olfices F• This Power of Attomeis executed, and may be revoked„ pursuant to and by authority of the By Laws of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY and is granted under and by authority of the following resolution adopted by the Board of Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 20th day of July, 201D and by the Board of Directors of ALLEGHENY:, "RESOLVED, that (1) the President, Vice President, or Secretary of the Corporation shall have the power to appoint, and to revoke the appointments of, Attorneys -in -Fact or agents with power and authority as defined or limited in their respective powers of attorney, and to execute on behalf of the Corporation and affix the Corporations seal thereto, bonds, undertakings, recognizances, contracts of indemnity and other written obligations in the nature thereof or related thereto; and (2)any such Officers of the Corporation may appoint and revoke the appointments of joint -control custodians, agents for acceptance of process, and Attomeys-in-fact with authority to execute waivers and consents on behalf of the Corporation; and (3) the signature ofanysuch Officer of the Corporation and the Corporation's seal may be affixed by facsimile to any power of attomey or cerbficafion given for the execution of any bond, undertaking. recognizance, contract of indemnity or other written obligation in the nature thereof or related thereto, such signature and seals when so used whether heretofore or hereafter being hereby adopted by the Corporation the same force as the original signatureeffect as though nof such officer and the original seal of the Corporation, to be valid • IN WITNESS WHEREOF, INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY have each executed and • , On this 12th day of March 2012 before me carne the individual who executed the preceding instrument, to me personally known and, being by me duly sworn saud he is the therein described and authorized officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY • .• COMPANY mat the seals affixed to said instrument are the Corporate Seals of said Companies; that the said Corporate Seals and his signature were affixed by order of the Boards of Directors of said Companies IN TESTIMONY WHEREOP 1 e:reunto set may and year d first hand affixed my Official Seal, • <• n Ineft;•;,,- • . at the City of Newark New Jerseythe . - ROBERT W. MINSTER Executive Vice President/Chief Operating Officer (International Fidelity Insurance Company) and President (Allegheny Casualty Company) , 1, the undersigned officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY,COMPANY, do hereby certify that I have • compared the foregoing copy of the Power of Attorney and affidavit, and the copy of the Sections of the By -Laws of said Companies as set forth in said Power of Attorney, with the originals on file in the home office of said companies, and that the same are correct transcripts thereof, and of the whole of the said originalsand that the said Power of Attothey has not been revoked and is now in full force and effect • ' , • ,•. , . , . . . . . . . . . 1 , I . Tali/at aulittad 78-495 CALLE TAMPICO LA QUINTA, CALIFORNIA 92253 July 22, 2014 Mr. Paul Angulo, CPA, MA Riverside County Auditor -Controller Property Tax Division 4080 Lemon St., 11th Floor Riverside, CA 92501-1326 Re: City of La Quinta Fund No. 68-2376: Compliance with Proposition 218 (760) 777-7000 FAX (760) 777-7101 Dear Mr. Angulo: The City of La Quinta (City) represents that the rates associated with Property Tax Fund 68- 2376 identified on the County Tax Roll as Refuse Service are in compliance with applicable provisions, if any, of Articles XII C and XII D of the California Constitution (Proposition 218). The County Auditor-Controller/County of Riverside has agreed to enter all assessments, charges or taxes for the City upon receipt of such roll on or about August 1, 2014, based upon such certification. The City shali be solely liable and responsible, and will defend, indemnify and hold the County and the Office of the Auditor -Controller harmless from any liability as a result of claims or claims for refunds and related interest due filed by taxpayers against any assessments, fees, charges or taxes placed on the roll for. the City by the County. Enclosed is the Resolution as adopted by the City Council on July 15, 2014. If you have any questions or require additional information, please contact Chris Escobedo, Assistant to the City Manager, at (760) 777-7010. Sincerely, Frank J =pev qek City Ma ATTEST: SUSAN MAYSELS, Ci ,t Clerk City of La Quinta, California Enclosure RESOLUTION NO. 2014 036 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, REQUESTING THE COUNTY OF RIVERSIDE TO PLACE COLLECTION OF COSTS FOR SOLID WASTE HANDLING SERVICES AT SINGLE FAMILY DWELLINGS ON. THE TAX ROLLS. WHEREAS, the City Council of the City of La Quinta wishes to ensure the uniform collection of rates for solid waste handling services at single-family dwellings by placing collection thereof on the County of Riverside Tax Assessor's Tax Rolls; and WHEREAS, the attached Exhibit A sets forth the maximum rates that may be collected for solid waste handling services at single-family dwellings in the City of La Quinta pursuant to a franchise agreement with an Effective Date of July 1, 2007, entitled "Agreement Between The City of •La Quinta and Burrtec Waste and Recycling Services, LLC, for Solid Waste Handling Services"; and - WHEREAS, the City Council of the City of La Quinta City has determined that applicable provisions, if any, of Proposition- 218 (Articles XIII C and XIII D_ of the California Constitution) have been satisfied in connection with the matters addressed by this Resolution; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La Quinta, California as follows: SECTION 1. The City Council hereby requests the Riverside County Tax Assessor to place collection of costs for solid waste handling services at single-family dwellings in the City on the County's tax" rolls (Exhibit "A"). PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta City Council held on this 15th day of July, 2014, by the following vote: AYES: Council Members Evans, Franklin, Henderson, Osborne, Mayor Adolph NOES: None ABSENT: None ABSTAIN: None Resolution No. 2014-036 Residential Waste Fee Schedule Adopted: July 15, 2014 Page 2 ATTEST: SUSAN MAYSELS,'City Clerk • City of La Quinta, California (CITY SEAL) APPROVED AS TO FORM: ale Ctic-r2- WILLIAM H. IHRKE, City Attorney City of La Quinta, California ON ADCk'H, M City of La Quinta, California Resolution No. 2014-036 Residential Waste Fee Schedule Adopted: July 15, 2014 Page 3 EXHIBIT A: RESOLUTION 2014-036 CITY OF LA QUINTA REFUSE COLLECTION RATE AND DISPOSAL CHARGE TAX BILLING FY 14/15 - RESIDENTIAL PROPERTY Single -Family Dwelling Maximum Monthly Rate Maximum Yearly Rate Service Component of Maximum Rate $8.76 Disposal Component of Maximum Rate $3.23 AB 939 Fee $0.61 £2 F Total .Rate $12.60 $151.20 Additional Refuse Cart $6.68 $80.16 Backyard Service - For first refuse and first recycling carts/containers - For each additional cart/container $6.30 $6.30 $75.60 $75.60 Surcharge for HOA's Desiring Monday Service 10% of Service Component ` Tilt" 44i alba OFFICE OF THE CITY CLERK TEL (760) 777-7103 CERTIFICATION OF RESOLUTION 2014-036 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) CITY OF LA QUINTA ) I, SUSAN MAYSELS, City Clerk of the City of La Quinta, California, do hereby certify that the foregoing resolution containing three (3) pages is a full, true and correct copy of Resolution No. 2014-036 of the City of La Quinta entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, REQUESTING THE COUNTY OF RIVERSIDE TO PLACE COLLECTION OF COSTS FOR SOLID WASTE HANDLING SERVICES AT SINGLE FAMILY DWELLINGS ON THE TAX ROLLS Resolution 2014-036 was adopted by the La Quinta City Council on the 15th day of July 2014. Dated: July 22, 2014 SUSAN MAYSELS, C Clerk City of La Quinta, California (CITY SEAL) 78-495 CALLE TAMPICO, LA QUINTA, CA 92253 6/29/30 BURRTEC WASTE & RECYCLING SERVICES "We'll Take Care Of It" Mr. Ted Shove Business Analyst City of La Quinta 78495 Calle Tampico La Quinta, CA 92253 Re: Continuation Certificate Dear Mr. Shove, Please find attached the continuation certificate on the existing performance bond as required in the franchise agreement between Burrtec Waste & Recycling Services and the city of La Quinta. If you have any questions please do not hesitate to call. Sincerely, *AZ z4Ae-- Mike Veto Director of Municipal Services 41-575 Eclectic Street • Palm Desert, California 92260. 760-340-5901 • Fax: 760-340-2732 • www.burrtecdesert.com INTERNATIONAL FIDELITY INSURANCE COMPANY (Home Office: Newark, New Jersey) 2999 Oak Road, #820, Walnut Creek, CA 94597 CONTINUATION -PREMIUM BILLING NOTICE Principal -Name & address Burrtec Waste & Recycling Services 224 S. Las Posas Road San Marcos, CA 92069 Obligee City of La Quinta 78-495 Calle Tampico P.O. Box 1504 La Quinta, CA 92247-1504 Bond Amount $1,000,000.00 Bond No.: 454792 Continuation Effective Date From: June 30, 2015 To: June 30, 2016 Agent: Alliant Insurance Services, Inc. 701 B Street, 6th Floor San Diego, CA 92101 Premium Billing $ 12,000.00 ❑Continuation Certificate Not Required ®Continuation Certificate Required And Is Described Below CONTINUATION CERTIFICATE It is hereby agreed that the captioned numbered Bond is continued in force in the above amount for the period of the continued term stated above and is subject to all the cov- enants and conditions of said Bond. This continuation shall be deemed a part of the original Bond, and not a new obli- gation, no matter how long the Bond has been in force or how many premiums are paid for the Bond, unless otherwise provided for by statute or ordinance applicable. In witness whereof, the company has caused this instrument to be duly signed, sealed and dated as of the above "continuation effective date". Signed and Sealed May 5, 2015 Int -national Fidelity Insurance Company By:t; Lawrence F. McMahon / Attorney -in -Fact No Signature Needed Where Continuation Certificate Is Not Required CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Civil Code § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. STATE OF CALIFORNIA County of San Diego On MAY 0 5 2015 before me, Janice R. Martin } Date personally appeared Lawrence F. McMahon U Cr)! Insert Name of Notary exactly as it appears on the official seal , Notary Public, Name(s) of Signer(s) JANICE R. MARTIN i' COMM. #1986564 n NOTARY PUBLIC -CALIFORNIA to SAN DIEGO COUNTY 1.1 My Commission i ,sires ,11 11 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the personN whose named is/ f j/0 subscribed to the within instrument and acknowledged to me that he/WO/ * executed the same in his/OW/Mg authorized capacityM), and that by hisit/O jWsignature(Mb on the instrument the personUM), or the entity upon behalf of which the person(►) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Signature OPTIONAL Signatu Public Janice R. Martin Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner ❑ Limited ❑ General [✓J Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Number of Pages: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner 0 Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Te, (Sri) 324.7200 POWER OF ATTORNEY INTERNATIONAL FIDELITY INSURANCE COMPANY ALLEGHENY CASUALTY COMPANY ONE NEWARK CENTER, 20TH FLOOR NEWARK, NEW JERSEY 07102-5207 KNOW ALL MEN BY THESE PRESENTS: That INTERNATIONAL FIDELITY INSURANCE COMPANY , a corporation organized and existing under the laws of the State of New Jersey, and ALLEGHENY CASUALTY COMPANY a corporation organized and existing under the laws of the State of Pennsylvania, having their principal office in the City of Newark, New Jersey, do hereby constitute and appoint JAMES D. CASTLE, LAWRENCE F. MCMAHON San Diego, CA. their true and lawful attiarney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of indemnity and other writings obligatory In the nature thereof, which are or may be allowed, required or permitted by law, statute rote, regulation, contract or otherwise, and the execution of such instrument(s)to pursuance of these presents, shall be as binding upon the said INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY, as fully and amply, to all intents and purposes, as if the same had been duly executed and acknowledged by their regularly elected officers at their principal offices. This Power of Attorney Is executed and maybe revoked, pursuant to and byauthority of the By -Laws of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY and is granted under and by authority of the following resolution adopted by the Board of Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 20th day of July, 2010 and by the Board of Directors of ALLEGHENY CASUALTY COMPANY at a meeting duly held on the 15th day of August, 2000: "RESOLVED, that (1) the President. Vice President, Executive Vice President or Secretary of the Corporation shall have the power to appoint, and to revoke the appointments af, Attorneys -in -Fact or agents witpower and authority as defined or limited in their respective powers of attorney, and to execute on behalf of the Corporation and affix the Corporation's seal thereto, bonds, undertakings, recognizances, contracts of indemnity and other written obligations in the nature thereof or related thereto; and (2) any such Officers of the Corporation may appoint and revoke the appointments of joint -control custodians, agents for acceptance of process, and Attorneys -in -fact with authority to execute waivers and consents on behalf of the Corporation, and (3) the signature of any such Officer of the Corporation and the Corporation's seal may be affixed by facsimile to any power of attorney or certification given for the execution of any bond, undertaking, recognizance, contract of indemnity or other written obligation in the nature thereof or related thereto, such signature and seats when so used whether heretofore or hereafter, being hereby adopted by the Corporation as the original signature of such officer and the original seal of the Corporation, to be valid and binding upon the Corporation with the same force and effect as though manually affixed." IN WITNESS WHEREOF, INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY have each executed and attested these presents.on this 12th day of March, 2012. STATE OF NEW JERSEY County of Essex ROBERT W. MINSTER Executive Vice President/Chief Operating Officer (International Fidelity Insurance Company) and President (Allegheny Casualty Company) On this 12th day of March 2012, before me carne the individual who executed the preceding Instrument, to me personally known, and, being by me duly sworn, said he is the therein described and authorized officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY ; that the seals affixed to said instrument are the Corporate Seals of said Companies; that the said Corporate Seals and his signature were duly affixed by order of the Boards of Directors of said Companies. lllll ?p A Ry ~: Ob. ,� r OA- NO1• 54t a IN TESTIMONY WHEREOF, I havehereunto set mhand affixed my Official Seal, at the City of Newark, New Jersey the day and year firs! above written. CERTIFICATION A NOTARY PUBLIC OF NEW JERSEY My Commission Expires Mar. 27, 2014 I, the undersigned officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY do hereby certify that I have compared the foregoing copy of the Power of Attorney and affidavit, and the copy of the Sections of the By -Laws of said Companies as set forth in said Power of Attorney, with the originals on file in the home office of said companies, and that the same are correct transcripts thereof, and of the whole of the said originals, and that the said Power of Attorney has not:been revoked:and is now in full force and effect. IN TESTIMONY WHEREOF, l have hereunto set my hand this day of MAY 0 .b 2015 MARIABRANCO, Assistant Secretary July 30, 2015 Taitot 4014a Mr. Paul Angulo, CPA, MA Riverside County Auditor -Controller Property Tax Division 4080 Lemon St., 11th Floor Riverside, CA 92501-1326 Re: City of La Quinta Fund No. 68-2376: Compliance with Proposition 218 Dear Mr. Angulo: The City of La Quinta (City) represents that the rates associated with Property Tax Fund 68-2376 identified on the County Tax Roll as Refuse Service are in compliance with applicable provisions, if any, of Articles XII C and XII D of the California Constitution (Proposition 218). The County Auditor-Controller/County of Riverside has agreed to enter all assessments, charges or taxes for the City upon receipt of such roll on or about August 1, 2015, based upon such certification. The City shall be solely liable and responsible, and will defend, indemnify and hold the County and the Office of the Auditor -Controller harmless from any liability as a result of claims or claims for refunds and related interest due filed by taxpayers against any assessments, fees, charges or taxes placed on the roll for the City by the County. Enclosed is the Resolution as adopted by the City Council on July 7, 2015. If you have any questions or require additional information, please contact Ted Shove, Business Analyst, at (760) 777-7131. Sincerely, Frank J. Sp City Man ATTEST: SUSAN MAYSELS, City CI City of La Quinta, California Enclosure 78-495 Calle Tampico 1 La Quinta 1 California 92253 1 760.777.7000 1 wvo.v.iort; State of California CIWMB 184 (Rev. 07/08) PROOF OF DESIGNATION California Integrated Waste Management Board This form may be used as a Proof of Designation by a Designated Approved Collector, pursuant to 14 CCR 18660.5(a)(34), when secured from a California local government and duly executed by an officer authorized to take action on behalf of that local government, such as, but not limited to, a City Manager, County Administrator or Executive, or a District Manager or Director. If a Designated Approved Collector chooses to use this form as a Proof of Designation, this form must accompany the covered electronic waste (CEW) collection logs associated with CEWs transferred from a designated approved collector to an approved recycler. A copy of this Proof of Designation and associated collection logs must also accompany any recycling payment claim that includes CEWs received from a designated approved collector. Designating Local Government: City of La Quinta Designated Approved Collector Name: Burrtec Waste and Recycling Services, LLC CEWID #: 103142 Designation Start Date: 01/01/2016 Designation End Date: 12/31/2019 Please be aware that a Collector must maintain their approved status for a Designation to be valid. Geographic Area of Service: City of La Quinta, Riverside County, California Location(s) and Description(s) of Collection Activities (attach additional sheets as necessary): Citywide, collection, hauling and disposal of residential and commercial electronic waste Type of Collection Activities to be Provided (check all that apply): ►1 Drop-off ►1 Curbside WSpecial Events ►lIllegal Disposal Clean-up ❑Other (specify): CEW Sources Served (check all that apply): /1 Residents ►4Businesses /Government 11 Educational / Non -Profit Institutions ❑Other (specify): Name of Designating Authority (printed): Frank J. Spevacek Title: City Manager Signature: ,/ / Digitally sgnedb=1n61 LSpevacek DNaeri signed y Frank.). ran 5nh07202cvmj, A ! , US, st=California, I=La Quinta, o=Frank 1. -- J. Spevacek, cn=Frank J. Spevacek Date Signed: Phone: (760) 777-7030 Date: 20,6.0,.2„5:5,:32-08'00' E -Mail: fspevacek@Ia-quinta.org Address: 78-495 Calle Tampico La Quinta, CA 92253 DIRECTIONS FOR COMPLETING THE PROOF OF DESIGNATION FORM This form may be completed by a local government to demonstrate that it has designated the identified Approved Collector in the Covered Electronic Waste (CEW) Recovery and Recycling Payment System to act as a Designated Approved Collector for the local government when handling CEWs generated from California sources within the jurisdictional responsibility of the designating local government. The proof of designation must be duly executed by an officer of the designating California local government with the authority to take official action on behalf of the local government such as, but not limited to, a City Manager, County Administrator or Executive, or a District Manager or Director. Only CEW recovery activities that fall within the scope of the designation may be handled by the identified Approved Collector while acting as a Designated Approved Collector for the local government. CEW recovery activities conducted by the Approved Collector that fall outside the scope of designation must be logged and recorded according to applicable regulatory requirements. In general, CEW recovery activities conducted by a Designated Approved Collector will involve CEWs transferred directly to the Designated Approved Collector by California sources. Such activities must be recorded through collection logs as required by regulation. See regulatory citation on the next page for further details. Page 1 of 2 Designated Approved Collector California Integrated Waste Proof of Designation (revised 06/08) Management Board PARTIAL SUMMARY OF APPLICABLE LAWS AND REGULATIONS Title 14 CCR 18660.5(a)(19) "Designated Approved Collector" means an approved collector, as defined in subsection (a)(2) of this section, that has been designated by a California local government to provide CEW collection services for or on behalf of the local government and who, in the course of providing the services for the local government, would not be subject to the source documentation requirements pursuant to Section 18660.20(j)(1)(B) of this Chapter. 18660.5(a)(34) "Proof of designation" means a letter or other document that must be secured by a designated approved collector from a California local government that, at a minimum, specifies the following information: (A) The beginning and end dates of the designation. (B) The geographic area within which the designated approved collector is providing CEW collection services for the local government and the locations(s) at which the collection service is provided. (C) The customer type to be served by the designated approved collector (i.e. residential, commercial, etc). (D) The nature of collections activities to be provided by the designated approved collector (i.e. drop-off receipt, curbside service, illegal disposal clean-up, etc). (E) Contact information for the designating authority. (F) If the proof of designation secured by the designated approved collector is a document other than a letter from the local government, the proof must also include the designated approved collector's written notification to the local government that such other document has been used. The written notification provided to the local government must be accompanied by a copy of the document being used to demonstrate designation. (G) If, after January 1, 2005, and before the effective date of this regulation, a designated approved collector has secured a document from a local government that does not meet the definition of proof of designation as specified in this Section, such document may be used by a designated approved collector to comply with applicable requirements of this Chapter through March 31, 2006. 18660.20(h) An approved collector shall provide to any approved collector or approved recycler to whom it transfers CEWs information on the origin (California or non -California) and cancellation status of CEWs transferred, including but not limited to the following: (1) Signed statement listing the sources(s) of the transferred CEWs as recorded pursuant to subsection (j) of this section. (2) A copy(ies) of the applicable portions of the collection log specified in subsection (j) of this section that describe the collection activities that resulted in the transferred CEWs. (3) Written description of any activity, such as storage, repair, refurbishment, resale, reuse, transfer, packaging and/or consolidation, that explains any discrepancy between the CEWs transferred and the CEWs collected as recorded in the log specified in subsection (j) of this section. (4) A copy of any applicable proof of designation specified in subsection (k) of this section associated with CEWs collected while acting as a designated approved collector for a local government. 18660.20(j) In addition to the general record keeping requirements in Section 18660.8 of this Chapter, an approved collector shall maintain the following records: (1) A collection log containing: (A) For each collection activity or event that results in CEWs transferred to the approved collector, a brief written description of the collection activity or event, including the type of consumers targeted for collection, the date and location the activity or event occurred, the number of CEWs collected, and an estimate of the weight of CEWs collected. (B) Approved collectors that are not California local governments, nor entities acting as the designated approved collector for a California local government, shall maintain a list of all consumers who discarded the CEWs transferred to the approved collector, including the name and address of the consumer and the number of CEWs discarded by the consumer. (C) When receiving five (5) or more CEWs units discarded from a non-residential consumer, an approved collector shall record the name of the non-residential organization, an address, a contact person and a telephone number. (D) A list of other handlers and approved collectors who transferred CEWs to the approved collector in any month, including the name and address of the other handler and approved collector and the number of CEWs transferred and the sources of those CEWs as recorded pursuant to parts (A) and (B) of this Section. (E) When collecting source -anonymous CEWs, all approved collectors shall: 1. Log the source -anonymous CEW collection activity separately. 2. Provide a brief written description of the activity or incident that resulted in the source -anonymous CEWs. 3. Record the date and location of the activity or incident, the number and an estimate of the weight of source - anonymous CEWs collected from the location of the activity or incident. 4. Record the name, organizational affiliation, address and phone number of a person responsible for the site of the activity or incident. 18660.20(k) An approved collector that is acting as a designated approved collector for a local government shall do the following: (1) Secure proof of designation as defined in Section 18660.5(a)(29) of this of this Chapter. (2) Provide a copy of the applicable proof of designation to another approved collector or approved recycler at the time CEWs are transferred from the designated approved collector to another approved collector or approved recycler. (3) A designated approved collector shall be relieved only of the source documentation requirement specified by Section 18660.20(j)(1)(B) of this Chapter only for those collection activities that occur within the designation as specified in subsection k(1) of this section. Page 2 of 2 cetty/ 4 4C4iiiinsi MEMORANDUM TO: Frank J. Spevacek, City Manager FROM: Ted Shove, Business Analyst DATE: January 19, 2016 RE: Execution of Proof of Designation for Burrtec to collect electronic waste — Calrecycle Requirement Attached for your signature is one (1) original agreement. Please sign original and return them to the City Clerk for processing and distribution. Requesting department shall check and attach the items below as appropriate: N/A Contract payments will be charged to account number: 101-2001-36600 N/A N/A A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with no reportable interests in LQ or reportable interests N/A A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant does not meet the definition in FPPC regulation 18701(2). Authority to execute this agreement is based upon: X Approved by the City Council on May 15, 2007 under Resolution No. 2007-048 (Exclusive Franchise Agreement for Solid Waste Services) — The document authorizes Burrtec to collect electronic waste for Calrecycle's solid waste collection tracking system N/A City Manager's signature authority provided under Resolution No. 2005-095 Public Works projects for $30,000 or less. N/A City Manager's signature authority provided under Resolution No. 2005-096 Service agreements for $30,000 or less. N/A City Manager's signature authority provided under Contract Change Order Policy Contracts under $100,000= 10% max, contracts over $100,000= $25,000 max The following required documents are attached to the agreement: N/A Insurance certificates as required by the agreement (initialed by Risk Manager on _N/A) NIA Performance bonds as required by the agreement (originals) N/A City of La Quinta Business License (copy or note number & expiration date here _N/A )