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2016-2026 Burrtec Waste & Recycling Amended & Restated No. 1
AMENDED AND RESTATED AGREEMENT BETWEEN CITY OF LA QUINTA AND BURRTEC WASTE AND RECYCLING SERVICES, LLC FOR SOLID WASTE HANDLING SERVICES EFFECTIVE JULY 1, 2016 698/015610-0002 9568777.6 a04/26/16 TABLE OF CONTENTS SECTION 1. RECITALS 2 SECTION 2. DEFINITIONS 2 2.1 AB 341 2 2.2 AB 939 2 2.3 AB 1826 2 2.4 Affiliate 2 2.5 Animal Waste 3 2.6 Bins 3 2.7 Bulky Items 3 2.8 CalRecycle 3 2.9 Cart 4 2.10 City 4 2.11 City Limits 4 2.12 City Manager 4 2.13 Collect/Collection 4 2.14 Commercial Premises 4 2.15 Container 4 2.16 Contractor 4 2.17 Customer 5 2.18 Dwelling Unit 5 2.19 Effective Date 5 2.20 Environmental Laws 5 2.21 Food Waste 5 2.22 Franchise Area 5 2.23 Franchise Fee 5 2.24 Green Waste 6 2.25 Gross Receipts 6 2.26 Hazardous Substance 6 2.27 Hazardous Waste 6 2.28 Multi -Family Dwelling 7 2.29 Municipal Code 7 2.30 Organic Waste 7 2.31 Person 7 2.32 Premises 7 2.33 Recyclable Material 7 2.34 Residential Premises 7 2.35 Rolloff Box 7 2.36 Single Family Dwelling 8 2.37 Solid Waste 8 2.38 Solid Waste Handling Services 8 2.39 Special Wastes 8 2.40 Temporary Service 8 2.41 Term 8 698/015610-0002 9568777.6 a04/26/16 -1- 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 9 3.1 Scope of Franchise 9 3.2 Matters Excluded from Scope of Franchise 9 SECTION 4. ENFORCEMENT OF EXCLUSIVITY 10 SECTION 5. ACCEPTANCE; WAIVER 10 SECTION 6. TERM 11 SECTION 7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT 11 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 12 SECTION 8. SOLID WASTE HANDLING SERVICES PROVIDED BY CONTRACTOR 12 8.1 General 12 8.1.1 Equipment 12 8.1.2 Performance Standards 12 8.1.3 Noise and Disruption 12 8.1.4 Collection Times 12 8.1.5 Collection Schedule 12 8.1.6 Commingling of Routes 13 8.1.7 Replacement of Containers 13 8.1.8 Contractor's Containers 13 8.1.9 Missed Pick-ups 14 8.1.10 Record of Non -collection 14 8.2 Residential Solid Waste Handling Service 15 8.2.1 Single Family Dwellings — Automated Collection 15 8.2.2 Single Family Dwellings — Manual Collection 15 8.2.3 Backyard Service 16 8.2.4 Single Family Dwellings — Bin Collection 16 8.2.5 Recycling Program for Single Family Dwellings Using Carts 16 8.2.6 Recycling Program for Single Family Dwellings Using Manual Service 17 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 18 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 20 8.2.15 Proper Handling of Bulky Items 20 8.2.16 Residential Sharps Collection Program 20 8.2.17 Residential Non -Controlled Medication Collection Program 20 8.2.18 [Intentionally Omitted] 21 8.2.19 Residential Used Oil and Oil Filter Collection Program 21 698/015610-0002 9568777.6 a04/26/16 -11- 8.3 Commercial Solid Waste Handling Services 21 8.3.1 Commercial Bins and Rolloff Boxes 21 8.3.2 Commercial Carts 21 8.3.3 Commercial Recycling Program 22 8.3.4 Organic (Food Waste/Greenwaste) Waste Diversion Program 23 8.3.5 Commercial Bulky Item Service 23 8.4 Temporary Services 23 8.5 Recycling Obligations and Public Education Program 25 8.5.1 Minimum Requirements for Delivery of Recyclable Materials and Green Waste25 8.5.2 Extent of Applicable Franchise Rights 25 8.5.3 AB 939 Obligations, Guarantee, and Indemnification 25 8.5.3.1 Warranties and Representations 25 8.5.3.2 Waste Reduction and Program Implementation 25 8.5.3.3 Guarantee and Indemnification 26 8.5.4 Waste Generation/Characterization Studies 27 8.5.5 Implementation of Additional Diversion Services 27 8.6 Additional Services 27 8.6.1 Biennial Document Shredding Events 27 8.6.2 City Sponsored Events 27 8.6.3 Recycling Assistance for Special Events 28 8.6.4 Bin and Bin Enclosure Cleaning 28 8.6.5 Litter Abatement 28 8.6.6 Holiday Trees 28 8.6.7 Handling of Electronic Waste 28 8.6.8 Acceptance of Recyclable Materials and Household Hazardous Waste 28 8.7 Special Services 29 8.8 Street Sweeping 29 8.9 Pilot Programs 34 SECTION 9. MINIMUM STANDARDS FOR CONTRACTOR'S SOLID WASTE HANDLING SERVICE COLLECTION VEHICLES 34 9.1 General 34 9.2 Air Quality/Fuel Requirements 34 9.3 Specific Requirements 35 9.4 Costs of Operation and Damages 36 9.5 City Inspection 37 9.6 Correction of Defects and Removal of Vehicles from Use within City 37 SECTION 10. CONTRACTOR'S SOLID WASTE HANDLING SERVICE PERSONNEL 37 10.1 Uniforms 37 10.2 Identification of Employees 37 10.3 Employee List 37 10.4 Driver's License 37 10.5 Discontinued Use of Unsatisfactory Employees 37 10.6 Training and Legal Compliance 38 10.7 Customer Service 38 10.7.1 Local Office; Local Participation 38 10.7.2 Telephone Customer Service Requirements 38 698/015610-0002 9568777.6 a04/26/16 -111- 10.7.3 Complaint Documentation 39 10.7.4 Resolution of Customer Complaints 39 10.7.5 Government Liaison 40 10.8 Education and Public Awareness 40 10.8.1 General 40 10.8.2 Implementation and On-going Education Requirements 40 SECTION 11. CONTRACTOR'S CONSIDERATION 41 11.1 Administrative Cost Reimbursement 41 11.2 Franchise Fee 41 11.3 Services at City Facilities 42 11.4 AB 939 Fee 42 SECTION 12. CHARGE FOR LATE PAYMENTS 44 SECTION 13. CONTRACTOR'S BILLING SERVICES AND SYSTEMS 44 13.1 Residential Customers 44 13.1.1 General — Tax Roll Billing 44 13.1.2 Credit for Residential Customers Receiving Bin Service 44 13.1.3 Refunds for Vacant Properties 44 13.2 Billing and Payment for Commercial and Multi -Family Customers 45 13.2.1 General 45 13.2.2 Unoccupied Premises 45 13.2.3 Delinquent Accounts 45 13.2.4 Minimum Requirements for Billing Statements 46 13.2.5 Billing System 46 13.2.5.1 Computerization of Account Information 46 13.2.5.2 Minimum Computer Programming Requirements 46 13.2.6 Billing Inquiries 47 13.2.7 Distribution of Public Information 47 13.3 Payment, Accounting Systems 47 13.3.1 Collection and Processing of Payments 47 13.3.1.1 Accounting and Deposit of Funds 47 13.3.1.2 Allocation of Funds 47 13.3.1.3 Allocation of Funds by City 47 13.3.1.4 Tax Roll Payments Limited 48 SECTION 14. FAITHFUL PERFORMANCE 48 SECTION 15. INSURANCE COVERAGE 49 15.1 Minimum Scope of Insurance 49 15.2 Minimum Limits of Insurance. 49 15.3 Deductibles and Self -Insured Retentions. 50 15.4 Other Insurance Provisions 50 15.4.1 General Liability and Automobile Liability Coverages 50 15.4.2 Workers' Compensation and Employers Liability Coverage 51 15.4.3 All Coverages 51 15.5 Acceptability of Insurers. 51 15.6 Verification of Coverage. 51 15.7 Loss or Reduction in Insurance 51 698/015610-0002 9568777.6 a04/26/16 -iv- SECTION 16. ASSIGNMENT, SUBLETTING, AND TRANSFER; REQUIREMENTS AND LIMITATIONS 51 16.1 General 51 16.2 "Assignment" to be Broadly Interpreted 52 16.3 Nature of Agreement - Personal to Contractor 52 16.4 Procedure for Consideration of Assignment 52 16.5 Assignment to a Family Member 54 SECTION 17. REVIEW OF SERVICES AND PERFORMANCE 54 17.1 Performance Hearing 54 17.2 Performance Satisfaction Survey 55 SECTION 18. CITY'S REMEDIES; DEFAULT AND TERMINATION 55 18.1 Notice of Default 55 18.2 Failure to Cure 56 18.3 Review by City Manager 56 18.4 City Council Review 56 18.5 Performance During Reviews 56 18.6 Termination without Right to Cure 56 18.7 Liquidated Damages 57 18.7.1 General 57 18.7.2 Service Performance Standards; Liquidated Damages for Failure to Meet Standards 58 18.7.3 Calculations for Liquidated Damages 58 18.7.3.1 Collection Reliability 58 18.7.3.2 Collection Quality 59 18.7.3.3 Customer Responsiveness 59 18.7.3.4 Timeliness of Submissions to City 59 18.7.4 Process for Assessment of Liquidated Damages 59 18.7.5 Timing of Payment 60 SECTION 19. CONTRACTOR'S REMEDIES; ADMINISTRATIVE HEARING 60 19.1 Administrative Hearing 60 19.2 Other Remedies; Claims 60 19.3 Actions for Damages 61 SECTION 20. CITY'S ADDITIONAL REMEDIES 61 SECTION 21. RIGHTS OF CITY TO PERFORM DURING EMERGENCY 61 21.1 Provision of Service 61 21.2 Possession of Equipment 62 21.3 Exclusions from Right to Possession of Equipment without Compensation 62 SECTION 22. PRIVACY 62 SECTION 23. REPORTS AND ADVERSE INFORMATION 62 23.1 Monthly Reports 63 23.2 Quarterly Reports 63 23.3 Annual Reports 63 23.4 Financial Report 64 23.5 Adverse Information 64 23.6 Disaster Plan 65 23.7 Failure to Report 65 698/015610-0002 9568777.6 a04/26/16 -v- SECTION 24. COMPENSATION 24.1 24.2 24.3 Contractor Rates Resolution of Disputes Regarding Rate Adjustments Annual Consumer Price Index Adjustments to Service Component 24.4 Limitations to Annual CPI Adjustments to Service Component 24.4.1 Rate Guarantee 24.4.2 Six Percent (6%) Cap 24.4.3 Compliance with Agreement 24.5 Disposal Component Adjustments 24.6 Discretionary Adjustments 24.7 Grants SECTION 25. IDENTIFICATION OF CONTRACTOR SECTION 26. CITY'S FLOW CONTROL OPTION SECTION 27. INDEMNIFICATION 27.1 General 27.2 Hazardous Substances Indemnification SECTION 28. CONTRACTOR'S BOOKS AND RECORDS; AUDITS 28.1 Maintenance and Inspection of Records 28.2 CERCLA Defense Records 28.3 Audits 28.3.1 Annual Examination of Services 28.3.2 Discretionary Audits 28.3.3 Route Audit SECTION 29. TRANSITION OBLIGATIONS SECTION 30. GENERAL PROVISIONS 30.1 Force Majeure 30.2 Independent Contractor 30.3 Pavement Damage 30.4 Property Damage 30.5 Right of Entry 30.6 Law to Govern; Venue 30.7 Amendment 30.8 Notices 30.9 Guarantee of Contractor's Performance 30.10 Savings Clause 30.11 Exhibits Incorporated 30.12 Joint Drafting 30.13 Attorneys' Fees and Litigation Costs 30.14 City's Authorized Agent 30.15 Integrated Agreement 30.16 Section Headings 30.17 Compliance with Law EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D 698/015610-0002 9568777.6 a04/26/16 65 65 66 66 67 67 67 67 68 68 68 69 69 69 69 70 72 72 72 72 72 73 73 74 75 75 75 75 75 75 76 76 76 76 77 77 77 77 77 77 77 78 MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES CONTAINER/BIN SPECIFICATIONS CITY FACILITIES CITY SPONSORED EVENTS -vi- EXHIBIT E CORPORATE GUARANTEE 698/015610-0002 9568777.6 a04/26/16 -vii- AGREEMENT This Amended and Restated Agreement ("Agreement") is entered into to be effective as of the 1st day of July 2016, 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 and Contractor previously entered into that certain Agreement between City of La Quinta and Burrtec Waste and Recycling Services, LLC for Solid Waste Handling Services, Effective July 1, 2007 (the "Prior Agreement") and the parties wish to supersede the Prior Agreement and enter into this Amended and Restated Agreement between City of La Quinta and Burrtec Waste and Recycling Services, LLC for Solid Waste Handling Services, Effective July 1, 2016. E. 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 collection, transportation and/or disposal of hazardous materials that may occur in connection with Contractor's performance under this Agreement. 698/015610-0002 9568777.6 a04/26/16 -1- F. 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 341 "AB 341" shall mean collectively the act to amend Sections 41730, 41731, 41734, 41735, 41736, 41800, 42926, 44004, and 50001 of, to add Sections 40004, 41734.5, and 41780.01 to, to add Chapter 12.8 (commencing with Section 42649) to Part 3 of Division 30 of, and to add and repeal Section 41780.02 of, the California Public Resources Code, which mandates businesses and public entities generating four (4) cubic yards or more of waste per week and multifamily residential dwellings with five (5) units or more to recycle. 2.2 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. 2.3 AB 1826 "AB 1826 shall mean an act to add Chapter 12.9 (commencing with Section 42649.8) to Part 3 of Division 30 of the Public Resources Code, which mandates recycling of Organic Waste by businesses. 2.4 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 698/015610-0002 9568777.6 a04/26/16 -2- 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. 2.5 Animal Waste "Animal Waste" shall mean animal carcasses, dead animals, and/or parts or portions of dead animals. Animal Waste shall not include manure. 2.6 Bins "Bins" shall mean a metal Container, including dumpsters, compactors, and any similar such devices with a capacity of under ten (10) cubic yards. 2.7 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. 2.8 CalRecycle "CalRecycle" means California's Department of Resources Recycling and Recovery. 698/015610-0002 9568777.6 a04/26/16 -3- 2.9 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. 2.10 City "City" shall mean the City of La Quinta, a municipal corporation, located in Riverside County, California. 2.1 1 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. 2.12 City Manager "City Manager" shall mean the City Manager of the City of La Quinta or his or her designee. 2.13 Collect/Collection "Collect" or "Collection" shall mean to take physical possession of, transport, and remove Solid Waste from a premises. 2.14 Commercial Premises "Commercial 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. 2.15 Container "Container" means any and all types of Solid Waste receptacles, including Carts, Bins, and receptacles provided by Customers. 2.16 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. 698/015610-0002 9568777.6 a04/26/16 -4- 2.17 Customer "Customer" shall mean any person receiving Solid Waste Handling Services from Contractor within the Franchise Area. 2.18 Dwelling Unit "Dwelling Unit" shall have the meaning set forth in the Municipal Code. 2.19 Effective Date "Effective Date" shall mean July 1, 2016. 2.20 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 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 seq.; 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 seq.; 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 seq.; as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 2.21 Food Waste "Food Waste" means food that is discarded or uneaten, acquired for animal or human consumption, is separated from municipal solid waste stream, and that does not meet the definition of "agricultural material." Food material may include material food facilities such as grocery stores, restaurants, institutional cafeterias (schools and hospitals) or residential food scrap collection 2.22 Franchise Area "Franchise Area" shall mean all Premises within the City Limits, including Premises which may be annexed and thereby added to the City Limits following the Effective Date. 2.23 Franchise Fee "Franchise Fee" shall mean the franchise fee set forth and more fully defined in Section 11 hereof. 698/015610-0002 9568777.6 a04/26/16 -5- 2.24 Green Waste "Green Waste" means leaves, grass, weeds, and wood materials from trees and shrubs (not more than six (6) inches in diameter or 48 inches in length) and similar materials generated at the Premises. 2.25 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 Fees, 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, or (2) AB 939 Fees, as defined herein, paid to City. 2.26 Hazardous Substance "Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated or 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 seq.(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 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. 2.27 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 seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. 698/015610-0002 9568777.6 a04/26/16 -6- 2.28 Multi -Family Dwelling "Multi -Family Dwelling" means either (i) any building or lot containing five (5) 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. 2.29 Municipal Code "Municipal Code" shall mean City's Municipal Code. 2.30 Organic Waste "Organic waste" means food waste, green waste, landscape and pruning waste, nonhazardous wood waste, and food -soiled paper waste that is mixed in with food waste. 2.31 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. 2.32 Premises "Premises" shall mean any land, building, and/or structure within the City Limits where Solid Waste is generated or accumulated. 2.33 Recyclable Material "Recyclable Material" or "Recyclables" shall mean that Solid Waste discarded within the Franchise Area which is capable of being recycled. 2.34 Residential Premises "Residential Premises" shall mean all premises upon which Dwelling Units exist. 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. 2.35 Rolloff Box "Rolloff Box" means Solid Waste Collection Containers of ten (10) yards or larger, including compactors. 698/015610-0002 9568777.6 a04/26/16 -7- 2.36 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. 2.37 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. 2.38 Solid Waste Handling Services "Solid Waste Handling Services" means the Collection, transfer, transport, recycling, processing, and disposal of Solid Waste. 2.39 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. 2.40 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 construction, demolition, cleanup or other projects, and by use of temporarily placed Bins or Rolloff Boxes. 2.41 Term "Term" shall have the meaning ascribed in Section 6 of this Agreement. 698/015610-0002 9568777.6 a04/26/16 -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 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 Notwithstanding 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; (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; 698/015610-0002 9568777.6 a04/26/16 -9- (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. 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 Agreement as of the Effective Date, agrees to waive any and all 698/015610-0002 9568777.6 a04/26/16 -10- rights under the Prior Agreement, 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 Agreement pertaining to insurance, indemnification, or other legal obligations to City or Customers (as opposed to obligations to provide service pursuant to the terms thereof), or from any obligation set forth in the Prior Agreement 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 Agreement. SECTION 6. TERM The term of this Agreement (the "Term") shall be for the period of time commencing on July 1, 2016, and ending at midnight on June 30, 2026, unless this Agreement is terminated sooner pursuant to Section 18 hereof, or otherwise. 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: 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. 698/015610-0002 9568777.6 a04/26/16 -11- 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 8.1.1 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 good 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. 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, 698/015610-0002 9568777.6 a04/26/16 -12- 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 Organic 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 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 question 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. 698/015610-0002 9568777.6 a04/26/16 -13- (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 one lost or stolen Cart annually at no charge. For each replacement of a lost or stolen Cart greater than one annually, Contractor shall be entitled to charge Customers an amount that does not exceed that set forth in Exhibit A. (H) 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 Fifty five dollars ($55.00) 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) hours 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. (K) At a Customer's request, Contractor shall provide Bins with locking lids and locks. 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 - 698/015610 -0002 9568777.6 a04/26/16 -14- 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 outlined in 8.2.2 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 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 Agreement 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. 698/015610-0002 9568777.6 a04/26/16 -15- 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, Contractor may 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; 698/015610-0002 9568777.6 a04/26/16 -16- 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 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. 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. 8.2.6 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 receiving recycling services as described herein at no additional charge. To receive recycling services, the homeowner's association governing the community at which Manual 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 community in question. Communities already receiving Manual Service and Recycling Crate Collection under the Prior Agreement 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 and may be charged at rates that do not exceed the maximum rates for commercial bin recycling set forth in Exhibit A. 8.2.8 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 698/015610-0002 9568777.6 a04/26/16 -17- 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 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. 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 once per week, unless the management of the Multi -Family Dwellings requests and authorizes Collection of Recycling Bins more than 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. Multi -Family Dwellings which require Recycling Bins and/or Rolloff Box for Collection of Recyclable Material may be charged 698/015610-0002 9568777.6 a04/26/16 -18- at rates that do not exceed the maximum rates for commercial bin recycling or rolloff boxes set forth in Exhibit A. 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 milk 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. In addition to the foregoing paragraph, Contractor shall provide a source -separation recycling program to all Premises with Multi -Family Dwellings (the "Multi -Family Dwelling Recycling Program") that meets the standards required under AB 341. Contractor shall assist the City in identifying Multi -Family Dwelling Customers that are not in compliance with the recycling requirements set forth in AB 341. Contractor shall provide periodic on-site visits to such Premises to offer and promote recycling services as required, attempt to resolve any logistical detriments to providing these services, and notify and request assistance from the City for potential follow up action where there is a repeated refusal to implement Collection services for Recyclable Material. City agrees to provide reasonable assistance to Contractor, which may include adding its name to materials prepared for distribution to Customers regarding AB 341 requirements, consideration of ordinances which may assist with gaining compliance with AB 341 requirements, and occasional participation by City personnel in meetings with Customers who repeatedly refuse to implement Contractor's Multi -Family Dwelling Recycling Program. Contractor shall be responsible for ensuring that its Multi -Family Dwelling Recycling Program, combined with its other programs, enables it to achieve the requirements of AB 341 and other recycling provisions in this Agreement, and Contractor may be required to modify its program from time to time, at no additional cost to the City or Multi -Family Dwelling Customers, as may be necessary to meet requirements under AB 341. Contractor shall produce, keep current, and provide public information specifically outlining its Multi -Family Dwelling Recycling Program, which shall specifically include the annual publication and distribution of a brochure describing this service to all applicable Customers in City. Contractor may charge Customers for services provided pursuant to its Multi - Family Dwelling Recycling Program that require Recycling Bins and/or Rolloff Box for Collection of Recyclable Material at rates that do not exceed the maximum rates for commercial bin recycling or rolloff boxes set forth in Exhibit A. 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 698/015610-0002 9568777.6 a04/26/16 -19- (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 in City. The County of Riverside may give to the City a disposal credit for participating in the Bulky Item program. Contractor will be entitled to receive from City any said credit from the County of Riverside relating to Bulky Item clean up services. 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. 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. 8.2.17 Residential Non -Controlled Medication Collection Program On or before November 1, 2016, Contractor shall design and present a program to City for the collection of unused non -controlled medicines (the "Non -Controlled Medication 698/015610-0002 9568777.6 a04/26/16 -20- 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 drop off unused medication (excepting controlled substances) to a specific Collection location, in specialized packaging provided by Contractor, and/or deliver unused medication (excepting controlled substances) 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 [Intentionally Omittedl 8.2.19 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. 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 Commercial Carts As an alternative to the requirements of Section 8.3.1, Contractor shall offer Collection in Refuse Carts or Recycling Carts to Commercial Customers that do not have space for, or do not 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. 698/015610-0002 9568777.6 a04/26/16 -21- 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, within which at least those Recyclable Materials set forth in Section 8.2.5 may be placed for Collection. Customers at Commercial Premises (Commercial Customers) utilizing Refuse Bins or Rolloff Boxes, and who choose to participate in Contractor's Recycling programs, shall be entitled to receive, at no charge until July 1, 2017, and thereafter at rates that do not exceed the maximum rates established in Exhibit A, by the City in its reasonable discretion based upon information provided by Contractor regarding the costs of providing such services, their choice of either ninety-six (96) gallon Recycling Carts or Recycling Bins (with a capacity of two (2), three (3), four (4) or six (6) yards), within which at least those Recyclable Materials set forth in Section 8.2.5 may be placed for Collection. Commercial Customers that generate four (4) cubic yards or more of commercial solid waste per week are required to arrange for recycling services per AB 341 mandate. 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.) Prior to July 1, 2017, Contractor shall contact each Commercial Customer and perform a waste and recycling assessment. Contractor shall work with each Commercial Customer to evaluate and recommend the most cost effective levels of solid waste services with the implementation of beneficial recycling programs for that Customer's Recyclable Material. Contractor shall include an assessment of each Commercial Customer's waste and recycling performance in the quarterly reports to the City. In addition to the foregoing paragraph, Contractor shall provide a source -separation recycling program to all Customers at Commercial Premises (Commercial Customers) (the "Commercial Customer Recycling Program") that meets the standards required under AB 341. Contractor shall assist the City in identifying Commercial Customers that are not in compliance with the recycling requirements set forth in AB 341. Contractor shall provide periodic on-site visits to such Premises to offer and promote recycling services as required, attempt to resolve any logistical detriments to providing these services, and notify and request assistance from the City for potential follow up action where there is a repeated refusal to implement Collection services for Recyclable Material. City agrees to provide reasonable assistance to Contractor, which may include adding its name to materials prepared for distribution to Customers regarding AB 341 requirements, consideration of ordinances which may assist with gaining compliance with AB 341 requirements, and occasional participation by City personnel in meetings with Customers who repeatedly refuse to implement Contractor's Commercial Customer Recycling Program. Contractor shall be responsible for ensuring that its Commercial Customer Recycling Program, combined with its other programs, enables it to achieve the requirements of AB 341 and other recycling provisions in this Agreement, and Contractor may be required to modify its program from time to time, at no additional cost to the City or Commercial Customers, as may be necessary to meet requirements under AB 341. Contractor shall produce, keep current, and provide public information specifically outlining its Commercial Customer Recycling Program, which shall specifically include the annual publication and distribution of a brochure describing this service to 698/015610-0002 9568777.6 a04/26/16 -22- all applicable Customers in City. Contractor may charge Commercial Customers for services provided pursuant to its Commercial Customer Recycling Program at rates that do not exceed the maximum rates set forth in Exhibit A. 8.3.4 Organic (Food Waste/Greenwaste) Waste Diversion Program Contractor will develop and provide an organic waste recycling program that at minimum meets the standards required under Assembly Bill 1826 from the 2013-2014 Regular Session of the California Legislature (Chapter 12.9, Commencing with Section 42469.8), Statutes 2014 ("AB 1826"), which requires a local government agency, businesses, and multifamily dwellings with more than five units to recycle their organic waste (consisting of food waste, Green Waste, landscape and pruning waste, nonhazardous wood waste, and food -soiled paper that is mixed in with food waste). Commercial customers with eight (8) or more cubic yards of organic waste must arrange for recycling services by April 1, 2016; four (4) or more cubic yards of organic waste by January 1, 2017; commercial customers that generate four (4) or more cubic yards of solid waste must arrange for organic recycling services by January 1, 2019; and if implemented by the state, commercial customers that generate two (2) or more cubic yards of solid waste must arrange for recycle program. Contractor shall be responsible for identifying customers required to participate in the organic waste recycle program. Contractor will offer organic waste collection in accordance with the approved "Commercial Foodwaste Rates" set forth in Exhibit A or as may be adjusted under the terms of this Agreement. Contractor shall be responsible for ensuring that the organics waste recycle meets the requirements of AB 1826 and may be required to modify its program from time to time (subject to rate adjustments pursuant to Section 24 of this Agreement). Contractor shall produce, keep current, and provide public information specifically outlining its organics waste recycle program 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 Temporary 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. 698/015610-0002 9568777.6 a04/26/16 -23- (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 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 and 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 if) 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 course, 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. 698/015610-0002 9568777.6 a04/26/16 -24- 8.5 Recycling Obligations and Public Education Program 8.5.1 Minimum Requirements for Delivery of Recyclable Materials and Green Waste All 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 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 CalRecycle 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 CalRecycle and/or the County of Riverside in relation thereto. 698/015610-0002 9568777.6 a04/26/16 -25- 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 341, AB 939 and AB 1826, and (ii) 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 341, AB 939 and AB 1826, 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 CalRecycle 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 341, AB 939 or AB 1826 and such failure or refusal prevents or delays City from submitting reports required by AB 341, AB 939 or AB 1826 in a timely manner; or (2) the source reduction and recycling goals, diversion goals, program implementation requirements, or any other requirements of AB 341, AB 939 or AB 1826 are not met with respect to the waste stream Collected under this Agreement; (B) assist City in responding to inquiries from CalRecycle; (C) assist City in preparing for, and participating in, the CalRecycle 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 CalRecycle relating to City's compliance with AB 341, AB 939 and AB 1826; (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 341, AB 939 and AB 1826; (G) provide City with recycling, source reduction, and other AB 341, AB 939 and AB 1826 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 341, AB 939 and AB 1826; (I) be responsible for and pay, any fees, penalties or other costs imposed against the City by CalRecycle, and indemnify and hold harmless City from and against any fines, penalties, or other liabilities, levied against it for violation of AB 341, AB 939 and AB 1826's diversion requirements, or violation of any other provision of AB 341, AB 939 or AB 1826, arising from or in any way related to Contractor's performance of its obligations under this Agreement. 698/015610-0002 9568777.6 a04/26/16 -26- 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 perform a characterization study by March 31, 2017. The study will be to determine weights and volumes of Solid Waste Collected and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/processed to satisfy the requirements of AB 939. Contractor will perform additional studies every five (5) years thereafter. Contractor will submit study data and results to City within 30 -days after study completion. 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 among 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, using two shred trucks per event, 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 not for profit 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 Roll off Boxes as applicable, as well as Containers to Collect source -separated Recyclable Materials. Contractor shall also provide up to forty (40) portable toilets per calendar year for events sponsored by the City, or for use in connection with other activities as determined by City. Portable toilets can be serviced up to two (2) times per event. 698/015610-0002 9568777.6 a04/26/16 -27- 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. 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 Litter Abatement 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 period, 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 698/015610-0002 9568777.6 a04/26/16 -28- 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 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 8.8 Street Sweeping Pursuant to this Agreement, Contractor shall cause to be provided street sweeping services within the City, which may be provided through the use of subcontractor(s) approved by the City Manager in his/her reasonable discretion, and Contractor shall cause to be furnished all labor, equipment, and materials necessary for the satisfactory performance of the street sweeping services. All street sweeping shall be in compliance with applicable law, including that any vehicles will be compliant with SCAQMD rules 1186 and 1186.1. Contractor shall dispose of or cause the disposal of all refuse collected by hauling the material to a legally established refuse disposal site, at a site approved by the City. In explanation of the foregoing, street sweeping services are to be provided to ameliorate the impacts of inadvertent spillage of Solid Waste onto City's streets and rights-of-way, as well as the impacts of Solid Waste which escapes from Containers due to wind and other natural conditions, Street sweeping shall commence following the Effective Date on such date as is directed by the City Manager, bearing in mind City currently completes street sweeping services with its own equipment and personnel. The level of street sweeping service Contractor (or City -approved subcontractor) provides City under this Agreement shall, at a minimum, be equal to the level of street sweeping service the City was receiving immediately prior to the Effective Date of this Agreement. At the written request of the City Manager, Contractor (or City -approved subcontractor) shall cause to be provided street sweeping in connection with any new streets added to the City such as if City annexes additional territory beyond its current city limits and, in addition to the rates chargeable under Section 8.8.2 below, Contractor may invoice City for any costs incurred for the new streets at the same rate per curb mile proposed by Contractor (or City -approved subcontractor) as of the Effective Date. If Contractor uses a City -approved subcontractor for street sweeping services, its subcontractor may invoice the City directly at the above noted per curb mile rate for the new streets. 8.8.1 General Provisions re Removal of Debris from Streets Contractor agrees to cause to furnish all tools, equipment, apparatus, facilities, expertise, labor, and materials (including water), and cause to be performed all work necessary to sweep all public streets, alleys, cross gutters, and medians in the City (the "Street System") so as to remove 698/015610-0002 9568777.6 a04/26/16 -29- debris therefrom in a good and workmanlike manner. Said work shall be performed and completed to the reasonable satisfaction of the City Manager, and consistent with industry standards and the Service Standard Memorandum. 8.8.2 Costs Attributable to Street Sweeping Notwithstanding any provisions in this Agreement to the contrary, the maximum cost that Contractor (or City -approved subcontractor) may charge City for street sweeping services shall not exceed One Hundred Fifty One Thousand Four Hundred Twenty Four Dollars ($151,424.00) per year ("Maximum Street Sweeping Costs"), adjusted by the CPI as set forth in Section 24.3 of this Agreement. Street sweeping services shall be integrated into the service components and rate structure set forth in Section 24 of this Agreement. 8.8.3 Frequency of Sweeping The entire Street System shall be swept once every two weeks, covering approximately 224 curb miles per two week cycle, with the intent that to the degree feasible streets will be swept on the day after Solid Waste Collection services are provided to the adjacent Premises. In addition to Contractor's causing of sweeping of City's entire Street System, and upon written request by City, Contractor shall also cause to be provided sweeping services following: (1) events within City Limits, including, but not limited to, parades, community celebrates, and other activities involving the use of City streets, and (2) accidents and emergencies which necessitate sweeping of streets during regular sweeping hours. Contractor (or City -approved subcontractor) shall provide up to ten (10) hours per year of additional street sweeping for events, accidents and emergencies (meaning actual sweeping time, and not including travel time to and from service locations), upon request of the City Manager, at no cost to the City. 8.8.4 Operations; Compliance With Laws and Regulations The street sweeping methods and procedures used by the Contractor (or City -approved subcontractor) shall be consistent with the current standards in the industry, in compliance with all federal, state and local laws and regulations, and shall be subject to the approval of the City Manager. 8.8.5 Schedule and Routes Street sweeping routes and schedules are to be developed by Contractor (or City -approved subcontractor) and approved by the City Manager. Contractor (or City -approved subcontractor) shall endeavor to set routes and schedules which follow the weekly Collection of Solid Waste by Contractor. The City Manager shall approve the hours during which the sweeping shall be performed and may direct Contractor to cause to be changed the schedule to meet the needs of City to ensure adequate street sweeping. The City Manager may grant Contractor (or City -approved subcontractor) an exception to the above sweeping schedule due to extreme weather conditions; provided, however, Contractor 698/015610-0002 9568777.6 a04/26/16 -30- (or City -approved subcontractor) shall be required to perform extra sweeping work caused by the extreme weather conditions without any additional charge to City. In the event Contractor (or City -approved subcontractor) is prevented from completing sweeping, in accordance with the schedule approved by the City Manager, due to equipment breakdown or for reasons other than extreme weather conditions, Contractor (or City -approved subcontractor) shall be required to complete the sweeping no later than by the end of next business day. 8.8.6 Emergency Services Contractor (or City -approved subcontractor) shall provide emergency contact information and a 24-hour on call telephone number. Contractor (or City -approved subcontractor) shall provide services on an emergency basis outside of the sweeping hours and routes established under this Agreement when requested by the City Manager (or designee). Contractor (or City -approved subcontractor) shall provide up to ten (10) hours per year of emergency sweeping services (meaning actual sweeping time, and not including travel time to and from service locations), after regular business hours, upon request of the City Manager, at no cost, it being expressly understood by City and Contractor that the City intends to continue to use the City's existing street sweeping equipment and personnel on a limited basis, which includes off -hour emergencies, but there may be some instances during a year when the City Manager may request additional emergency street sweeping services that are not capable of being completed by the City's existing equipment or personnel. 8.8.7 Complaints and City Contact Contractor shall cause to be resolved complaints related to street sweeping, including by re -sweeping areas not properly serviced if necessary, within 24 hours. Contractor shall cause to be provided a contact person with whom the City may directly communicate to discuss street sweeping issues, and if a subcontractor is used by Contractor for sweeping City may directly communicate with said subcontractor and give direction consistent with the terms hereof. 8.8.8 Sweeping Vehicle Speed Street sweeping vehicles shall not operate at a speed that exceeds the manufacturer's recommendations for the sweeper and/or the speed for good street sweeping practice as determined by the City Manager. In no event shall vehicle speed exceed ten (10) miles per hour during sweeping operations. 8.8.9 Safety All safety related defects determined to exist on any sweeping vehicle shall be corrected by Contractor (or City -approved subcontractor) prior to the vehicle being utilized for further street sweeping operations. 8.8.10 Disposal of Refuse Contractor (or City -approved subcontractor) shall dispose of all Solid Waste Collected in the course of street sweeping in the same manner as required for Solid Waste Collected in the course of providing Solid Waste Collection services. Contractor (or City -approved subcontractor) 698/015610-0002 9568777.6 a04/26/16 -31- shall not temporarily stockpile street sweeping debris on any public property pending its ultimate disposal. 8.8.11 Contractor's Street Sweeping Equipment (A) Type. Street sweeping equipment shall be a type consistent with the current standards in the industry and shall be subject to the approval of the City Manager. In addition, sweeping shall be conducted by either vacuum sweeper or combination sweepers. Mechanical broom sweeper may be approved by the City for certain heavy sweeping areas. All street sweepers utilized in this Agreement must be alternative fuel vehicles and meet all federal, state and local regulations including but not limited to SCAQMD Rules 1186 and 1186.1; (B) Quantity. There shall be a sufficient number sweepers to provide the level of services required by the terms hereof; (C) Condition. All vehicles and equipment used to perform street sweeping services shall be kept and maintained in good mechanical condition and working order. Any of the primary sweepers which need to be permanently replaced due to age and the condition of the vehicle shall be replaced with a new vehicle. In addition, the following shall apply: (i) Said equipment shall not be more than twenty (20) years old unless specifically approved by the City Manager in his/her reasonable discretion; (ii) Said equipment shall be kept clean at all times; (iii) Said equipment shall be painted in a fashion approved by the City Manager; and, (iv) Mechanical brushes and brooms shall be maintained in proper condition and shall be replaced as recommended by the manufacturer or when pick-up ability becomes impaired, whichever occurs sooner. (D) Inspection. All equipment utilized for street sweeping operations shall be subject to inspection by the City Manager at any time. 8.8.12 Contractor's Street Sweeping Personnel (A) Qualifications. Contractor (or City -approved subcontractor) shall employ competent and experienced drivers and mechanics for the performance of street sweeping operations ("Street Sweeping Personnel"). (B) Uniforms. Street Sweeping Personnel shall wear a clean uniform bearing the company's name, or other suitable clothing as approved by City Manager. (C) Identification of Employees. Contractor (or City -approved subcontractor) shall provide identification badges, cards or similar devices, for all of its Street Sweeping Personnel 698/015610-0002 9568777.6 a04/26/16 -32- who may make personal contact with residents of the City. City may require Contractor (or City - approved subcontractor) to notify Customers yearly of the form of said identification. (D) Employee List. Contractor (or City -approved subcontractor) shall provide City a list of its Street Sweeping Personnel within five (5) business days of City's request, and Contractor (or City -approved subcontractor) shall update the list to keep it current. (E) Driver's License. Street Sweeping Personnel shall, at all times, carry a valid operator's license for the type of vehicle he or she is operating. (F) Discontinued Use of Unsatisfactory Employees. No Street Sweeping Personnel 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 (or City -approved subcontractor) that such person is determined by City to be intemperate, discourteous, disorderly, inefficient, or otherwise objectionable. (G) Training and Legal Compliance. Contractor (or City -approved subcontractor) shall provide operating and safety training for all of its Street Sweeping Personnel that meets minimum OSHA, and all other applicable standards. 8.8.13 Contract Administration (A) Verification. At the discretion of the City Manager, the City may require the installation of odometers, time clocks, or other specialized equipment to verify work performed. (B) Monthly Report. Contractor (or City -approved subcontractor) shall keep a daily log of streets swept. Said log shall state the area and the number of curb miles swept. A monthly report shall be prepared from the daily log and submitted to the City Manager. Alternatively, a website/internet based reporting system may be established if deemed to be acceptable to the City Manager. 8.8.14 Subcontracting Contractor may utilize the services of a subcontractor to perform the services and meet the obligations set forth in this Section 8.8 if it first obtains the prior written consent of the City Manager. Any such subcontracting shall be subject to such reasonable conditions as may be required by the City Manager, and shall be subject to the following: (1) Contractor shall be responsible to ensure any permitted subcontractor complies with all applicable terms and conditions of this Agreement, (2) any permitted subcontractor shall be required to provide a written agreement to City, in a form approved by the City Attorney, demonstrating its agreement to be bound by all applicable provisions of this Agreement, including specifically, without limitation, the insurance and indemnity provisions set forth herein (although the insurance limits may be adjusted to $5,000,000 rather than the $10,000,000 otherwise required), and (3) Contractor shall be responsible for the actions and/or omissions of any permitted subcontractor as if Contractor were carrying out the services in question itself. 698/015610-0002 9568777.6 a04/26/16 -33- 8.9 Pilot Programs The City may direct Contractor to perform additional services (including new diversion programs, etc.) or modify the manner in which it performs existing services or bills for services. Pilot programs and innovative services which may entail new Collection methods, different kinds of services and/or new requirements for Customers, and alternative rate structures are included among the kinds of changes which the City may direct. Contractor may receive an adjustment in its compensation based on its reasonable costs for providing such additional or modified services as agreed between the City and Contractor. SECTION 9. MINIMUM 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. Contractor shall use due care to prevent Solid Waste from being spilled or scattered during the Collection or transportation process. If any Solid Waste is spilled, Contractor shall promptly clean up all spilled materials. Each Collection vehicle shall carry a broom and shovel at all times for this purpose. Contractor shall not transfer loads from one vehicle to another on any public street or private roadway, unless it is necessary to do so because of mechanical failure or damage to a Collection vehicle which renders it inoperable. The Contractor shall clean up litter in the immediate vicinity of any Solid Waste storage area (including the areas where Containers are delivered for Collection) whether or not Contractor has caused the litter. Contractor shall notify the Customer and the City after the second occurrence. If a second notice is delivered within six (6) months of the first notice, and if Contractor is required to clean up the Customer's property, City either may require the Customer to accept and pay for increased service (such as, a larger Container or more frequent Collections as determined by the City in its reasonable discretion) or may authorize Contractor to bill the Customer for additional clean-ups at rates established by City, or both. Contractor shall cover all open Containers during transport to the disposal site. 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 698/015610-0002 9568777.6 a04/26/16 -34- Coast 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 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. 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. (F) 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. (G) 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. 698/015610-0002 9568777.6 a04/26/16 -35- (H) 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 equipment on hand to ensure adequate vehicle maintenance and timely and continuous performance of the services contemplated by this Agreement. (I) 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 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. (J) 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. (K) 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. (L) Contractor shall utilize Collection Vehicles of a size, weight, nature, and type so as to not be 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. (M) 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. (N) 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 Manager 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 698/015610-0002 9568777.6 a04/26/16 -36- 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 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 698/015610-0002 9568777.6 a04/26/16 -37- 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 p.m. Monday through Friday, holidays excepted. At least one responsible and qualified representative of Contractor, capable of communicating in English, shall be present 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 communicate 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 698/015610-0002 9568777.6 a04/26/16 -38- 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. 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. 698/015610-0002 9568777.6 a04/26/16 -39- 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. 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, AB341 and AB 1826. 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 outreach 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. Contractor will report its public education activities to City on a quarterly basis. 10.8.2 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. 698/015610-0002 9568777.6 a04/26/16 -40- (3) Corrective Action Notice — Contractor shall develop a corrective action notification 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, 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 Administrative Cost Reimbursement Contractor shall reimburse City for: (1) its annual consultant costs in an amount equal to One Hundred and One Thousand Six Hundred and Seventy Five Dollars ($101,675.00) [adjusted annually on January 1 by the change in the Consumer Price Index for All Urban Consumers, CUURA421 SA0 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 ninety (90) days. If any invoice for the Administrative Cost Reimbursement is not paid on or before the ninetieth (90th) 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. 11.2 Franchise Fee Contractor shall pay to City, a franchise fee equal to ten percent (10%) of Contractor's annual Gross Receipts each year, or portion thereof, during the entire Term of this Agreement (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 ten percent (10%) of Contractor's Gross 698/015610-0002 9568777.6 a04/26/16 -41- 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. 11.3 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. 11.4 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 (excluding commercial recycling bin services — no AB 939 fee) provided to each Customer and on a monthly basis shall be as set forth on the following table: 698/015610-0002 9568777.6 a04/26/16 -42- Table 1: Monthly AB 939 Fee Calculation Customers receiving Carts or Manual Collection at Dwellings: $.10/month/Customer Rolloff Boxes: $1.00/ton of Solid Waste Collected Customers receiving refuse service in Bins: 698/015610-0002 9568777.6 a04/26/16 2 YARD BINS Pickups Per Week Monthly AB939 Fee 1 .90 2 1.63 3 2.32 4 3.02 5 3.67 6 4.41 3 YARD BINS Pickups Per Week AB939 Fee 1 1.19 2 2.14 3 3.07 4 3.95 5 4.88 6 5.77 4 YARD BINS Pickups Per Week AB939 Fee 1 1.61 2 2.72 3 3.84 4 4.97 5 6.05 6 7.13 6 YARD BINS Pickups Per Week AB939 Fee 1 2.41 2 4.09 3 5.78 4 7.48 5 9.11 6 10.76 -43- 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 sought was placed 698/015610-0002 9568777.6 a04/26/16 EXHIBIT A -44- 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 Manager 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 Manager 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 delinquent fees or service charges to be 698/015610-0002 9568777.6 a04/26/16 -45- 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: (1) by mailing payment to Contractor at such address as Contractor may designate; or (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; 698/015610-0002 9568777.6 a04/26/16 -46- (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; card. (C) allow Customers to make payments on-line (i.e., via the Internet) by a major credit 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. 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 698/015610-0002 9568777.6 a04/26/16 -47- 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 Agreement 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. (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 698/015610-0002 9568777.6 a04/26/16 -48- 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 borne 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. 698/015610-0002 9568777.6 a04/26/16 -49- 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. 698/015610-0002 9568777.6 a04/26/16 -50- 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. 698/015610-0002 9568777.6 a04/26/16 -51- 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 seventy five thousand dollars 698/015610-0002 9568777.6 a04/26/16 -52- ($75,000.00) 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, 2019, the fixed Transfer Fee shall be two hundred fifty thousand dollars ($250,000.00); (2) if the request is dated after June 30, 2019, and prior to June 30, 2020, the fixed Transfer Fee shall be two hundred thousand dollars ($200,000.00); (3) if the request is dated after June 30, 2020, and prior to June 30, 2021, the fixed Transfer Fee shall be one hundred fifty thousand dollars ($150,000.00); (4) if the request is dated after June 30, 2021, and prior to June 30, 2022, the fixed Transfer Fee shall be one hundred thousand dollars ($100,000.00); (5) if the request is dated after June 30, 2022, and prior to June 30, 2023, the fixed Transfer Fee shall be seventy five thousand dollars ($75,000.00); (6) if the request is dated after June 30, 2023, 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. 698/015610-0002 9568777.6 a04/26/16 -53- 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 Burr, 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 Manager 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 2017, 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. (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 698/015610-0002 9568777.6 a04/26/16 -54- 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) Any specific plans for provision of changed or new services by Contractor. (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 CalRecycle, 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 698/015610-0002 9568777.6 a04/26/16 -55- 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. 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 698/015610-0002 9568777.6 a04/26/16 -56- 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 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 698/015610-0002 9568777.6 a04/26/16 -57- 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 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. Contractor Initial Here City Initial He 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 (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: $150.00 698/015610-0002 9568777 6 6041261 i 6 -58- 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: (1) Monthly Reports: $100.00 per day (2) Quarterly Reports: $250.00 per day (3) Annual Reports: $350.00 per day 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. 698/015610-0002 9568777.6 a04/26/16 -59- (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 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. 698/015610-0002 9568777.6 a04/26/16 -60- 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. Contractor agrees that in such event it shall fully cooperate with City to affect such a transfer of possession for City's use. 698/015610-0002 9568777.6 a04/26/16 -61- 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; c. Determine needs for adjustment to programs; and, d. Evaluate Customer service and complaints. 698/015610-0002 9568777.6 a04/26/16 -62- 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 Term, 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; (B) Route maps for all residential routes operating in the City. 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; 698/015610-0002 9568777.6 a04/26/16 -63- (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, CalRecycle, the California Regional 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 698/015610-0002 9568777.6 a04/26/16 -64- 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 Agreement. 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 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. 698/015610-0002 9568777.6 a04/26/16 -65- 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, 2017, 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, CUURA421 SA0 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. In addition to the rate adjustments provided for in the paragraph above in this Section 24.3, the maximum residential rates maybe increased by $0.25 on July 1, 2017, $0.25 on July 1, 2018, and $0.14 on July 1, 2019, as long as Contractor (or City -approved subcontractor) provides street sweeping services pursuant to Section 8.8 of this Agreement, commencing on or before August 1, 2016, and continuously for the Term of this Agreement. If Contractor (or City -approved subcontractor) fails or ceases to provide street sweeping services, or otherwise is in default (without timely cure) of this Agreement with respect to street sweeping services, before July 1, 2017, then the maximum residential rates may not be increased by $0.25 (or fractional amount thereof) on July 1, 2017. If Contractor (or City -approved subcontractor) fails or ceases to provide street sweeping services, or otherwise is in default (without timely cure) of this Agreement with respect to street sweeping services, on or after July 1, 2017 but before July 1, 2018, then the maximum residential rates may not be increased by an additional $0.25 (or fractional amount thereof) on July 1, 2018, and the $0.25 increase (if any, or fractional amount thereof) from fiscal year 2017/18 shall no longer be included in the maximum residential rates. If Contractor (or City - approved subcontractor) fails or ceases to provide street sweeping services, or otherwise is in default (without timely cure) of this Agreement with respect to street sweeping services, on or after July 1, 2018 but before July 1, 2019, then the maximum residential rates may not be increased by an additional $0.14 (or fractional amount thereof) on July 1, 2019, and the $0.25 increase (if any, or fractional amount thereof) from fiscal year 2018/19 and the $0.25 increase (if any, or fractional amount thereof) from fiscal year 2017/18 shall no longer be included in the maximum residential rates. If Contractor (or City -approved subcontractor) fails or ceases to provide street sweeping services, or otherwise is in default (without timely cure) of this Agreement with respect to street sweeping services, on or after July 1, 2019 but before the expiration of the Term of this Agreement, 698/015610-0002 9568777.6 a04/26/16 -66- then the $0.14 increase (if any, or fractional amount thereof) from fiscal year 2019/20, and the $0.25 increase (if any, or fractional amount thereof) from fiscal year 2018/19, and the $0.25 increase (if any, or fractional amount thereof) from fiscal year 2017/18 shall no longer be included in the maximum residential rates, starting on either the date that street sweeping services are no longer being provided by Contractor (or City -approved subcontractor) or the date there is a default with no cure within the allowable period as set forth in this Agreement. Provided Contractor (or City -approved subcontractor) continues to provide street sweeping services pursuant to this Agreement, then the CPI adjustments allowable in the first paragraph of this Section 24.3 shall include the increases in maximum residential rates permitted for street sweeping services pursuant to this paragraph of Section 24.3. 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, Green Waste materials and street sweeping services. 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 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. 698/015610-0002 9568777.6 a04/26/16 -67- 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 or Green 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 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, alternative 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 698/015610-0002 9568777.6 a04/26/16 -68- 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. 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 698/015610-0002 9568777.6 a04/26/16 -69- 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. 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, attorneys' 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, 698/015610-0002 9568777.6 a04/26/16 -70- 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. (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()), 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. 698/015610-0002 9568777.6 a04/26/16 -71- (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 landfilled) for not less than five (5) years following the termination of this Agreement, and agrees to notify City's Risk Manager and City Attorney 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 2017. The audit shall at a minimum include, but not be limited to, an examination of all Gross Receipts and Franchise Fees paid thereon. 698/015610-0002 9568777.6 a04/26/16 -72- 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; 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: 698/015610-0002 9568777.6 a04/26/16 -73- 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. 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 698/015610-0002 9568777.6 a04/26/16 -74- 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 Majeure 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. 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. 698/015610-0002 9568777.6 a04/26/16 -75- 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 CalRecycle ("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: To Contractor: City of La Quinta Attn: City Manager 78-495 Calle Tampico La Quinta, CA 92253 Fax: (760) 777-7101 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 698/015610-0002 9568777.6 a04/26/16 -76- 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. 30.14 City'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. 698/015610-0002 9568777.6 a04/26/16 -77- 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. 698/015610-0002 9568777.6 a04/26/16 "Signature page to follow" -78- ATTEST: lav: Susan Maysels, City Jerk APPROVED AS TO FORM: By: let;... e - William H. Ihrke, City Attorney 698/015610-0002 9568777.6 a04/26/16 "City" NT "Contractor" ity Manager BURRTEC WASTE AND RECYCLING SERVICES, LLC. By: Its: SIGNED IN COUNTERPART -79- ATTEST: SIGNED IN COUNTERPART By: Susan Maysels, City Clerk APPROVED AS TO'FORM: SIGNED IN COUNTERPART By: William H. Ihrke, City Attorney 698/OI56I0-0002 9568777.6 .04/26/16 "City" CITY OF LA QUINTA STONED IN COUNTERPART By: Frank J. Spevacek, City Manager "Contractor" BURRTEC SERVICE By: lis: -79- RECYCLING EXHIBIT A MAXIMUM RATE SCHEDULE FOR SOLID WASTE HANDLING SERVICES: ATTACHED 698/015610-0002 9568777.6 a04/26/16 EXHIBIT A -1- City of La Quinta Maximum Rates For Single Family Dwellings — Monthly* Effective July 1, 2016 Single Family Dwellings Service Component Disposal Component AB 939 Fees Total Monthly Rate* Total Yearly Rate Automated or Manual Collection - Tax Roll Billing $ 8.94 $ 3.81 $ 0.10 $ 12.85 $ 154.20 Automated or Manual Collection - Direct Billing $ 10.37 $ 3.81 $ 0.10 $ 14.28 $ 171.36 Additional Refuse Cart $ 6.71 $ 6.71 $ 80.52 Cart Replacement - ( Per Section 8.1.8 F) one time fee $ 56.30 $ 56.30 n/a Bulky Item: in excess of 4 items or non -regular collection day** $ 16.89 $ 16.89 n/a Backyard Service Basic Additional Charge for Backyard Service $ 6.33 $ 6.33 $ 75.96 Charge for additional Container/Cart per Section 8.2.3 $ 6.33 $ 6.33 $ 75.96 PGA — 2"d Pick -Up Day $ 7.72 $ 3.81 $ 11.53 $ 138.80 Surcharge for HOA's Desiring Monday Service 10% of Service Component 10% of Service Component *The maximum rates on this sheet shall apply to all customers receiving automated or manual service utilizing 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. City of La Quinta Maximum Rates for Customers Receiving Service in Bins - Commercial or Residential Effective 7.1.2016 2 yd Bin Service Pickups Per Week Service Component Disposal Component Monthly Customer Rate 1 x per week $ 60.45 $ 28.60 $ 89.05 2 x per week $ 105.77 $ 54.52 $ 160.29 3 x per week $ 148.88 $ 80.61 $ 229.49 4 x per week $ 191.80 $ 106.46 $ 298.26 5 x per week $ 235.37 $ 127.11 $ 362.48 6 x per week $ 278.13 $ 158.13 $ 436.26 Extra Empty* $ 32.61 $ 7.16 $ 39.77 3 yd Bin Service Pickups Per Week Service Component Disposal Component Monthly Customer Rate 1 x per week $ 76.25 $ 40.98 $ 117.23 2 x per week $ 131.90 $ 79.09 $ 210.99 3 x per week $ 186.50 $ 116.13 $ 302.63 4 x per week $ 237.18 $ 153.09 $ 390.27 5 x per week $ 290.87 $ 190.90 $ 481.77 6 x per week $ 342.93 $ 227.62 $ 570.55 Extra Empty* $ 44.40 $ 10.23 $ 54.63 4 yd Bin Service Pickups Per Week Service Component Disposal Component Monthly Customer Rate 1 x per week $ 104.17 $ 55.17 $ 159.34 2 x per week $ 164.38 $ 103.80 $ 268.18 3 x per week $ 226.80 $ 152.23 $ 379.03 4 x per week $ 289.35 $ 201.23 $ 490.58 5 x per week $ 348.73 $ 249.52 $ 598.25 6 x per week $ 406.86 $ 297.58 $ 704.44 Extra Empty* $ 60.13 $ 13.80 $ 73.93 6 yd Bin Service Pickups Per Week Service Component Disposal Component Monthly Customer Rate 1 x per week $ 156.35 $ 82.07 $ 238.42 2 x per week $ 246.38 $ 157.54 $ 403.92 3 x per week $ 339.81 $ 231.19 $ 571.00 4 x per week $ 434.02 $ 304.82 $ 738.84 5 x per week $ 522.53 $ 379.80 $ 902.33 6 x per week $ 609.64 $ 452.68 $ 1,062.32 Extra Empty* $ 89.78 $ 20.52 $ 110.30 *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 $64.65 to add a locking bar to their Bin, and are subject to a charge not to exceed $24.87 each time the locking bar needs replacement. The Service Component for Customers receiving services Tess than 6 times per week and who desire service on Saturday may be increased by an amount to not to exceed $23.88. The monthly Service Component for Customers who keep Bins in locked enclosures may be increased by an amount not to exceed $18.71. 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 $33.16. CITY OF LA QUINTA Commercial Bin Recycling Rates Effective July 1, 2017 2 yd Bin Service Pickups Per Week Monthly Rate 1 x Per Week $ 33.28 2 x Per Week $ 59.91 3 x Per Week $ 85.77 4 x Per Week $ 111.47 5 x Per Week $ 135.47 6 x Per Week $ 163.05 Extra Empty* $ 18.30 3 yd Bin Service Pickups Per Week Monthly Rate 1 x Per Week $ 43.81 2 x Per Week $ 78.85 3 x Per Week $ 113.11 4 x Per Week $ 145.86 5 x Per Week $ 180.06 6 x Per Week $ 213.23 Extra Empty* $ 24.10 4 yd Bin Service Pickups Per Week Monthly Rate 1 x Per Week $ 59.55 2 x Per Week $ 100.23 3x Per Week $ 141.66 4 x Per Week $ 183.35 5 x Per Week $ 223.59 6 x Per Week $ 263.28 Extra Empty* $ 32.75 6 yd Bin Service Pickups Per Week Monthly Rate 1 x Per Week $ 89.11 2 x Per Week $ 150.96 3 x Per Week $ 213.40 4 x Per Week $ 276.13 5 x Per Week $ 337.23 6 x Per Week $ 397.03 Extra Empty* $ 49.01 * 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 $64.65 to add a locking bar to their Bin, and are subject to a charge not to exceed $24.87 each time the locking bar needs replacement. The rates 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 monthly rate for Customers who keep Bins in locked enclosures may be increased by an amount not to exceed $18.71. The monthly rate 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 $33.16. 96 -gal recycling cart will be charged at $6.25 per pick up CITY OF LA QUINTA Commercial Foodwaste Rates Effective July 1, 2016 1-64 Gallon Cart 3-64 Gallon Cart Recycling Total Recycling Total # Pick -Ups Collection Material Franchise AB -939 Monthly # Pick -Ups Collection Material Franchise AB -939 Monthly Per week Component Processing Fee Fee Rate Per week Component Processing Fee Fee Rate 1 $29.01 $19.49 $4.85 $0.48 $53.83 1 $60.92 $58.46 $11.94 $1.19 $132.51 2 $58.02 $38.97 $9.70 $0.97 $107.66 2 $130.55 $116.91 $24.75 $2.47 $274.68 3 $87.03 $58.46 $14.55 $1.45 $161.49 3 $182.77 $175.37 $35.81 $3.58 $397.53 4 $116.04 $77.94 $19.40 $1.94 $215.32 4 $243.69 $233.82 $47.75 $4.78 $530.04 5 $145.06 $97.43 $24.25 $2.42 $269.15 5 $304.62 $292.28 $59.69 $5.97 $662.55 2-64 Gallon Cart 4-64 Gallon Cart Recycling Total Recycling Total # Pick -Ups Collection Material Franchise AB -939 Monthly # Pick -Ups Collection Material Franchise AB -939 Monthly Per week Component Processing Fee Fee Rate Per week Component Processing Fee Fee Rate 1 $46.42 $38.97 $8.54 $0.85 $94.79 1 $69.62 $77.94 $14.76 $1.48 $163.80 2 $92.83 $77.94 $17.08 $1.71 $189.56 2 $139.25 $155.88 $29.51 $2.95 $327.59 3 $139.26 $116.91 $25.62 $2.56 $284.34 3 $208.88 $233.82 $44.27 $4.43 $491.40 4 $185.67 $155.88 $34.15 $3.42 $379.12 4 $278.51 $311.76 $59.03 $5.90 $655.20 5 $232.09 $194.85 $42.69 $4.27 $473.90 5 $348.13 $389.70 $73.78 $7.38 $818.99 Extra Pickup Additional Cart after 4 Carts Per Week # of Carts rate # of Carts Per Pick up Per Pick up Per Pick -Up 1 $14.50 1 $35.58 2 $27.00 2 $71.11 3 $36.00 3 $106.74 4 $48.00 4 $142.32 5 $60.00 5 $177.90 Note: Effective January 1, 2017, commercial customers that generate four (4) cubic yards or more a week of organic waste will be entitled to have up to 3 carts serviced 2x a week at no charge. This provision is for a maximum of 25 customers and will terminate on January 1, 2019. Additional carts or service levels will be charged at rates In accordance with the above rate schedule. Contractor and City will determine the qualification of customers who generate (4) cubic yard of organic waste per week. CITY OF LA QUINTA Maximum Rates for Service in Rolloff Boxes and Temporary Service Effective July 1, 2016 Maximum Rolloff Box Rate is the Total of the Service Component and Disposal Component Service Component: Rolloff Box Size Standard 20 yard box $115.64 per pull plus $1.00/ton of Solid Waste Collected Standard 30 yard box $159.02 per pull plus $ 1.00/ton of Solid Waste Collected Standard 40 yard box $186.15 per pull plus $1.00/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 $1.00 per ton of Solid Waste Collected (i.e., the Service Component fora 40 yd. Compactor Is 3 x $186.15 = $558.45 + $1.00Iton.) Disposal Component: Actual Amount Charged to Contractor for Disposal, plus franchise fee. TEMPORARY SERVICE USING BINS Temporary Service utilizing a 3yd Bin is subject to a maximum rate, comprised only of a Service Component, of $119.21 per servicing by Contractor Temporary Service utilizing a 4yd Bin is subject to a maximum rate, comprised only of a Service Component, of $130.68 per servicing by Contractor Temporary Service Delivery Charge Bins and Rolloff Boxes used for Temporary Services are subject to a delivery charge of $20.37 City of La Quinta Maximum Service Component/Rate For Miscellaneous Charges Effective July 1, 2016 New Start Fee $ 7.21 Re -Start Fee $ 18.90 Extra Trip - Rolloff Boxes Only $ 57.43 Returned Check $ 23.82 Bulky Item Service Residential in excess of 4 items or non -regular collection day $16.89/item Commercial $56.29/Item 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 Agreement, all labels on Cart's distributed pursuant to the Prior Agreement 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. 698/015610-0002 9568777.6 a04/26/16 EXHIBIT B -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.) January 19th Hole Block Party Old Town La Quinta February Disc Golf Cove Oasis February Household Hazardous Waste La Quinta City Hall Parking Lot February Walk with the Mayor La Quinta Cove March Desert Youth Olympics Colonel Mitchell Paige Middle School March Easter Egg Hunt La Quinta Park March Farmer's Market Outreach Old Town La Quinta March Nature Walks/Hikes Top of the Cove Parking Lot March Walk with the Mayor Tour of North La Quinta March Pillars of the Community City Hall Courtyard April Used Oil Recycling Event Auto Zone La Quinta April Document Shred Day City Hall North Parking Lot April Community Picnic & Birthday Bash Civic Center Campus April Disc Golf The First Tee of the Coachella Valley April Moonlight Movie Civic Center Campus/Adams Park May Disc Golf Civic Center Campus May Farmer's Market Outreach Old Town La Quinta May Moonlight Movies Civic Center Park/La Quinta Park June Disc Golf La Quinta Park July Moonlight Movies Frtiz Burns Pool EXHIBIT C -1- 698/015610-0002 9568777.6 a04/26/16 September 9/11 Vigil Civic Center Campus October Dog -O -Ween Pioneer Dog Park October Zombie Run La Quinta Park November Veteran's Day Tribute Civic Center Campus December Farmer's Market Outreach Old Town La Quinta December Holiday Open House City Hall December Christmas Tree Lighting Old Town La Quinta 698/015610-0002 9568777.6 a04/26/16 -2- 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 Fire Stations (3 currently) 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 Civic Center Campus Colonel Mitchell Paige Fields Cove Oasis Desert Pride Park Eisenhower Park Fred Wolff Nature Preserve Monticello Park Pioneer Park Saguaro Park Seasons Park Velasco Park Wellness Center Fritz Burns Park Adams Park La Quinta Park (Westward Ho/Adams Street) Bear Creek Trail 698/015610-0002 9568777.6 a04/26/16 EXHIBIT D -1- EXHIBIT E CORPORATE GUARANTY THIS GUARANTY (the "Guaranty) is given as of the 1St day of July, 2016, 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. Contactor has entered an Amended and Restated Agreement Between The City of La Quinta and Burrtec Waste and Recycling Services, LLC, for Solid Waste Handling Services (the "Burrtec Franchise"). C It was a requirement of the Burrtec Franchise, that Guarantor guaranty Contractor's performance of the Burrtec Franchise. D. Guarantor is providing this Guaranty to induce the City to approve the Burrtec Franchise. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of theBurrtec 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 Burrtec Franchise 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 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 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 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 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 Burrtec Franchise (other than discharge of, or stay of proceedings to enforce, obligations under the 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 EXHIBIT E 698/015610-0002 9568777.6 a04/26/16 - 1 - 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 Burrtec Franchise, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Burrtec Franchise; (3) any waiver with respect to any of the obligations of the 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. 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 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 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 Burrtec Franchise based on Contractor's failure to perform which has not been settled or discharged. 698/015610-0002 9568777.6 a04/26/16 EXHIBIT E -2- 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. 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: 698/015610-0002 9568777.6 a04/26/16 City Manager City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Fax: (760) 777-7101 EXHIBIT E -3- with a copy to the City's Legal Counsel at the same address. To the Guarantor: Burrtec Waste Group, Inc 9890 Cherry Ave. Fontana, California 92335 Attn: Chief Executive Officer Fax: (909) 355-7158 698/015610-0002 9568777.6 a04/26/16 EXHIBIT E -4- GROUP ALLEGHENY CASUALTY COMPANY INTERNATIONAL FIDELITY INSURANCE COMPANY CONTINUATION CERTIFICATE Bond No: 0454792 Bond Amount: $1,000,000.00 Term: 06/30/16 to 06/30/17 Insured: Burrtec Waste & Recycling Services, Inc. 224 S. Las Posas Road San Marcos, CA 92069-0000 Obligee: City of La Quinta Agent: Alliant Insurance Services, Inc. 6th Floor 701 B Street San Diego, CA 92101-8156 It is hereby agreed that the captioned numbered Bond 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 7th day of April, 2016, INTERNATIONAL FIDELITY INSURANCE COMPANY By: Lawrence F. Mc Attorney -in -Fact on / Authorized Representative One Newark Center, 20' Floor, Newark, NJ 071021 Phone (800) 333-41671 www ific.com 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 APR 0 7 201B Date before me, Janice R. Martin personally appeared Lawrence F. McMahon Insert Name of Notary exactly as it appears on the official seal , Notary Public, Name(s) of Signer(s) 21 JANICE MARTIN ts�:: COMM. #1986564 n NOTARY PUBLIC -CALIFORNIA ,,. SAN DIEGO COUNTY n, My Commission Expires JUL-Y28,2016 y Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person whose name( is/#tit subscribed to the within instrument and acknowledged to me that he/AWI } f executed the same in his/j t/// ft authorized capacityQ ,(f), and that by his/Mt/AWN signature(( on the instrument the person( , 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 Signature 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: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner 0 Limited 0 General E6 Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other Signer is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here ❑ Individual ❑ Corporate Officer—Title(s): ❑ Partner 0 Limited 0 General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other. Signer is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here ESU FAh10E CMR HG0 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 attorney(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 rule, 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 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 bynd authority ngby ity of the o°INTERNAT OALLEGHENY A F Attorney NSis URLANNCE COMPANY atsa meeting dulyand may be revoked, pursuant to aheld by the 0th day of July, 010 resolution adopted of Directors esao INSURANCE CASUALTY COMPANY at a meeting duly held on the 15th day of August, 2000: "RESOLVED, that (1) the President, Vice President, Chief Executive Officer 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 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 seals 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 22nd day of July, 2014. STATEuof Essex JERSEY ROBERT W. MINSTER Chief Executive Officer (International Fidelity Insurance Company) and President (Allegheny Casualty Company) On this 22nd day of July 2014, before me came 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. r`',,,,t'P�HY Cit ;,„'= • r�SSlok ;0 NOTARY :r a.•4 m: 0. PUBLIC 0, 906*OF NeP' ` ` IN the City o Newwa k, N wOJersey the hereunto year�firhand t above written Official Seal, CERTIFICATION I, the undersigned officer of INTERNATIONAL FIDEUTY 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: notbeen revoked and is now in full force and effect.:;'• IN TESTIMONY WHEREOF, I have hereunto set my hand this APR :O 7 2016 day of A NOTARY PUBUC OF NEW JERSEY My Commission Expires April 16, 2019