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Resolution No. 09800
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 9800 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A NON-EXCLUSIVE SOLID WASTE FRANCHISE AGREEMENT PURSUANT TO ARTICLE VI OF CHAPTER 12 OF THE VERNON CITY CODE BY AND BETWEEN THE CITY OF VERNON AND WASTE AND RECYCLING SERVICES, INC. WHEREAS, the City Council of the City of Vernon adopted Ordinance No. 1067 on December 8, 1998, which added Article VI to Chapter 12 of the Vernon City Code, establishing a non-exclusive franchise system for solid waste collection in the City; and WHEREAS, one purpose for establishing the non-exclusive franchise -system is to improve the accuracy of the data needed for compliance with the source reduction and recycling requirements of Public Resources Code § 40000, et seq. (commonly referred to as "AB 939"); and WHEREAS, on February 2, 1999, the City Council adopted Resolution No. 7271, establishing a franchise fee for franchises issued pursuant to Article VI of Chapter 12 of the Vernon City Code; and WHEREAS, the Environmental Health Department has contacted all solid waste collection businesses that operated in the City at the time of the adoption of Ordinance No. 1067, and has provided them with information about the franchise application process; and WHEREAS, since the City's adoption of Resolution No. 7299 on March 30, 1999, 50 firms have been granted franchises, 22 of which have been terminated by the City; and WHEREAS, one additional solid waste collection business, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Waste and Recycling Services, Inc. has since applied for and has been determined to be qualified to hold a franchise from the City; and WHEREAS, by memo dated December 17, 2008, Lewis Pozzebon, Director of Health and Environmental Control, has recommended that the City enter into a solid waste franchise agreement with Waste and Recycling Services, Inc. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Standard Non -Exclusive Franchise Agreement for Solid Waste Management Services with Waste and Recycling Services, Inc., a copy of which is attached hereto and incorporated by reference as Exhibit A. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Agreement with Waste and Recycling Services, Inc. for and on behalf of, the City of Vernon and the City Clerk is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or her designee, to send a copy of an executed Agreement to Waste and Recycling Services, Inc. I/ / / - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 5th day of January, 2009. ATTEST: MAIqUELA GIRON, Qity Clerk Name• Leonis C. Malburg Title: Mayor /a pr�=- - 3 - 1 STATE OF CALIFORNIA ) 2 ) ss COUNTY OF LOS ANGELES ) 3 4 I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby 5 certify that the foregoing Resolution, being Resolution No. 9800, was 6 duly adopted by the City Council of the City of Vernon at a regular 7 meeting of the City Council duly held on Monday, January 5, 2009, and 8 thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of 9 Vernon. 10 11 12 A UELA GIR ity Clerk 13 (SEAL) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - EXHIBIT A City of Vernon Standard Non-exclusive Franchise Agreement For Solid Waste Management Services With Waste & Recycling Services, Inc. STANDARD NON-EXCLUSIVE FRANCHISE AGREEMENT TABLE OF CONTENTS P-� AGREEMENTRECITALS..........................................................................................................................1 SECTION 1 GENERAL TERMS........................................................................................................ 2 1.1 Definitions..........................................................................................................................2 1.2 Grant and Acceptance of Franchise............................................................................... 5 1.3 Conditions to Effectiveness of Agreement.................................................................... 6 1.4 Effective Date and Term of Agreement......................................................................... 6 1.5 Non-exclusive Nature of Franchise................................................................................ 6 1.6 Ownership of Solid Waste................................................................................................ 7 1.7 City's Right to Designate Solid Waste Facility............................................................. 7 SECTION 2 COLLECTION OPERATIONS..................................................................................... 8 2.1 Compliance with the Code of the City of Vernon ....................................................... 8 2.2 Hazardous Waste.............................................................................................................. 8 2.3 Report Unauthorized Dumping..................................................................................... 8 2.4 Requirement of Health Permit........................................................................................ 9 SECTION 3 FRANCHISE FEES.......................................................................................................10 3.1 Franchise Fee...................................................................................................................10 3.2 Timing of Franchise Fee Payments ..........................................................................10 SECTION 4 RECORDS AND REPORTS........................................................................................11 4.1 Maintenance of Records.................................................................................................11 4.2 Records of Gross Receipts .............................................................................................11 4.3 Records of Tonnage........................................................................................................11 4.4 Quarterly Reports...........................................................................................................11 4.5 Billing Format..................................................................................................................12 4.6 Inspection by City...........................................................................................................12 SECTION 5 INDEMNITY, INSURANCE AND BOND...............................................................13 5.1 Indemnification of City .............................................. :................................................... 13 5.2 Insurance..........................................................................................................................14 5.3 Faithful Performance Bond...........................................................................................16 STANDARD NON-EXCLUSIVE FRANCHISE AGREEMENT TABLE OF CONTENTS (CONTINUED) P-gZe SECTION 6 DEFAULT AND REMEDIES....................................:................................................17 6.1 Events of Default.............................................................................................................17 6.2 Right to Terminate Upon Default.................................................................................17 SECTION 7 OTHER AGREEMENTS OF THE PARTIES.............................................................18 7.1 Relationship of Parties...................................................................................................18 7.2 Compliance with Law....................................................................................................18 7.3 Governing Law...............................................................................................................18 7.4 Jurisdiction.......................................................................................................................19 7.5 Assignment and Transfer ..............................................................................................19 7.6 Binding on Successors ............. :...................................................................................... 19 7.7 Parties in Interest ............................................................................................................19 7.8 Waiver.............................................................................................................................. 20 7.9 Notice Procedures........................................................................................................... 20 7.10 Representatives of the Parties....................................................................................... 20 7.11 Franchisee to Defend Agreement................................................................................. 21 7.12 Declared State Emergency of ........................................................................................ 21 SECTION 8 MISCELLANEOUS AGREEMENTS......................................................................... 22 8.1 Entire Agreement............................................................................................................ 22 8.2 Subsection Headings 22 ...................................................................................................... 8.3 References to Laws......................................................................................................... 22 8.4 Interpretation................................................................................................................... 22 8.5 Amendment.....................................................................................................................22 8.6 Severability...................................................................................................................... 22 8.7 Counterparts....................................................................................................................22 RECITALS This non-exclusive franchise agreement is entered into this _ day of 20_ by and between the City of Vernon (City) and l�Pc ; ' :L t i nc` * f- �« nc (Franchisee), for the collection and transportafion of solid waste in the City. Recitals WHEREAS, the City is empowered under Section 7 of Article XI of the California Constitution to make and enforce, within its limits, all police and sanitary ordinances and regulations not in conflict with general laws; and WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (AB 939) (California Public Recources Code Section 40000), has declared that it is in the public interest for the State, as sovereign, to authorize and require local agencies to make adequate provisions for solid waste handing within their jurisdictions; and WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2) and Code of the City of Vernon, Chapter 12, the City Council of the City of Vernon has determined that the public health, safety, and well-being require that a non-exclusive franchise be awarded to independent companies for the collection and transportation of solid waste; and WHEREAS, the City desires the continuation of the openly competitive nature of solid waste collection in the City; and WHEREAS, pursuant to the California Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code Section 40000, et seq.), the City is required to divert 50 percent of its solid waste from landfill disposal by the year 2000, and required to accurately measure the amount of solid waste from the City that is generated, diverted, and disposed. In consideration of the recitals stated above and the terms, conditions, covenants, and agreements contained herein, the parties do hereby agree as follows: Page 1 SECTION 1 GENERAL TERMS 1.1 Definitions For the purposes of this agreement, the following definitions shall apply: AB 939 "AB 939" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.), as it may be amended from time to time. Agreement "Agreement" means this non-exclusive franchise agreement between the City and Franchisee, including any exhibits, attachments, and amendments thereto. C! "City" means the City of Vernon, a municipal corporation, and all the territory lying within the municipal boundaries of the City as presently existing or as such boundaries may be modified in the future. City Administrator "City Administrator" means the City Administrator of the City of Vernon, or a duly authorized representative, who may also be the Director of Health & Environmental Control except in the case of an appeal of the director's decision. City Council "City Council" means the City Council of the City of Vernon. Code of the City of Vernon "Code" means the Code of the City of Vernon, California, 1959, as now written or hereafter amended or recodified. Collect/Collection "Collect" or "collection" means to take physical possession and transport solid waste within the City. Page 2 Director "Director" means the Director of Health & Environmental Control of the City of Vernon, or a duly authorized representative. Disposal "Disposal" means the management of solid waste through landfill disposal or transformation at a permitted disposal facility. Disposal Facility "Disposal facility" means the solid waste facility or facilities for the ultimate disposal of solid waste. Franchise "Franchise" means the special right granted by the City under the Code of the City of Vernon to operate as a non-exclusive enterprise for solid waste collection services within the City. Franchisee "Franchisee" means the person to whom the City has granted a non-exclusive right to provide solid waste services within the City as set forth in this agreement and as described in the Code of the City of Vernon. Garbage "Garbage" means all waste animal and vegetable matter resulting from the preparation, consumption, storing, processing, manufacturing or distribution of food, animal feed, or other animal or vegetable matter. Gross Receipts "Gross receipts" means any and all compensation received by the Franchisee in connection with collecting and transporting solid waste generated in the City, and delivering that solid waste to waste processing facilities, waste transfer stations, or disposal facilities. Gross receipts includes amounts received to reimburse the Franchisee for the franchise fee paid to the City, and amounts received to reimburse the Franchisee for the tipping fees it pays to waste processing facilities, waste transfer stations, or disposal facilities. 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 Page 3 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 §1802, 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, 25249.8125281, and 25316; (vi) the Clean Air Act, 42 USC §7901 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 environmental laws currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyls ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-products. 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. Parties "Parties" means the City of Vernon and the Franchisee. Person "Person" means any individual, firm, association, organization, partnership, corporation, business trust, joint,venture, the United States, the State of California, the County of Los Angeles, the City of Vernon, towns, cities, and special purpose districts. Premises "Premises" means any land or building in the City where solid waste is generated or accumulated. Recyclable Materials "Recyclable materials" means residential, commercial or industrial source separated by- products of some potential economic value, set aside, handled, packaged, or offered for collection in a manner different from solid waste. Page 4 Refuse "Refuse" includes garbage and rubbish. Rubbish "Rubbish" includes non-putrescible solid wastes such as ashes, paper, cardboard, cans, yard clippings, wood, glass, bedding, crockery, plastics, rubber by=products or litter. Solid Waste "Solid waste" means all putrescible and non-putrescible refuse, as defined in Public Resources Code §40191. Solid waste does not include: A. Hazardous waste or low-level radioactive waste regulated under Chapter 7.6 (commencing with Section 25800) of Division 20 of the Health and Safety Code. B. Medical waste which is regulated pursuant to the Medical Waste Management Act, California Health and Safety Code §117600, e_t seec ., as now codified or as the same may later be amended or Tecodified, provided that the medical waste, whether treated or untreated, is not delivered to a solid waste facility. Medical waste which has been treated and which is deemed to be solid waste shall be subject to this agreement and the Code of the City of Vernon. Waste Generator "Waste generator" means any person whose act or process produces solid waste or whose act first causes solid waste to become subject to regulation. Waste Processing Facility_ "Waste processing facility" means any facility which is used or maintained for the temporary holding of waste for reuse, recycling, reduction, separation, treatment, recovery, or conversion. Waste Transfer Station "Waste transfer station" means any facility which is used or maintained for the receipt, temporary storage, and storage of waste until it is conveyed to a waste processing facility or disposal facility. 1.2 Grant and Acceptance of Franchise Subject to subsection 1.3, the City hereby grants to Franchisee the non-exclusive franchise, right and privilege to collect and transport solid waste generated in the Page 5 City and offered for collection, and to delivery that solid waste to waste processing facilities, waste transfer stations, or disposal facilities. Such granting of franchise, right and privilege. to Franchisee shall be in accordance with this agreement and Chapter 12 of the Code of the City of Vernon. Franchisee hereby accepts the franchise on the terms and conditions set forth in this agreement. 1.3 Conditions to Effectiveness of Agreement Franchisee's rights and City's obligations under this franchise are subject to the following conditions, each of which, with the exception of subsection 1.3D, may be waived in whole or in part by the City: A. Accuracy of Representations. That the representations and warranties made by the Franchisee in its application for this franchise are true and correct on and as of the effective date of this agreement. B. Absence of Litigation. That there shall be no litigation pending on the effective date of this agreement in any court challenging the award or execution of this agreement in any court challenging the award or execution of this agreement or seeking to restrain or enjoin its performance. C. Furnishing of Insurance and Bonds. That the Franchisee shall have furnished evidence of the insurance and bond required by section 5 of this agreement. D. Adoption of Ordinance. That a City ordinance authorizing the City Council to approve and authorize the execution of this agreement on behalf of the City shall have become effective. 1.4 Effective Date and Term of Agreement The effective date of this agreement shall be . The initial term of the agreement shall begin on the effective date and end five (5) years from the following December 31st. Annually, on each January 1st occurring during the initial term, or an extended term, this agreement shall be automatically extended for an additional period of one (1) year. If either party notifies the other in writing prior to December 151 of any year during the initial or extended term of this agreement that it objects to such an extension, the agreement shall end on the last day of the then existing term, or on an earlier date mutually agreed upon by the parties. 1.5 Non-exclusive Nature of Franchise Franchisee acknowledges and agrees that the City may permit other persons besides Franchisee to collect any or all types of solid waste including those listed in this section, including recyclable materials, without seeking or obtaining approval of Franchisee. Page 6 This grant to Franchisee of a non-exclusive franchise, right and privilege to collect and transport solid waste, and deliver that solid waste to waste processing facilities, waste transfer stations, and disposal facilities shall be interpreted to be consistent with state and federal laws, now and during the term of this agreement. 1.6 Ownership of Solid Waste The Franchisee agrees that the ownership and right of possession of solid waste shall be retained by either the waste generator or the Franchisee. Unless otherwise agreed to in writing by the waste generator and the Franchisee, ownership and the right of possession of solid waste shall transfer directly from the waste generator to the Franchisee once the solid waste is collected by the Franchisee. Nothing in this agreement shall be construed to imply that the City has any such ownership or right of possession of solid waste. Such ownership or right of possession is subject to the City's right to designate a waste processing facility, waste transfer station, or disposal facility as described below in subsection 1.7. 1.7 City's Right to Designate Solid Waste Facility The City reserves the right to direct or prohibit the Franchisee to deliver solid waste to any waste processing facility, waste transfer station, or disposal facility designated by the City. Franchisee agrees to comply with any written directions by the City to use, or refrain from using, any particular waste processing facility, waste transfer station, or disposal facility. Page 7 SECTION 2 COLLECTION OPERATIONS 2.1 Compliance with the Code of the City of Vernon The Franchisee is subject to, and shall conduct its collection operations in compliance with Chapter 12 of the Code of the City of Vernon, which is herein incorporated by reference. If the Franchisee violates the provisions in Chapter 12 of the Code of the City of Vernon, as determined by the Director of Health & Environmental Control, Franchisee shall be considered in default pursuant to subsection 6.1 of this agreement. 2.2 Hazardous Waste A. Employee Education. Franchisee agrees to establish and vigorously enforce an educational program which will train Franchisee's employees in the identification and proper handling of hazardous waste. Franchisee's employees shall not knowingly place such hazardous waste in the collection vehicles, nor knowingly deliver any such hazardous wastes to any waste processing facility, waste transfer station, or disposal facility. B. Identification and Notification. If the Franchisee determines that solid waste placed in any container for collection is hazardous, infectious, not legally disposable at the disposal site, or potentially hazardous to Franchisee's employees, the Franchisee shall have the right to refuse to accept such waste. The Franchisee shall contact the customer and request that proper handling of such waste be arranged. If the customer cannot be reached immediately, the Franchisee shall, prior to leaving the premises, leave a bilingual, Spanish/English tag at least YxY indicating the reason for refusing to collect the waste, and deliver a copy of the tag, along with the address of premises (and the name of the customer, if known) to the Director of Health & Environmental Control no later than the following business day. C. Proper Disposal of Mistakenly Collected Hazardous Waste. If the hazardous waste is delivered to the disposal facility before its presence is detected and the customer cannot be identified or fails to remove the hazardous waste after being requested to do so, the Franchisee shall arrange and pay for its proper delivery to a permitted hazardous waste treatment, storage, or disposal facility. 2.3 Report Unauthorized Dumping Franchisee shall direct its drivers to note (1) the address of any premises at which they observe that solid waste is accumulating and is not being delivered for collection; and (2) the address, or other location description, at which solid waste has been dumped in Page 8 an apparently unauthorized manner. Franchisee shall deliver the address or description to the Director of Health & Environmental Control within three (3) working days of such observation in order to protect public health, safety, and welfare. 2.4 Requirement of Health Permit The Franchisee agrees to obtain annually a City of Vernon Health Permit and affix a City -issued permit. verification plate, decal, or gummed sticker to each of its waste collection vehicles operating in the Cif y. Page 9 SECTION 3 FRANCHISE FEES 3.1 Franchise Fee Franchisee agrees to pay to the City a franchise fee based on a percentage of its gross receipts from providing solid waste collection service to its customers in the City. Compensation received for providing recyclable collection service is not subject to the fee. Franchisee agrees to bill its customers appropriately for each type of service based on the Franchisee's cost for each type of service. The franchise fee rate shall be determined by resolution of the City Council. 3.2 Timing of Franchise Fee Payments On or before the last day of each month following the end of a calendar quarter, Franchisee shall remit to City the franchise fee payment based on the gross receipts for the previous calendar quarter. If the franchise fee payment is not received by the City on or before last day of any month following the end of a calendar quarter, Franchisee shall pay to the City a late payment fee in an amount equal to ten percent (10%) of the amount owing for that quarter. Franchisee shall pay an additional ten percent (10%) owing on any unpaid balance for each month following the initial thirty (30) day period the franchise fee remains unpaid. Page 10 SECTION 4 RECORDS AND REPORTS 4.1 Maintenance of Records Franchisee shall maintain such accounting, statistical, and other records related to its performance under this agreement as shall be necessary to develop the financial statements and other reports required by this agreement. Also, Franchisee agrees to conduct data collection, information and record keeping, and reporting activities needed to comply with applicable laws and regulations, and to meet the reporting and solid waste program management needs of the City. To this extent, such requirements set out in this and other sections of this agreement shall not be considered limiting or necessarily complete. In particular, this section is intended only to highlight the general nature of records and reports and is, not meant to define exactly what the records and reports are to be and their content. Further, with the written direction or approval of the City, the records and reports to be maintained and provided by Franchisee in accordance with this and other sections of the agreement may be adjusted in number, format, or frequency. 4.2 Records of Gross Receipts Franchisee shall maintain records of gross receipts from its customers in the City, and segregate those gross receipts from gross receipts from its customers in other jurisdictions. Records shall be maintained such that the sum of gross receipts reported to the City and upon which the franchise fee payment is based can be easily traced to the Franchisee's daily bank deposit and monthly bank statement. 4.3 Records of Tonnage Franchisee shall maintain records of solid waste and recyclable tonnage collected from its customers in the City, and segregate them from tons collected in other jurisdictions. Tonnage records shall be maintained such that the summary of tonnage reported to the City can be easily traced to the weight tickets from the various waste processing facilities, waste transfer stations, or disposal facilities. In instances when tonnage from the City is included in the same truck load as tonnage from another jurisdiction, the Franchisee shall allocate the tonnage in that load based on the bin capacity served in each jurisdiction, or other tonnage allocation method approved by the Director of Health &Environmental Control. 4.4 Quarterly Reports Franchisee shall submit to the City a quarterly report that accompanies its franchise fee payment. The form of the report shall be set by the Director of Health & Environmental Control and include, but not necessarily be limited to, the following information: Gross Page 11 receipts by customer type (e.g., front-end loader, rolloff); refuse tonnage collected by customer type; recycling tonnage collected by customer type; and, tonnage delivered to each waste processing facility, waste transfer station, and disposal facility. 4.5 Billing Format The Director of Health & Environmental Control shall have the right to require changes to the billing format to itemize certain appropriate charges or to otherwise clarify the billing and/or the expected impact of City fees on rates. The Franchisee will cooperate with the City to revise its billing format as necessary to itemize appropriate charges from time to time. 4.6 Inspection by City The Director of Health & Environmental Control or his/her agents, shall have the right to observe and review Franchisee's operations and enter Franchisee's premises for the purposes of such observations and review at all reasonable hours with reasonable notice. Additionally, the City reserves the right to review and/or audit the Franchisee's financial and operating records, including, but not limited to, gross receipts and tonnage records, upon reasonable notice during business hours. The scope of the review and/or audit shall be limited to verifying the proper payment of franchise fees and the accurate reporting of tonnage. Franchisee shall comply with such review or audit. Page 12 SECTION 5 INDEMNITY, INSURANCE AND BOND 5.1 Indemnification of City A. Indemnification Generally. Separate and distinct from the insurance and default provisions found in this agreement, Franchisee agrees to defend, with counsel to be agreed upon by both parties, indemnify, and hold harmless, the City and its agents, officers, servants, and employees from and against any and all claims, demands, damages, liabilities, costs, or expenses for any damages or injuries to any person or property, including but not limited to, injury to Franchisee's or City's employees, agents, or officers which arise from or are connected with or are caused. or claimed to be caused by acts or omissions of, Franchisee, or their agents, officers, or employees, in the preparation, bidding, execution, administration, or performance of this agreement, or in performing the work or services herein, and all costs and expenses of investigating and defending against same; provided, however, that Franchisee's duty to indemnify and hold harmless shall not include any claims or liability arising from the sole negligence or willful misconduct of the City, its agents, officers, or employees, determined by a court of competent jurisdiction. B. Hazardous Materials Indemnification. Franchisee shall indemnify, defend, with counsel to be agreed upon by both parties, protect and hold harmless the City, its officers, employees, agents, assigns, and any successor or successors to the City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, -charges, penalties and expenses (including but not limited to attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, the City or its officers, employees, or agents arising from or attributable to any repair, cleanup, or detoxification, or preparation and implementation of any removal, remedial, response, closure, or other plan (regardless of whether undertaken due to government action) concerning any hazardous substance or hazardous wastes at any waste processing facility, waste transfer station, disposal facility, or other place where solid waste is or has been transported, transferred, delivered, processed, stored, disposed of or has otherwise come to be located by the Franchisee or its activities pursuant to the agreement resulting in a release of any hazardous substance into the environment. Page 13 C. Indemnity Agreement Pursuant to CERCLA. The foregoing indemnity is intended to operate as an agreement pursuant to 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, "CERCLA," also known as "Superfund, 42 USC §9607(e), and California Health and Safety Code §25364, to defend, protect, hold harmless, and indemnify the City from all forms of liability under CERCLA, other applicable statutes, or common law for any and all matters addressed in this provision. This provision shall survive the expiration of the term of this agreement. 5.2 Insurance A. Minimum Scope and Limits of Insurance During the term of this agreement, the Franchisee shall maintain the following insurance coverage with limits no less than: 1. Commercial General Liability Insurance: minimum $1,000,000 per occurrence for all coverages. Total general liability coverage, including excess or umbrella coverage, shall be not less than $2,000,000 general aggregate. 2. Business Auto Liability Insurance: minimum (a) $1,000,000 bodily injury and $1,000,000 property damage, per occurrence; or (b) combined single limit of $1,000,000 per occurrence and $2,000,000 in the aggregate with excess or umbrella insurance with an aggregate limit of not less than $1,000,000; and, 3. Workers' Compensation as required by California law and Employers Liability with limits of no less than $1,000,000 per accident or disease. B. Deductibles and Self -Insured Retentions. Any significant deductibles or self - insured retentions must be declared to and approved by the City Administrator. At the option of the City Administrator, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions with respect to the City, its officials, employees, agents, or volunteers; or the Franchise shall procure an additional letter of credit or bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. C. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions. 1. General Liability and Automobile Liability Coverage: a. The City, its officers, agents, and employees shall be named as additional insureds on these policies. b. The Franchisee's insurance coverage shall be primary insurance with respect to the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, or its officials, employees, or Page 14 volunteers shall be in excess of the Franchisee's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, or its officials, employees, or volunteers. d. Coverage shall state that the Franchisee'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. f. Such other endorsements as may be required by addendum hereto. 2. Worker's Compensation and Employers Liability Coverage: The insurer shall agree to waive all rights of subrogation against the City, and its officials, employees, and volunteers for losses arising from work performed by the Franchisee in the City. 3. The insurance policies shall not be canceled, other than for nonpayment of premium, materially reduced in coverage or allowed to expire without at least thirty (30) days prior written notice to the City from the insurance company. If the policies are canceled for nonpayment of premium, the insurance company shall provide the City with at least ten (10) days prior written notice. D. 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 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. E. Required Endorsements. Each insurance policy shall contain appropriate endorsements, as specified by the City. F. Delivery of Proof of Coverage. Simultaneously with the execution of this agreement, Franchisee shall furnish the � City certificates of each policy of insurance required hereunder, in form and substance satisfactory to the City Administrator. Renewal certificates shall be furnished to the City to demonstrate maintenance of the required coverages throughout the term of the agreement. G. Changes to Insurance Requirements. The insurance requirements for this franchise may be revised from time to time by resolution of the City Council consistent with prevailing insurance practices for comparable enterprises insuring against the same'or similar risks. Upon ninety (90) days notice from the Page 15 City to the Franchisee, the revised requirements shall be deemed a part of this agreement, and it shall be the Franchisee's obligation to comply with the same. 5.3 Faithful Performance Bond Simultaneously with the execution of this agreement, Franchisee shall, at its sole expense, delivery to the City a bond, payable to the City, securing the Franchisee's faithful performance of its obligations under this agreement. The principal sum of the bond shall be ten thousand dollars ($10,000). The bond shall be unconditional and remain in force during the entire term of this agreement. The bond shall be null and void at the end of the term of this agreement only if the Franchisee promptly and faithfully performs its obligations under this agreement. The bond shall be executed as surety by a corporation authorized to issue surety bonds in the State of California, with a financial condition and record of service satisfactory to the City. In the alternative, Franchisee may deposit a letter of credit or open a certificate of deposit in an amount of ten thousand dollars ($10,000) in the name of the City to be held to secure this faithful performance. The bond requirement in this subsection may be amended by resolution of the City Council. Should the City exercise its right to modify this bond requirement, it shall provide the Franchisee with ninety (90) days prior written notice. Page 16 SECTION 6 DEFAULT AND REMEDIES 6.1 Events of Default Each of the following shall constitute an event of default ("event of default"): A. Failure to Perform. The Franchisee fails to perform any of its material obligations under this agreement, as it may be amended from time to time. B. Failure to Make Timely Franchise Fee Payments. The Franchisee fails to make franchise fee payments within three (3) months of he last day of the month following the calendar quarter for which they are due. C. Failure to Submit Timely Reports. The Franchisee fails to submit quarterly reports within three (3) months of the last day of the month following the calendar quarter for which they are due. D. Misrepresentation. Any misrepresentation or disclosure made to the City by Franchisee in connection with or as an inducement to entering this agreement or any future amendment to this agreement, which proves to be false or misleading in any material respect as of the time the representation or disclosure is made, whether or not any such representation or disclosure appears as part of this agreement. E. Failure to Maintain Coverage. Franchisee fails to provide or maintain in full force and effect the general liability, auto liability, workers' compensation, or employer's liability coverage required by this agreement. F. Violation of the Code of the City of Vernon. Franchisee violates the provisions Chapter 12 of the Code of the City of Vernon, as determined by the Director of Health & Environmental Control. C. Failure to Secure and Maintain Health Permit. Franchisee fails to obtain, renew, pay for, or maintain a valid City of Vernon Health Permit for each waste collection vehicle operating in the City. 6.2 Right to Terminate Upon Default Upon an event of default by Franchisee, the City may terminate this agreement in the manner provided in Chapter 12 of the Code of the City of Vernon. Page 17 SECTION 7 OTHER AGREEMENTS OF THE PARTIES 7.1 Relationship of Parties The parties intend that Franchisee shall perform the services required by this agreement as an independent Franchisee and not as an officer or employee of the City, nor as a partner of or joint venturer with the City. No employee or agent of Franchisee shall be or shall be deemed to be an employee or agent of the City. Except as expressly provided herein, Franchisee shall have the exclusive control over the manner and means of conducting the solid waste collection services performed under this agreement, and all persons performing such services. Franchisee shall be solely responsible for the acts and omissions of its officers, employees, subcontractors, and agents, and shall not obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to the City employees by virtue of their employment with the City. The parties intend that the Franchisee and/or its customers, and not the City, "arrange for" the transportation and disposal of solid waste as that term is used in the context of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 USC §9607(a). 7.2 Compliance with Law In providing the services required under this agreement, Franchisee shall at all times, at its sole cost, comply with all applicable laws of the United States, the State of California, the City and other states or counties which may have jurisdiction over any service provided in this agreement and with all applicable regulations promulgated by any federal, state, regional, or local administrative or regulatory agency, now in force and as they may be enacted, issued, or amended during the term of this agreement. 7.3 Governing Law This agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. In the event that any provision of this agreement conflicts with the Code of the City of Vernon, the Code of the City of Vernon shall prevail. Page 18 7.4 Jurisdiction Any lawsuits between the parties arising out of this agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits. With respect to venue, the parties agree that this agreement is made in and will be performed in the City of Vernon, County of Los Angeles and State of California. 7.5 Assignment and Transfer Except as provided in this subsection, neither party shall assign its rights nor delegate or otherwise transfer its obligations under this agreement to any other person without the prior written consent of the other party. Any such assignment without the consent of the other party shall be void and the attempted assignment shall constitute a material default of this agreement. If the Franchisee requests the City's consideration of and consent to an assignment, the City may deny or approve such request at its sole and complete discretion. For purposes of this subsection, "assignment" shall include, but not be limited to: (i) a sale, exchange, or other transfer of substantially all, of Franchisee's assets dedicated to service under this agreement to a third party; (ii) a single transaction in which a sale, exchange, or other transfer of 10 % or more of the outstanding common stock of Franchisee occurs; (iii) any reorganization, consolidation, merger recapitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation, or other transaction to which Franchisee or any of its shareholders is a party which results in a change of ownership or control of 10% or more of the value or voting rights in the stock of Franchisee; and (iv) 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. For purposes of this subsection, the term "proposed assignee" shall refer to the proposed transferee(s) or other successor(s) in interest pursuant to the assignment. 7.6 Binding on Successors The provisions of this agreement shall inure to the benefit to and be binding on the successors and permitted assigns of the parties. 7.7 Parties in Interest Nothing in this agreement, whether express or implied, is intended to confer any rights on any persons other than the parties to it and their representatives, successors, and permitted assigns. Page 19 7.8 Waiver The waiver by either party of any breach or violation of any provisions of this agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach or violation of the same or any other provision. The subsequent acceptance by either party of any monies which become due hereunder shall not be deemed to be a waiver of any preexisting or concurrent breach or violation by the other party of any provision of this agreement. 7.9 Notice Procedures All notices, demands, requests, proposals, approvals, consents and other communications which this agreement requires, authorizes or contemplates shall, except as otherwise specifically provided, be in writing and shall be effective when personally delivered to a representative of the parties at the address below or deposited in the United States mail, first class postage prepaid, addressed as follows: If to the City: Mr. Lewis Pozzebon Director of Health & Environmental Control City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 If to Franchisee Name: Title: Address: 1 1�111j� t ��- 0m'),Q n t r.- N, �"e_-i The address to which communications may be delivered may be changed from time to time by a notice given in accordance with this subsection. 7.10 Representatives of the Parties As allowed by the Code of the City of Vernon, all actions to be taken by the City related to this agreement, shall be taken by the City Administrator except as provided below. City Administrator may delegate, in writing, authority to other City officials and may Page 20 permit such officials, in turn, to delegate in writing, some or all of such authority to subordinate officers. Franchisee may rely upon actions taken by such delegates if they are within the scope of the authority properly delegated to them. A. The Director of Health & Environmental Control, shall be responsible for administration of this agreement on behalf of the City. B. The Director of Health & Environmental Control may delegate authority to appropriate City employees or other appropriate persons. C. The City Administrator reserves to himself or herself all discretionary and administrative authority not otherwise expressly delegated pursuant to this agreement. Whenever this agreement requires approval by the City, the approval may be given by the City Administrator. Franchisee shall, by the effective date, designate in writing a responsible officer who shall serve as the representative of Franchisee in all matters related to the agreement and shall inform the City in writing of such designation and of any limitations upon his/her authority to Franchisee. City may rely upon action taken by such designated representative as action of Franchisee unless they are outside the scope of the authority delegated to him/her by Franchisee as communicated to the City. Franchisee may change such designation by notifying the Director of Health & Environmental Control in accordance with subsection 7.9. 7.11 Franchisee to Defend Agreement Franchisee shall defend, at its sole expense, the validity of this agreement against all challenges to this agreement by any entity or person not a party to this agreement. Franchisee shall indemnify the City against any liability to entities or persons not party to agreement resulting from a determination that this agreement violates any state or federal law, statute, or constitutional provision. 7.12 Declared State of Emergency In the event that an authorized official declares a State of Emergency within any geographic area of the City, as authorized in Chapter 7, Division 1, Title 2 of the California Government Code (California Emergency Services Act) or U.S. Public Law 81-920 (Federal Civil Defense Act of 1950), the City will have the right to exercise all privileges and perform all services required under this agreement, but will not be required to make prior notification to Franchisee. Page 21 SECTION 8 MISCELLANEOUS AGREEMENTS 8.1 Entire Agreement This agreement represents the full and entire agreement between the parties with respect to the matters covered herein. 8.2 Subsection Headings The section headings and subsection headings in this agreement are for convenience or reference only and are not intended to be used in the construction of this agreement, nor to alter or affect any of its provisions. 8.3 References to Laws All references in this agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided. 8.4 Interpretation This agreement shall be interpreted and construed reasonably and neither for nor against either party, regardless of the degree to which either party participated in its drafting. 8.5 Amendment This agreement may not be modified or amended in any respect except by a written agreement duly approved and signed by the parties. 8.6 Severability If any provision of this agreement is for any reason deemed to be invalid and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this agreement which shall be enforced as if such invalid or unenforceable provision had not been contained herein. 8.7 Counterparts This agreement may be executed in counterparts each of which shall be considered an original. Page 22 IN WITNESS WHEREOF, the City and Franchisee have executed this agreement as of the day and year first above written. ATTEST: LIU MANUELA GIRON, City Clerk CITY OF VERNON, a California municipal corporation Us Name: Title: Mayor / Mayor Pro-Tem APPROVED AS TO LEGAL FORM AND CONTENT: Un JEFF A. HARRISON, City Attorney U�vs�k e, rA U,1.rt �'jlc.,(Franchisee) y. j'/- ��- Title: QS`mit>i Gl yA- By: LZ%���G�i�� 16 h Title:1.�J"l��A Note: If the franchisee is a corporation or limited liability company, the legal name of the corporation or limited liability company shall be set forth above; together with the signatures of at least two (2) officers, as follows: (1) the chairman of the board, president or any vice-president (first signature), and (2) the secretary, any assistant secretary, the chief financial officer or any assistant treasurer (second signature). If the franchisee is a partnership, the true name of the firm shall be set forth above, together with the signature of the partner or partners authorized to sign contracts on behalf of the partnership. Page 23 CITY CLERK'S OFFICE INTEROFFICE MEMORANDUM DATE: January 27, 2009 TO: Lewis Pozzebon, Director of Environmental Health FROM Nelly Giron, City Clerk RE: Resolution No. 9800 - A Resolution of the City Council of the City of Vernon Approving and Authorizing the Execution of a Non -Exclusive Solid Waste Franchise Agreement Pursuant to Article VI of Chapter 12 of the Vernon City Code By and Between the City of Vernon and Waste and Recycling Services, Inc. Per your request for your transmittal, is a copy of the agreement and Resolution No. 9800 referenced above, which was approved by City Council on January 05, 2009. Thank you. NG : dj c: Resolution No. 9800 Agreement No. 09-001 City of Vernon Standard Non-exclusive Franchise Agreement For Solid Waste Management Services With Waste & Recycling Services, Inc. STANDARD NON-EXCLUSIVE FRANCHISE AGREEMENT TABLE OF CONTENTS EASe AGREEMENTRECITALS..........................................................................................................................1 SECTION1 GENERAL TERMS........................................................................................................ 2 1.1 Definitions..........................................................................................................................2 1.2 Grant and Acceptance of Franchise............................................................................... 5 1.3 Conditions to Effectiveness of Agreement.................................................................... 6 1.4 Effective Date and Term of Agreement......................................................................... 6 1.5 Non-exclusive Nature of Franchise................................................................................ 6 1.6 Ownership of Solid Waste............................................................................................... 7 1.7 City's Right to Designate Solid Waste Facility............................................................. 7 SECTION 2 COLLECTION OPERATIONS..................................................................................... 8 2.1 Compliance with the Code of the City of Vernon ....................................................... 8 2.2 Hazardous Waste.............................................................................................................. 8 2.3 Report Unauthorized Dumping..................................................................................... 8 2.4 Requirement of Health Permit . ................................................................................... 9 SECTION3 FRANCHISE FEES......................................................................................I................10 3.1 Franchise Fee...................................................................................................................10 3.2 Timing of Franchise Fee Payments..............................................................................10 SECTION4 RECORDS AND REPORTS........................................................................................11 4.1 Maintenance of Records.................................................................................................11 4.2 Records of Gross Receipts.............................................................................................11 4.3 Records of Tonnage........................................................................................................11 4.4 Quarterly Reports...........................................................................................................11 4.5 Billing Format..................................................................................................................12 4.6 Inspection by City...........................................................................................................12 SECTION 5 INDEMNITY, INSURANCE AND BOND...............................................................13 5.1 Indemnification of City...................................................................................................13 5.2 Insurance..........................................................................................................................14 5.3 Faithful Performance Bond...........................................................................................16 STANDARD NON-EXCLUSIVE FRANCHISE AGREEMENT TABLE OF CONTENTS (CONTINUED) Page SECTION 6 DEFAULT AND REMEDIES.....................................................................................17 6.1 Events of Default.............................................................................................................17 6.2 Right to Terminate Upon Default.................................................................................17 SECTION 7 OTHER AGREEMENTS OF THE PARTIES............................................................18 7.1 Relationship of Parties...................................................................................................18 7.2 Compliance with Law....................................................................................................18 7.3 Governing Law...............................................................................................................18 7.4 Jurisdiction.......................................................................................................................19 7.5 Assignment and Transfer..............................................................................................19 7.6 Binding on Successors....................................................................................................19 7.7 Parties in Interest............................................................................................................19 7.8 Waiver........:..................................................................................................................... 20 7.9 Notice Procedures........................................................................................................... 20 7.10 Representatives of the Parties....................................................................................... 20 7.11 Franchisee to Defend Agreement................................................................................. 21 7.12 Declared State of Emergency........................................................................................ 21 SECTION 8 MISCELLANEOUS AGREEMENTS.......................................................................... 22 8.1 Entire Agreement............................................................................................................ 22 8.2 Subsection Headings...................................................................................................... 22 8.3 References to Laws......................................................................................................... 22 8.4 Interpretation................................................................................................................... 22 8.5 Amendment.....................................................................................................................22 8.6 Severability...................................................................................................................... 22 8.7 Counterparts................................................................................................................22 RECITALS This non-exclusive franchise agreement is entered into this day of 110 1A IM 204 by and between the City of Vernon (City) and 4 (Franchisee), for the collection and trarisporta'ion of solid waste in the City. Recitals WHEREAS, the City is empowered under Section 7 of Article XI of the California Constitution to make and enforce, within its limits, all police and sanitary ordinances and regulations not in conflict with general laws; and WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (AB 939) (California Public Recources Code Section 40000), has declared that it is in the public interest for the State, as sovereign, to authorize and require local agencies to make adequate provisions for solid waste handing within their jurisdictions; and WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2) and Code of the City of Vernon, Chapter 12, the City Council of the City of Vernon has determined that the public health, safety, and well-being require that a non-exclusive franchise be awarded to independent companies for the collection and transportation of solid waste; and WHEREAS, the City desires the continuation of the openly competitive nature of solid waste collection in. the City; and WHEREAS, pursuant to the California Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code Section 40000, et seq.), the City is required to divert 50 percent of its solid waste, from landfill disposal by the year 2000, and required to accurately measure the amount of solid waste from the City that is generated, diverted, and disposed. In consideration of the recitals stated above and the terms, conditions, covenants, and agreements contained herein, the parties do hereby agree as follows: Page 1 SECTION 1 GENERAL TERMS 1.1 Definitions For the purposes of this agreement, the following definitions shall apply: AB 939 "AB 939" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.), as it may be amended from time to time. Agreement "Agreement" means this non-exclusive franchise agreement between the City and Franchisee, including any exhibits, attachments, and amendments thereto. C� "City" means the City of Vernon, a municipal corporation, and all the territory lying within the municipal boundaries of the City as presently existing or as such boundaries may be modified in the future. City Administrator "City Administrator" means the City Administrator of the City of Vernon, or a duly authorized representative, who may also be the Director of Health & Environmental Control except in the case of an appeal of the director's decision. City Council "City Council" means the City Council of the City of Vernon. Code of the City of Vernon "Code" means the Code of the City of Vernon, California, 1959, as now written or hereafter amended or recodified. Collect/Collection "Collect" or "collection" means to take physical possession and transport solid waste within the City. Page 2 nirPrfnr "Director" means the Director of Health & Environmental Control of the City of Vernon, or a duly authorized representative. Disposal "Disposal" means the management of solid waste through landfill disposal or transformation at a permitted disposal facility. Disposal Facility "Disposal facility" means the solid waste facility or facilities for the ultimate disposal of solid waste. Franchise "Franchise" means the special right granted by the City under the Code of the City of Vernon to operate as a non-exclusive enterprise for solid waste collection services within the City. Franchisee "Franchisee" means the person to whom the City has granted a non-exclusive right to provide solid waste services within the City as set forth in this agreement and as described in the Code of the City of Vernon. Garbage "Garbage" means all waste animal and vegetable matter resulting from the preparation, consumption, storing, processing, manufacturing or distribution of food, animal feed, or other animal or vegetable matter. Gross Receipts "Gross receipts" means any and all compensation received by the Franchisee in connection with collecting and transporting solid waste generated in the City, and delivering that solid waste to waste processing facilities, waste transfer stations, or disposal facilities. Gross receipts includes amounts received to reimburse the Franchisee for the franchise fee paid to the City, and amounts received to reimburse the Franchisee for the tipping fees it pays to waste processing facilities, waste transfer stations, or disposal facilities. 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 Page 3 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 §1802, 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 §7901 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 environmental laws currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyls ("PCBs"), petroleum, natural gas and synthetic fuel products, and by-products. 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. Parties "Parties" means the City of Vernon and the Franchisee. Person "Person" means any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California, the County of Los Angeles, the City of Vernon, towns, cities, and special purpose districts. Premises "Premises" means any land or building in the City where solid waste is generated or accumulated. Recyclable Materials "Recyclable materials" means residential, commercial or industrial source separated by- products of some potential economic value, set aside, handled, packaged, or offered for collection in a manner different from solid waste. Page 4 Refuse "Refuse" includes garbage and rubbish. Rubbish "Rubbish" includes non-putrescible solid wastes such as ashes, paper, cardboard, cans, yard clippings, wood, glass, bedding, crockery, plastics, rubber by-products or litter. Solid Waste "Solid waste" means all putrescible and non-putrescible refuse, as defined in Public Resources Code §40191. Solid waste does not include: A. Hazardous waste or low-level radioactive waste regulated under Chapter 7.6 (commencing with Section 25800) of Division 20 of the Health and Safety Code. B. Medical waste which is regulated pursuant to the Medical Waste Management Act, California Health and Safety Code §117600, et sea., as now codified or as the same may later be amended or recodified, provided that the medical waste, whether treated or untreated, is not delivered to a solid waste facility. Medical waste which has been treated and which is deemed to be solid waste shall be subject to this agreement and the Code of the City of Vernon. Waste Generator "Waste generator" means any person whose act or process produces solid waste or whose act first causes solid waste to become subject to regulation. Waste Processing Facility "Waste processing facility" means any facility which is used or maintained for the temporary holding of waste for reuse, recycling, reduction, separation, treatment, recovery, or conversion. Waste Transfer Station "Waste transfer station" means any facility which is used or maintained for the receipt, temporary storage, and storage of waste until it is conveyed to a waste processing facility or disposal facility. 1.2 Grant and Acceptance of Franchise Subject to subsection 1.3, the City hereby grants to Franchisee the non-exclusive franchise, right and privilege to collect and transport solid waste generated in the Page 5 City and offered for collection, and to delivery that solid waste to waste processing facilities, waste transfer stations, or disposal facilities. Such granting of franchise, right and privilege to Franchisee shall be in accordance with this agreement and Chapter 12 of the Code of the City of Vernon. Franchisee hereby accepts the franchise on the terms and conditions set forth in this agreement. 1.3 Conditions to Effectiveness of Agreement Franchisee's rights and City's obligations under this franchise are subject to the following conditions, each of which, with the exception of subsection 1.31), may be waived in whole or in part by the City: A. Accuracy of Representations. That the representations and warranties made by the Franchisee in its application for this franchise are true and correct on and as of the effective date of this agreement. B. Absence of Litigation. That there shall be no litigation pending on the effective date of this agreement in any court challenging the award or execution of this agreement in any court challenging the award or execution of this agreement or seeking to restrain or enjoin its performance. C. Furnishing of Insurance and Bonds. That the Franchisee shall have furnished evidence of the insurance and bond required by section 5 of this agreement. D. Adoption of Ordinance. That a City ordinance authorizing the City Council to approve and authorize the execution of this agreement on behalf of the City shall have become effective. 1.4 Effective Date and Term of Agreement The effective date of this agreement shall be . The initial term of the agreement shall begin on the effective date and end ive (5) years from the following December 31st. Annually, on each January 18t occurring during the initial term, or an extended term, this agreement shall be automatically extended for an additional period of one (1) year. If either party notifies the other in writing prior to December 15t of any year during the initial or extended term of this agreement that it objects to such an extension, the agreement shall end on the last day of the then existing term, or on an earlier date mutually agreed upon by the parties. 1.5 Non-exclusive Nature of Franchise Franchisee acknowledges and agrees that the City may permit other persons besides Franchisee to collect any or all types of solid waste including those listed in this section, including recyclable materials, without seeking or obtaining approval of Franchisee. Page 6 This grant to Franchisee of a non-exclusive franchise, right and privilege to collect and transport solid waste, and deliver that solid waste to waste processing facilities, waste transfer stations, and disposal facilities shall be interpreted to be consistent with state and federal laws, now and during the term of this agreement. 1.6 Ownership of Solid Waste The Franchisee agrees that the ownership and right of possession of solid waste shall be retained.by either the waste generator or the Franchisee. Unless otherwise agreed to in writing by the waste generator and the Franchisee, ownership and the right of possession of solid waste shall transfer directly from the waste generator to the Franchisee once the solid waste is collected by the Franchisee. Nothing in this agreement shall be construed to imply that the City has any such ownership or right of possession of solid waste. Such ownership or right of possession is subject to the City's right to designate a waste processing facility, waste transfer station, or disposal facility as described below in subsection 1.7. 1.7 City's Right to Designate Solid Waste Facility The City reserves the right to direct or prohibit the Franchisee to deliver solid waste to any waste processing facility, waste transfer station, or disposal facility designated by the City. Franchisee agrees to comply with any written directions by the City to use, or refrain from 'using, any particular waste processing facility, waste transfer station, or disposal facility. Page 7 SECTION 2 COLLECTION OPERATIONS 2.1 Compliance with the Code of the City of Vernon The Franchisee is subject to, and shall conduct its collection operations in compliance with Chapter 12 of the Code of the City of Vernon, which is herein incorporated by reference. If the Franchisee violates the provisions in Chapter 12 of the Code of the City of Vernon, as determined by the Director of Health & Environmental Control, Franchisee shall be considered in default pursuant to subsection 6.1 of this agreement. 2.2 Hazardous Waste A. Employee Education. Franchisee agrees to establish and vigorously enforce an educational program. which will train Franchisee's employees in the identification and proper handling of hazardous waste. Franchisee's employees shall not knowingly place such hazardous waste in the collection vehicles, nor knowingly deliver any such hazardous wastes to any waste processing facility, waste transfer station, or disposal facility. B. Identification and Notification. If the Franchisee determines that solid waste placed in any container for collection is hazardous, infectious, not legally disposable at the disposal site, or potentially hazardous to Franchisee's employees, the Franchisee shall have the right to refuse to accept such waste. The Franchisee shall contact the customer and request that proper handling of such waste be arranged. If the customer cannot be reached immediately, the Franchisee shall, prior to leaving the premises, leave a bilingual, Spanish/English tag at least YxY indicating the reason for refusing to collect the waste, and deliver a copy of the tag, along with the address of premises (and the name of the customer, if known) to the Director of Health & Environmental Control no later than the following business day. C. Proper Disposal of Mistakenly Collected Hazardous Waste. If the hazardous waste is delivered to the disposal facility before its presence is detected and the customer cannot be identified or fails to remove the hazardous waste after being requested to do so, the Franchisee shall arrange and pay for its proper delivery to a permitted hazardous waste treatment, storage, or disposal facility. 2.3 Report Unauthorized Dumping Franchisee shall direct its drivers to note (1) the address of any premises at which they observe that solid waste is accumulating and is not being delivered for collection; and (2) the address, or other location description, at which solid waste has been dumped in Page 8 an apparently unauthorized manner. Franchisee shall deliver the address or description to the Director of Health & Environmental Control within three (3) working days of such observation in order to protect public health, safety, and welfare. 2.4 Requirement of Health Permit The Franchisee agrees to obtain annually a City of Vernon Health Permit and affix a City -issued permit verification plate, decal, or gummed sticker to each of its waste collection vehicles operating in the City. Page 9 SECTION 3 FRANCHISE FEES 3.1 Franchise Fee Franchisee agrees to .pay to the City a franchise fee based on a percentage of its gross receipts from providing solid waste collection service to its customers in the City. Compensation received for providing recyclable collection service is not subject to the fee. Franchisee agrees to bill its customers appropriately for each type of service based on the Franchisees cost for each type of service. The franchise fee rate shall be determined by resolution of the City Council. 3.2 Timing of Franchise Fee Payments On or before the last day of each month following the end of a calendar quarter, Franchisee shall remit to City the franchise fee payment based on the gross receipts for the previous calendar quarter. If the franchise fee payment is not received by the City on or before last day of any month following the end of a calendar quarter, Franchisee shall pay to the City a late payment fee in an amount equal to ten percent (10%) of the amount owing for that quarter. Franchisee shall pay an additional ten percent (10%) owing on any unpaid balance for each month following the initial thirty (30) day period the franchise fee remains unpaid. Page 10 SECTION 4 RECORDS AND REPORTS 4.1 Maintenance of Records Franchisee shall maintain such accounting, statistical, and other records related to its performance under this agreement as shall be necessary to develop the financial statements and other reports required by this agreement. Also, Franchisee agrees to conduct data collection, information and record keeping, and reporting activities needed to comply with applicable laws and regulations, and to meet the reporting and solid waste program management needs of the City. To this extent, such requirements set out in this and other sections of this agreement shall not be considered limiting or necessarily complete. In particular, this section is intended only to highlight the general nature of records and reports and is not meant to define exactly what the records and reports are to be and their content. Further, with the written direction or approval of the City, the records and reports to be maintained and provided by Franchisee in accordance with this and other sections of the agreement may be adjusted in number, format, or frequency. 4.2 Records of Gross Receipts Franchisee shall maintain records of gross receipts from its customers in the City, and segregate those gross receipts from gross receipts from its customers in other jurisdictions. Records shall be maintained such that the sum of gross receipts reported to the City and upon which the franchise fee payment is based can be easily traced to the Franchisee's daily bank deposit and monthly bank statement. 4.3 Records of Tonnage Franchisee shall maintain records of solid waste and recyclable tonnage collected from its customers in the City, and segregate them from tons collected in other jurisdictions. Tonnage records shall be maintained such that the summary of tonnage reported to the City can be easily traced to the weight tickets from the various waste processing facilities, waste transfer stations, or disposal facilities. In instances when tonnage from the City is included in the same truck load as tonnage from another jurisdiction, the Franchisee shall allocate the tonnage in that load based on the bin capacity served in each jurisdiction, or other tonnage allocation method approved by the Director of Health & Environmental Control. 4.4 Quarterly Reports Franchisee shall submit to the City a quarterly report that accompanies its franchise fee payment. The form of the report shall be set by the Director of Health & Environmental Control and include, but not necessarily be limited to, the following information: Gross Page 11 receipts by customer type (e.g., front-end loader, rolloff); refuse tonnage collected by customer type; recycling tonnage collected by customer type; and, tonnage delivered to each waste processing facility, waste transfer station, and disposal facility. 4.5 Billing Format The Director of Health & Environmental Control shall have the right to require changes to the billing format to itemize certain appropriate charges or to otherwise clarify the billing and/or the expected impact of City fees on rates. The Franchisee will cooperate with the City to revise its billing format as necessary to itemize appropriate charges from time to time. 4.6 Inspection by City The Director of Health & Environmental Control or his/her agents, shall have the right to observe and review Franchisee's operations and enter Franchisee's premises for the purposes of such observations and review at all reasonable hours with reasonable notice. Additionally, the City reserves the right to review and/or audit the Franchisee's financial and operating records, including, but not limited to, gross receipts and tonnage records, upon reasonable notice during business hours. The scope of the review and/or audit shall be limited to verifying the proper payment of franchise fees and the accurate reporting of tonnage. Franchisee shall comply with such review or audit. Page 12 SECTION 5 INDEMNITY, INSURANCE AND BOND 5.1 Indemnification of City A. Indemnification Generally. Separate and distinct from the insurance and default provisions found in this agreement, Franchisee agrees to defend, with counsel to be agreed upon by both parties, indemnify, and hold harmless, the City and its agents, officers, servants, and employees from and against any and all claims, demands, damages, liabilities, costs, or expenses for any damages or injuries to any person or property, including but not limited to, injury to Franchisee's or City's employees, agents, or officers which arise from or are connected with or are caused or claimed to be caused by acts or omissions of, Franchisee, or their agents, officers, or employees, in the preparation, bidding, execution, administration, or performance of this agreement, or in performing the work or services herein, and all costs and expenses of investigating and defending against same; provided, however, that Franchisee's duty to indemnify and hold harmless shall not include any claims or liability arising from the sole negligence or willful misconduct of the City, its agents, officers, or employees, determined by a court of competent jurisdiction. B. Hazardous Materials Indemnification. Franchisee shall indemnify, defend, with counsel to be agreed upon by both parties, protect and hold harmless the City, its officers, employees, agents, assigns, and any successor or successors to the City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, the City or its officers, employees, or agents arising from or attributable to any repair, cleanup, or detoxification, or preparation and implementation of any removal, remedial, response; closure, or other plan (regardless of whether undertaken due to government action) concerning any hazardous substance or hazardous wastes at any waste processing facility, waste transfer station, disposal facility, or other place where solid waste is or has been transported, transferred, delivered, processed, stored, disposed of or has otherwise come to be located by the Franchisee or its activities pursuant to the agreement resulting in a release of any hazardous substance into the environment. Page 13 C. Indemnity Agreement Pursuant to CERCLA. The foregoing indemnity is intended to operate as an agreement pursuant to 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, "CERCLA," also known as "Superfund," 42 USC §9607(e), and California Health and Safety Code §25364, to defend, protect, hold harmless, and indemnify the City from all forms of liability under CERCLA, other applicable statutes, or common law for any and all matters addressed in this provision. This provision shall survive the expiration of the term of this agreement. 5.2 Insurance A. Minimum Scope and Limits of Insurance During the term of this agreement, the Franchisee shall maintain the following insurance coverage with limits no less than: 1. Commercial General Liability Insurance: minimum $1,000,000 per occurrence for all coverages. Total general liability coverage, including excess or umbrella coverage, shall be not less than $2,000,000 general aggregate. 2. Business Auto Liability Insurance: minimum (a) $1,000,000 bodily injury and $1000,000 property damage, per occurrence; or (b) combined single limit of $1,000,000 per occurrence and $2,000,000 in the aggregate with excess or umbrella insurance with an aggregate limit of not less than $1,000,000; and, 3. Workers' Compensation as required by California law and Employers Liability with limits of no less than $1,000,000 per accident or disease. B. Deductibles and Self -Insured Retentions. Any significant deductibles or self - insured retentions must be declared to and approved by the City Administrator. At the option of the City Administrator, either: the insurer shall reduce or eliminate such deductibles or self-insuredretentions with respect to the City, its officials, employees, agents, or volunteers; or the Franchise shall procure an additional letter of credit or bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. C. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions. 1. General Liability and Automobile Liability Coverage: a. The City, its officers, agents, and employees shall be named as additional insureds on these policies. b. The Franchisee's insurance coverage shall be primary insurance with respect to the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, or its officials, employees, or Page 14 volunteers shall be in excess of the Franchisee's insurance and shall not contribute with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, or its officials, employees, or volunteers. d. Coverage shall state that the Franchisee'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. f. Such other endorsements as may be required by addendum hereto. 2. Worker's Compensation and Employers Liability Coverage: The insurer shall agree to waive all rights of subrogation against the City, and its officials, employees, and volunteers for losses arising from work performed by the Franchisee in the City. 3. The insurance policies shd11 not be canceled, other than for nonpayment of premium, materially reduced in coverage or allowed to expire without at least thirty (30) days prior written notice to the City from the insurance company. If the policies are canceled for nonpayment of premium, the insurance company shall provide the City with at least ten (10) days prior written notice. D. 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 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. E. Required Endorsements. Each insurance policy shall contain appropriate endorsements, as specified by the City. F. Delivery of Proof of Coverage. Simultaneously with the execution of this agreement, Franchisee shall furnish the City certificates of each policy of insurance required hereunder, in form and substance satisfactory to the City Administrator. Renewal certificates shall be furnished to the City to demonstrate maintenance of the required coverages throughout the term of the agreement. G. Changes to Insurance Requirements. The insurance requirements for this franchise may be revised from time to time by resolution of the City Council consistent with prevailing insurance practices for comparable enterprises insuring against the same or similar risks. Upon ninety (90) days notice from the Page 15 City to the Franchisee, the revised requirements shall be deemed a part of this agreement, and it shall be the Franchisee's obligation to comply with the same. 5.3 Faithful Performance Bond Simultaneously with the execution of this agreement, Franchisee shall, at its sole expense, delivery to the City a bond, payable to, the City, securing the Franchisee's faithful performance of its obligations under this agreement. The principal sum of the bond shall be ten thousand dollars ($10,000). The bond shall be unconditional and remain in force during the entire term of this agreement. The bond shall be null and void at the end of the term of this agreement only if the Franchisee promptly and faithfully performs its obligations under this agreement. The bond shall be executed as surety by a corporation authorized to issue surety bonds in the State of California, with a financial condition and record of service satisfactory to the City. In the alternative, Franchisee may deposit a letter of credit or open a certificate of deposit in an amount of ten thousand dollars ($10,000) in the name of the City to be held to secure this faithful performance. The bond requirement in this subsection may be amended by resolution of the City Council. Should the City exercise its right to modify this bond requirement, it shall provide the Franchisee with ninety (90) days prior written notice. Page 16 SECTION 6 DEFAULT AND REMEDIES 6.1 Events of Default Each of the following shall constitute an event of default ("event of default"): A. Failure to Perform. The Franchisee fails to perform any of its material obligations under this agreement, as it may be amended from time to time. B. Failure to Make Timely Franchise Fee Payments. The Franchisee fails to make franchise fee payments within three (3) months of he last day of the month following the calendar quarter for which they are due. C. Failure to Submit Timely Reports. The Franchisee fails to submit quarterly reports within three (3) months of the last day of the month following the calendar quarter for which they are due. D. Misrepresentation. Any misrepresentation or disclosure made to the City by Franchisee in connection with or as an inducement to entering this agreement or any future amendment to this agreement, which proves to be false or misleading in any material respect as of the time the representation or disclosure is made, whether or not any such representation or disclosure appears as part of this agreement. E. Failure to Maintain Coverage. Franchisee fails to provide or maintain in full force and effect the general liability, auto liability, workers' compensation, or employer's liability coverage required by this agreement. F. Violation of the Code of the City of Vernon. Franchisee violates the provisions Chapter 12 of the Code of the City of Vernon, as determined by the Director of Health & Environmental Control. G. Failure to Secure and Maintain Health Permit. Franchisee fails to obtain, renew, pay for, or maintain a valid City of Vernon Health Permit for each waste collection vehicle operating in the City. 6.2 Right to Terminate Upon Default Upon an event of default by Franchisee, the City may terminate this agreement in the manner provided in Chapter 12 of the Code of the City of Vernon. Page 17 SECTION 7 OTHER AGREEMENTS OF THE PARTIES 7.1 Relationship of Parties The parties intend that Franchisee shall perform the services required by this agreement as an independent Franchisee and not as an officer or employee of the City, nor as a partner of or joint venturer with the City. No employee or agent of Franchisee shall be or shall be deemed to be an employee or agent of the City. Except as expressly provided herein, Franchisee shall have the exclusive control over the manner and means of conducting the solid waste collection services performed under this agreement, and all persons performing such services. Franchisee shall be solely responsible for the acts and omissions of its officers, employees, subcontractors, and agents, and shall not obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to the City employees by virtue of their employment with the City. The parties intend that the Franchisee and/or its customers, and not the City, "arrange for" the transportation and disposal of solid waste as that term is used in the context of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 USC §9607(a). 7.2 Compliance with Law In providing the services required under this agreement, Franchisee shall at all times, at its sole cost, comply with all applicable laws of the United States, the State of California, the City and other states or counties which may have jurisdiction over any service provided in this agreement and with all applicable regulations promulgated by any federal, state, regional, or local administrative or regulatory agency, now in force and as they may be enacted, issued, or amended during the term of this agreement. 7.3 Governing Law This agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. In the event that any provision of this agreement conflicts with the Code of the City of Vernon, the Code of the City of Vernon shall prevail. Page 18 7.4 Jurisdiction Any lawsuits between the parties arising out of this agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits. With respect to venue, the parties agree that this agreement is made in and will be performed in the City of Vernon, County of Los Angeles and State of California. 7.5 Assignment and Transfer Except as provided in this subsection, neither party shall assign its rights nor delegate or otherwise transfer its obligations under this agreement to any other person without the prior written consent of the other party. Any such assignment without the consent of the other party shall be void and the attempted assignment shall constitute a material default of this agreement. If the Franchisee requests the City's consideration of and consent to an assignment, the City may deny or approve such request at its sole and complete discretion. For purposes of this subsection, "assignment" shall include, but not be limited to: (i) a sale, exchange, or other transfer of substantially all of Franchisee's assets dedicated to service under this agreement to a third party; (ii) a single transaction in which a sale, exchange, or other transfer of 10% or more of the outstanding common stock of Franchisee occurs; (iii) any reorganization, consolidation, merger recapitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation, or other transaction to which Franchisee or any of its shareholders is a party which results in a change of ownership or control of 10% or more of the value or voting rights in the stock of Franchisee; and (iv) 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. For purposes of this subsection, the term "proposed assignee" shall refer to the proposed transferee(s) or other successor(s) in interest pursuant to the assignment. 7.6 Binding on Successors The provisions of this agreement shall inure to the benefit to and be binding on the successors and permitted assigns of the parties. 7.7 Parties in Interest Nothing in this agreement, whether express or implied, is intended to confer any rights on any persons other than the parties to it and their representatives, successors, and permitted assigns. Page 19 7.8 Waiver The waiver by either party of any breach or violation of any provisions of this agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach or violation of the same or any other provision. The subsequent acceptance by either party of any monies which become due hereunder shall not be deemed to be a waiver of any preexisting or concurrent breach or violation by the other party of any provision of this agreement. 7.9 Notice Procedures All notices, demands, requests, proposals, approvals, consents and other communications which this agreement requires, authorizes or contemplates shall, except as otherwise specifically provided, be in writing and shall be effective when personally delivered to a representative of the parties at the address below or deposited in the United States mail, first class postage prepaid, addressed as follows: If to the City: Mr. Lewis Pozzebon Director of Health & Environmental Control City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 If to Franchisee Name: �) %r-IC 11-s+6 6 Title: V Ve'n lC 1t-ka- Address: ��)11tA. Chezf nI ' lMkzlek The address to which communications may be delivered may be changed from time to time by a notice given in accordance with this subsection. 7.10 Representatives of the Parties As allowed by the Code of the City of Vernon, all actions to be taken by the City related to this agreement, shall be taken by the City Administrator except as provided below. City Administrator may delegate, in writing, authority to other City officials and may Page 20 permit such officials, in turn, to delegate in writing, some or all of such authority to subordinate officers. Franchisee may rely upon actions taken by such delegates if they are within the scope of the authority properly delegated to them. A. The Director of Health & Environmental Control, shall be responsible for . administration of this agreement on behalf of the City. B. The Director of Health & Environmental Control may delegate authority to appropriate City employees or other appropriate persons. C. The City Administrator reserves to himself or herself all discretionary and administrative authority not otherwise expressly delegated pursuant to this agreement. Whenever this agreement requires approval by the City, the approval may be given by the City Administrator. Franchisee shall, by the effective date, designate in writing a responsible officer who shall serve as the representative of Franchisee in all matters related to the agreement and shall inform the City in writing of such designation and of any limitations upon his/her authority to Franchisee. City may rely upon action taken by such designated representative as action of Franchisee unless they are outside the scope of the authority delegated to him/her by Franchisee as communicated to the City. Franchisee may change such designation by notifying the Director of Health & Environmental Control in accordance with subsection 7.9. 7.11 Franchisee to Defend Agreement Franchisee shall defend, at its sole expense, the validity of this agreement against all challenges to this agreement by any entity or person not a party to this agreement. Franchisee shall indemnify the City against any liability to entities or persons not party to agreement resulting from a determination that this agreement violates any state or federal law, statute, or constitutional provision. 7.12 Declared State of Emergency In the event that an authorized official declares a State of Emergency within any geographic area of the City, as authorized in Chapter 7, Division 1, Title 2 of the California Government Code (California Emergency Services Act) or U.S. Public Law 81-920 (Federal Civil Defense Act of 1950), the City will have the right to exercise all privileges and perform all services required under this agreement, but will not be required to make prior notification to Franchisee. Page 21 SECTION 8 MISCELLANEOUS AGREEMENTS 8.1 Entire Agreement This agreement represents the full and entire agreement between the parties with respect to the matters covered herein. 8.2 Subsection Headings The section headings and subsection headings in this agreement are for convenience or reference only and are not intended to be used in the construction of this agreement, nor to alter or affect any of its provisions. 8.3 References to Laws All references in this agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided. 8.4 Interpretation This agreement shall be interpreted and construed reasonably and neither, for nor against either party, regardless of the degree to which either party participated in its drafting. 8.5 Amendment This agreement may not be modified or amended in any respect except by a written agreement duly approved and signed by the parties. 8.6 Severability If any provision of this agreement is for any reason deemed to be invalid and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this agreement which shall be enforced as if such invalid or unenforceable provision had not been contained herein. 8.7 Counterparts This agreement may be executed in counterparts each of which shall be considered an original. Page 22 IN WITNESS WHEREOF, the City and Franchisee have executed this agreement as of the day and year first above written. CITY OF VERNON, a California municipal corporation Name: Leonis C. Malburg Title: Mayor /.Ma s-r--Pry—Tem— ATTEST: By: MANUELA GI Oro, City Clerk APPROVED AS LEGAL FORM AND CONTENT: By: ; � �—�- JE . H BISON, City Attorney I U2A � V\eai o�j)) .3'cwiC (Franchisee) v one.. By: )012k Jkz Title: �Pezl C t_n% By: Title: 640-Xc� Note: If the franchisee is a corporation or limited liability company, the legal name of the corporation or limited liability company shall be set forth above; together with the signatures of at least two (2) officers, as follows: (1) the chairman of the board, president or any vice-president (first signature), and (2) the secretary, any assistant secretary, the chief financial officer or any assistant treasurer (second signature). If the franchisee is a partnership, the true name of the firm shall be set forth above, together with the signature of the partner or partners authorized to sign contracts on behalf of the partnership. Page 23 To: From: Subject: Date: APPROVED JAN 0 5 '09 CITY COUNCIL CITY C LERK DI TRIBUTION Nelly Giron, City Clerk Lewis Pozzebon, Director, Health and Environmental Control D E C 17 2008 CITY CLERK'S OFFICE Solid Waste Non -Exclusive Franchise Agreement, Waste and Recycling Services, Inc. December 17, 2008 Fes. gg00 In December 1998, the City Council adopted Ordinance No. 1067, which requires solid waste collection companies doing business in Vernon to apply for a non-exclusive franchise agreement with the City. The franchise agreement requires the submission of waste generation and recycling reports and a franchise fee on gross receipts. Over twenty companies currently have City of Vernon non-exclusive franchises. Ordinance No. 1067 also allows for new solid waste companies to enter into a non-exclusive franchise agreement with the City. Waste and Recycling Services, Inc. is applying for a non- exclusive franchise agreement and has submitted a franchise agreement package. The package includes two original agreements, insurance documentation, and a performance bond instrument. Based on our completeness review of the franchise agreements and the bonding instrument, and Risk Management's confirmed approval of the insurance documents and bond, I am recommending that the non-exclusive franchise agreement for Waste and Recycling Services, Inc. be forwarded to the City Council for execution at the January 5, 2009 council meeting. When the Waste and Recycling Services, Inc. agreement is scheduled for Council consideration, could you please notify me? I wish to apprise the applicant as to the place, date, and time, of the council meeting, so he can attend if he so desires. Upon approval by the City Council, each of the two agreements will need to be signed on Page 23, and an effective date needs to be entered on Page 1 of both agreements. Please have one of the completed agreements returned to our office for mailing to Waste and Recycling Services, Inc. Attachments: original agreements (2); copies of insurance certifications and performance bond r CA V E' To Xc: City Attorney (without attachments) 4cdd: sw/WasteRecyclingServices. agree �l�fly I2��,l�g California Business Search Page 1 of 1 Corporation WASTE & RECYCLING SERVICES, INC. Number: C2569842 Date Filed: 1/1/2004 Status: active Jurisdiction: California Address 13714 CHESTNUT ST WHITTIER, CA 90605 Agent for Service of Process RONALD A MOLLIS MOLLIS & MOLLIS INC 4621 TELLER STE 200 NEWPORT BEACH, CA 92660 Blank fields indicate the information is not contained in the computer file. If the status of the corporation is "Surrender", the agent for service of process is automatically revoked. Please refer to California Corporations Code Section 2114 for information relating to service upon corporations that have surrendered. http://kepler.sos.ca.gov/corpdata/ShowAIlList?QueryCorpNumber=C2569842&printer=yes 12/17/2008 AC-ORD. CERTIFICATE OF LIABILITY INSURANCE DAT11/131 8 11/13/O8 wo5=5 619.849-3824 Alliant Insurance Services Inc. 701 B Street, 6th Floor San Diego, CA 92101 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NSURED Waste &Recycling Services,inc 13714 Chestnut Street Whittier CA 90605 INSURER A: Hudson Insurance Company - INSURER B: RSUI Indemnity Company INSURER C: INSURER D: INSU ER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOO INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. NSR TYPE OF INSURANCE POLICY NUMBER POU EC IVE POLICY IAA N 3/01/09 LIMITS A GENERAL UABIUTY HAS00019701 3/01/08 EACH OCCURRENCE 6 1 00000o FIRE DAMAGE (Any one fire) 6 300,0DO X COMMERCIAL GENERAL -� A-L� El CLAIMS MADE _I OCCUR L-.__ MED EXP IAny am Paraoo) 6 10,000 PERSONAL& ADVINJURY S 1,000 000 GENERAL AGGREGATE 6 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS • COMP/OP AGO $ 2,000,000 - X POLICY R0- LOC A AUTO MOBILE LIABILITY ANY AUTO HAS00019701 3/01108 3/01/09 COMBINED SINGLE OMIT (Es accldenA 6 1,000,000 ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per person) 6 HIRED AUTOS NON -OWNED AUTOS BODILY INJURY (Per aaaloant) - 6 Pollution PROPERTY DAMAGE (Permcidert) 6 X BUS,AUTO GARAGE LIABILITY AUTO ONLY • EA ACCIDENT 6 OTHER THAN EA ACC AUTO ONLY: AGO 6 ANY AUTO 9 B EXCESS LIABILITY OCCUR CLAIMS MADE NHA222733 11/12/08 VIM EACH OCCURRENCE 6 2,000000 AGOnMATE S 2,000,000 6 DEDUCTIBLE 6 RETENTION 6 S WORKERS COMPENSATION AND EMPLOYERS' LIABILITY TW C SLIMIT E E.L. EACH ACCIDENT 6 YEE E.L. DISEASE - EA EMPL214,111 6 E.L. DISEASE- POLICY LIMIT 6 07NER DESCRIPTION OF OPERATIONSA.00ATIONSIVEHICLESIEXCLUSMNS ADDED BY ENDOMEMENYMPECIAL PROVISIONS The City of Vernon, its officers, agents, and employees shell be named as Additional Insureds ATIMA Be par the attached Endorsement. 'ERTIFICATE HOLDER X I AoolrloNAL INSURED, INSURER uErTEII: CANCELLATION a 10 days notice for non-payment City of Vernon Attn: Anna Barcia 4305 Santa Fe Avenue Vernon, CA 90058 5- 5 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES Be cANCH,LED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30• DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR 0 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. 4CCRD ENDORSEMENT NO. ATTACHEDTOAND ENDORSEMENTEFFEME FORMINGA PARTOF (Standard Time) INSURED AGENCY AND CODE POLICY NUMBER MO. DAY YR. 12:01 NOON A.M. 123 HAS 000197 01 GL 03 01 2008 Alriant Specialty x Waste a Recycling Services, Ina Insurance Services, Inc Aw per waned Inad. Bxt. ached. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED — OWNERS, LESSEES OR CONTRACTORS — (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE SCHEDULE Named of Person or Organization: As per Certificate(s) on file with the company which specify that the Certificate Holder be named as an Additional Insured. RE: As per Contract(s) with the Certificate Holder above. - Refuse Hauling (If no entry appears above, information required to complete this endorsement tail be shown in the Declaratlons as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. The person or organization will be included as an insured only for the length of time specified in the contract. Coverage provided by this endorsement is primary and non-contributory. Any other insurance the additional insured may have is excess. However, coverage is not provided for "bodily Injury", "property damage" or "personal and advertising injury" arising out of the sole negligence of the additional Insured. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED WHIPCG 0025 4 2005 Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Copyright, Insurance Services OMce, Inc., 1984 E:urn A WilCQX Lfrf ' 100 Pine Street, 23rd Floor, San Francisco, CA 94111 A KAUFMAN GROUP COMPANY Phone: (415) 421-4244 OR (800) 759-4855 Fax: (415) 421-0620 DATE: 11A8/200( INSURANCE BINDER Page 1 of 1 THIS BINDER IS A TEMPORARY INSURANCE CONTRACT, SU13JECT TO THE CONDITIONS SHOWN BELOW. INSURED: WASTE & RECYCLING SERVICES B&W PRODUCER: Angela T Williams 13714 CHESTNUT ST AGENT: Alllant Insurance Services, Inc Whittier, CA 90805 701 "B"St Sixth Floor San Diego, CA 92101 LOCATION(S) OF RISK: # 1: 13714 CHESTNUT ST, Whittier, CA 90606 POLICY EFFECTIVE FROM:11/12/08 AT 12:01 AM TO 11/12/09 AT 12:01 AM STD TIME AT RISK LOCATION. FORM OF COVERAGE: POLICY NO: INSURER(S): EXCESS LIABILITY Refuse Hauler NHA222733 OCCURRENCE Line Of Business Suppliers) Participation EXCESS LIABILITY RSUI Indemnity Company 100.00 % LIMITS / DEDUCTIBLES: Loc Sub Coverage Llmit(s) Deductible(s) Co Ins 1 Per Attached Binder Included w/Limits TOTAL CHARGES: Premium: $ 2,554.00 Excess Liability Fee: $ 250.00 Brokerage Fee (Fully Earned) TOTAL: $ 2,804.00 EXCLUSIONS: AS QUOTED. PER ATTACHED CARRIER BINDER. ENDORSEMENTS: AS QUOTED. PER ATTACHED CARRIER BINDER. CONDITIONS: AS QUOTED. PER ATTACHED CARRIER BINDER. 100% MINIMUM & DEPOSIT TERM MINIMUM PREMIUM: 25.00 % EARNED MINIMUM PREMIUM = $638.50 PLEASE REVIEW THIS BINDER CAREFULLY AS IT MAY DIFFER FROM COVERAGES AND LIMITS REQUESTED. THIS COMPANY BINDS THE KINDS) OF INSURANCE STIPULATED HEREIN. THE ABOVE COVERAGES ARE THE ONLY COVERAGES BOUND. ANY COVERAGE REQUESTED IN THE APPLICATION THAT DIFFERS FROM THE ABOVE IS NOT INCLUDED. THE INSURANCE IS SUBJECT TO THE TERMS. CONDITIONS, LIMITATIONS, AND FORMS OF THE POLICY(S) IN CURRENT USE BY THE COMPANY. THIS BINDER IS CANCELLED SIXTY (00) DAYS FROM THE EFFECTIVE DATE OR WHEN REPLACED BY A POLICY, WHICHEVER COMES FIRST. THE AGENT MUST READ THIS CERTIFICATE AND IF NOT CORRECT RETURN IT IMMEDIATELY TO BURNS & WILCOX, LTD.. BY: HARVEY GOLDENBERG, Authorized Representative (CA INS LIC # 0828616) c �I November 13, 2008 Rathbone, King & Seeley Angela Williams 100 Pine Street 23rd Floor San Francisco, CA 94111 Fax: (415)421-0620 ATTENTION: JOHN SZKULNIK RE: Lead Excess Binder Policy Number: Company: Coverage: Insured: Policy Dates: Form: NHA222733 RSUI Indemnity Company - (Best rating: A A 1) Excess Liability Waste and Recycling Services Inc Whittler, CA November 12, 2008 - March 01, 2009 Form 2007 Please contact the underwriter if you have any questions about the standard provisions of this form. Limit: $2,000,000 General Liability: $1,000,000 Occurrence Limit $2,000,000 General Aggregate Limit $2,000,000 Completed Ops/Products Aggregate Limit $1,000,000 Personal & Advertising Injury Limit Form 2007 Defense Outside Limits Auto Liability: $1,000,000 Combined Single Limit 109092 1 of 3 A mam,ber. ofAfthany Insurance Nofd(ngs LLC Policy Attachments and Forms • State Fraud Statement - RSG 99022 0008 • Absolute Asbestos Exclusion - RSG 36003 0904 • California Changes - Cancellation and Nonrenewal - RSG 33022 0404 • California Changes - Spouse or Registered Domestic Partner - RSG 92022 0305 - Employers Liability Exclusion - RSG 36012 0803 • Exclusion - Pre -Existing Damage or Injury - RSG 36051 0504 • Exclusion - Real and Personal Property - Care Custody and Control - RSG 36016 0408 • Exclusion of Certified Acts of Terrorism and Other Nuclear, Bio, Chem or Radio Acts of Terrorism - RSG 36045 0108 - Fungi or Bacteria Exclusion - RSG 36021 0803 • Pollution Exclusion Endorsement- Total - RSG 36030 0803 • Silica or Mixed Dust Exclusion - RSG 36053 0904 - Unimpaired Aggregate Limits - RSG 34007 0803 • Uninsured Underinsured Motorist Exclusion - RSG 36037 0803 • War Liability Exclusion - RSG 36044 0404 -Per Copy of Hudson Quote Submitted Underlvina Company Premium Amount Flat Charge: $2,664.00 Gross Premium: $2,664.00 Comments: Subject to: Review of firm UL terms & conditions. Coverage has been "rejected" by the insured for all acts of terrorism including but not limited to those that are certified by the Secretary of the Treasury under the Terrorism Risk Insurance Act of 2002. Please read all terms and conditions shown above carefully as they may not Conform to specifications shown on your submission. Please note: Certificates of Insurance do not amend, extend or alter coverage afforded by any RSUI Indemnity Company policy and are the responsibility of the insured to maintain for their records. Coverage bound herewith shall be subject to all terms and conditions of the policy to be issued which, when delivered, replaces this binder. All scheduled underlying policies must have a minimum rating of A- VI by A.M. Best Company. Unless specifically requested, we do not require any other copies of underlying policies, and will not review or retain those policies should you send them to us. 2 of 3 / '` �� A member of Alleghany Insurance Holdings U.0 Should any underlying policy not be as represented to us prior to binding, we must be given details of such changes for compliance with Maintenance of "Underlying Insurance" included in the CONDITIONS Section of this policy. In the event of such a change, we are entitled to adjust our terms, conditions and premiums as necessary. This Binder is valid for 90 days from the effective date, We greatly appreciate your business. 3 of 3 I �j A member of Allegheny lnswence Holdings LLC POLICY NUMBER: HAS 000197 01 Gt., COMMERCIAL GENERAL LIABILITY CG DS 01 10 01 COMMERCIAL GENERAL LIABILITY DECLARATIONS COMPANY NAME PRODUCER NAME Hudson Insurance Company A].lianL SpecialLy Insurance Services, Inc. 600 Montgomery Street 9th Floor San Francisco, CA 94111-2711 � NAMED INSURED Waste & Recycling services, Inc. MAILING ADDRESS 13714 Chestnut St Whittier, CA 90605 POLICY PERIOD: FROM 03/01/2008 YOUR MAILING ADDRESS SHOWN ABOVE TO 03/01/2009 AT 12:01 A.M. TIME AT IN RETURN FOR THE PAYMENT OF THE PREMIUM, AND SUBJECT TO ALL THE TERMS OF THIS POLICY, WE AGREE WITH YOU TO PROVIDE THE INSURANCE AS STATED IN THIS POLICY. LIMITS OF INSURANCE EACH OCCURRENCE LIMIT $1, 000, 000 DAMAGE TO PREMISES RENTED TO YOU LIMIT MEDICAL EXPENSE LIMIT PERSONAL & ADVERTISING INJURY LIMIT GENERAL AGGREGATE LIMIT PRODUCTS/COMPLETED OPERATIONS AGGREGATE LIMIT $100, 000 Any one premises $5, 000 Any one person 1 , 000, 000 ,Any one person or organization $2,000,000 $2,000,000 , RETROACTIVE DATE (CG 00 02 ONLY) THIS INSURANCE DOES NOT APPLY TO "BODILY INJURY", "PROPERTY DAMAGE" OR "PERSONAL AND ADVERTISING INJURY" WHICH OCCURS BEFORE THE RETROACTIVE DATE, IF ANY, SHOWN BELOW. RETROACTIVE DATE: (ENTER DATE OR "NONE" IF NO RETROACTIVE DATE APPLIES) DESCRIPTION OF BUSINESS FORM OF BUSINESS: ❑INDIVIDUAL ❑ PARTNERSHIP ❑ JOINT VENTURE ❑ TRUST ❑ LIMITED LIABILITY COMPANY 0 OR'GANIZATION, INCLUDING A CORPORATION (BUT NOT IN- CLUDING A PARTNERSHIP, JOINT VENTURE OR LIMITED LIABILITY COMPANY) BUSINESS DESCRIPTION: Refuse Hauler CG DS 01 10 01 © ISO Properties, Inc., 2000 Page 1 of 5 O Original HUDSON HUD MC000907 MASTER CERTIFICATE OF INSURANCE Hudson Insurance Group Alliant Specialty Insurance Services, Inc. Hudson Insurance Company 600 Montgomery Street 17 State Street, 291h Floor 91h Floor New York, NY 10004 San Francisco, CA 94111-2711 NAMED INSURED: Waste and Recycling Services Inc MAILING ADDRESS: 13714 Chestnut St. � Whittier, CA 90605 POLICY PERIOD: FROM 03/01/2008 TO 03/01/2009 AT 12:01 A.M. STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE. BUSINESS DESCRIPTION Refuse Hauler IN RETURN FOR THE PAYMENT OF THE PREMIUM, AND SUBJECT TO ALL THE TERMS OF YOUR POLICY AND CERTIFICATE ATTACHED HERETO, WE AGREE WITH YOU TO PROVIDE THE INSURANCE AS STATED THEREIN. THE COVERAGE PARTS YOU HAVE ELECTED TO PURCHASE AND WHICH WE HAVE AGREED TO PROVIDE ARE THOSE SPECIFICALLY DESIGNATED BY THE CHECKMARKS BELOW AND FOR WHICH PREMIUM IS REFLECTED. ALLIANT PURCHASING GROUP LIABILITY INSURANCE CERTIFICATE NO.: HAS 000197 01 YOUR LIABILITY COVERAGE IS PROVIDED UNDER MASTER POLICY NO. HAS 000001 00 ISSUED TO THE ALLIANT PURCHASING GROUP. YOUR COVERAGE CONSISTS OF THE FOLLOWING COVERAGE PARTS FOR WHICH A PREMIUM IS INDICATED. THIS PREMIUM MAY BE SUBJECT TO ADJUSTMENT. PREMIUM © COMMERCIAL AUTOMOBILE LIABILITY COVERAGE PART $ 29, 848.60 © COMMERCIAL GENERAL LIABILITY COVERAGE PART $ 1,810.00 TOTAL: $ 31, 658. 60 Premium shown is payable: $ (IN FULL) At inception. $ HUDSON INSURANCE GROUP OTHER NON -LIABILITY INSURANCE rU © ❑ El COMMERCIAL AUTOMOBILE PHYSICAL DAMAGE COVERAGE PART COMMERCIAL INLAND MARINE COVERAGE PART COMMERCIAL PROPERTY COVERAGE PART $ $ $ 1, 896. 00 Not Included Not Included TOTAL: Premium shown is payable: $ (IN FULL) At inception. $ $ 1, 896.00 HUD MC 00 09 07 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of 2 ❑ PAtT===&!F, FORMS APPLICABLE TO ALL COVERAGE PARTS SHOW NUMBERS CG IDS 01 10-01 (General Liability Coveragee) CA DS 03 03-06 (Commercial Automobile Coverage) Countersigned: By. (Date) (Authorized Representative) HUD MC 00 09 07 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 2 of 2 ❑ ORIGINAL Bond No. S-9042947 FAITHFUL PERFORMANCE BOND Premium: $250.00 KNOW ALL MEN BY THESE PRESENTS: That Waste & Recycling Services, Inc. , a California Corporation , as PRINCIPAL, and Washington International Insurance Company , a Corporation organized and doing business by virtue of the laws of the State of California, and duly licensed for the purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings required or authorized by the laws of the State of California, as SURETY, are held and firmly bound to City of Vernon, hereinafter called OBLIGEE, in the penal sum of ten thousand dollars ($10,000) lawful money of the United States, for the payment of which, well and truly to be made, we and each of us hereby bind ourselves, and our and each of our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT: WHEREAS, the above bounden PRINCIPAL, has entered into an agreement, entitled "STANDARD NON-EXCLUSIVE FRANCHISE AGREEMENT FOR SOLID WASTE MANAGEMENT SERVICES" with the OBLIGEE, to do and perform the following work, to wit: Collect, transport and dispose of solid waste generated within City of Vernon, and remit franchise fees to the OBLIGEE in accordance with the agreement. NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or cause to be performed each and all of the requirements and obligations of said agreement to be performed by said PRINCIPAL, as in said agreement set forth, then this BOND shall be null and void; otherwise it will remain in full force and effect. And the said SURETY, for value received hereby stipulates and agrees that no change, extension of time, alternation or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this BOND, and it does hereby waive notice of any such change, extension of time, alternation or addition to the terms of the agreement or to the work or to the specifications. TERM OF PERFORMANCE BOND: One Year, 11/25/08-11/25/09 SURETY: Contact Person: Scot Drake ; Phone No.: 866.627.9442 Address: 701 South Parker Street, Suite 3800, Orange, CA 92868 IN WITNESS WHEREOF, said PRINCIPAL and said SURVEY have caused these presents to be duly signed and sealed this 25th DAY OF November , 2008 Waste & Recycling Services, Inc. Washington International Insurance Company PRINCIPAL SURETY (Name) (Title) G ( TTORNE IN FACT) Maria V. Whitecage, Attorney-In••ract CALIFORNIA ALIoPURPOSE ACKNOWLEDGMENT .JY! zk''}-h: . /;: �.a,./:;.,-i;: r-i:;, :: /r' . /.'.:b';.Yci •. •:7 . i�x.:'i?%"+/14� < .4. f +.:�:• . n i2�, 4':.h'v:SC•;^ vs n... •:d ii:•i,<!:'�:.-/�>''t�.. .�/f., .'�, ./,%..1.. „<i:••4;�'%Y\i'' .:R�o .of..nrr....f.n.,.r.n...n,.i,,.v.n ,.r.... rr.l�: f.(.,..F ;.. IC �:J!`4'i.'i.a......�.vi:A':�:�:;;C,..I......<.,w:/ln'.tl.'.1�'.>.'F::i..l..}�-,1,:;;f.:�V.:l•:.a..,.n, ,.......-.,. /... �,../ .,... ...,':^:e �:x.�n...,.v,., !. .. State of California County of San Diego On NOV 2 5 2008 before me, Sarah Stupin, Notary Public Date Here Irmert Name and TI a of the Ofticer personally appeared Maria V. Whitecage Name(s)of Igo ej�— SARAH STUPIN • �" .COMM. #1778881 NOTARY PUBLIC • CALIFORNIA o r SAN DIEGO COUNTY Commission Ex im Nov, 8, 2011 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the personN) whose name0o Is/ANK subscribed to the within Instrument and acknowledged to me that Re/she/OW executed the same in Ns/her/hWr authorized capacity(M), and that by Vs/herAMr signatur9% on the Instrument the person(l), or the entity upon behalf of which the personW 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 tfnd and Signature OPTIONAL Though the Intlotmatlon below Is not required by law, it may prove valuable to perso on the and could prevent fraudulent removal and reattachment of this form to another document, Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Individual L7 Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGI-IT THUNIBPRINT OF SIGNLR Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer —. Titke(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact El Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER 02D07NokmatNoteryAw n#RM:DaSotoAlm;, P.D. Box 8402-aKt wohh, CA. 8131•i-2402•W..WWN;dnnalN.oWyQrV Item lb9oT':ReerdellCali:TbkFlaei.-"78r AT NAS SURETY GROUP NORTH AMERICAN SPECIALTY INSURANCE COMPANY WASHINGTON INTERNATIONAL INSURANCE COMPANY GENERAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, THAT North American Specialty Insurance Company, a corporation duly organized and existing under laws of the State of New Hampshire, and having its principal office in the City of Manchester, New Hampshire, and Washington International Insurance Company, a corporation organized and existing under the laws of the State of New Hampshire and having its principal office in the City of Itasca, Illinois, each does hereby make, constitute and appoint: LAWRENCE F. McMAHON, JAMES BALDASSARE, JR., PENNY E. KELLEY, JAMES R. SOMMERVILLE, MARIA V. WHITECAGE and AUDREY RODRIGUEZ JOINTLY OR SEVERALLY Its true and lawful Attomey(s)-in-Fact, to make, execute, seal and deliver, for and on its behalf and as its act and deed, bonds or other writings obligatory in the nature of a bond on behalf of each of said Companies, as surety, on contracts of suretyship as are or may be required or permitted by law, regulation, contract or otherwise, provided that no bond or undertaking or contract or suretyship executed under this authority shall exceed the amount of: TWENTY-FIVE MILLION ($25,000,000.00) DOLLARS This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boards of Directors of both North American Specialty Insurance Company and Washington International Insurance Company at meetings duly called and held on the 24d' of March, 2000: "RESOLVED, that any two of the Presidents, any Managing Director, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary or any Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifying the attorney named in the given Power of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them hereby is authorized to attest to the execution of any such Power of Attorney and to attach therein the seal of the Company; and it is FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be binding upon the Company when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached." ONttillIIIIIt TY qg t' F':7 B ORPO•'•sG s v.t. t a ~ Steven P. Anderson, President & Chief Executive Officer of Washington International Insurance Company wc;'• G•S�lT� py 2; n s Matt iZ 1979 QtyOn` & Senior Vice President of North American Specialty Insurance Company Ot tm —g- By *.. David M. Layman, Senior Vice Presided of Washington International insurance Company uu & Vice President of North American Specialty Insurance Company IN WITNESS WHEREOF, North American Specialty Insurance Company and Washington International Insurance Company have caused their official seals to be hereunto affixed, and these presents to be signed by their authorized officers this 30th day of September 20 08 . North American Specialty Insurance Company Washington International Insurance Company State of Illinois County of Du Page SS: On this 30th day of September 20_�8, before me, a Notary Public personally appeared Steven P. Anderson , President and CEO of Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company and David M. Layman, Senior Vice President of Washington International Insurance Company and Vice President of North American Specialty Insurance Company, personally known to me, who being by me duly sworn, acknowledged that they signed the above Power of Attorney as officers of and acknowledged said instrument to be the voluntary act and deed of their respective comoanies. "OFFICIAL SEAL" DONNA D. SE LENS Notary Public, State of Illniole MyCommissionEapires_10/ft* 011 koww �) A"A"o Donna D. Sklens, Notary Public I, James A. Carpenter , the duly elected Assistant Secretary of North American Specialty Insurance Company and Washington International Insurance Company, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney given by said North American Specialty Insurance Company and Washington International Insurance Company, which is still in full force and effect. NOV 2 5 2008 IN WITNESS WHEREOF, I have set my hand and affixed the seals of the Companies this day of 20 James A. Carpenter, Vice President 8c Assistant Secretary of Washington international Insurance Company & North American Specialty Insurance Company