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Resolution No. 100861 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. 10,086 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A NON-EXCLUSIVE FRANCHISE AGREEMENT FOR SOLID WASTE MANAGEMENT SERVICES PURSUANT TO ARTICLE VI OF CHAPTER 12 OF THE VERNON CITY CODE BY AND BETWEEN THE CITY OF VERNON AND CROWN DISPOSAL COMPANY, INC. WHEREAS, the City Council of the City of Vernon (the "City Council") 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 of Vernon (the "City"); and WHEREAS, Crown Disposal Company, Inc. ("Crown Disposal"), a solid waste collection business, has applied for and been determined to be qualified to hold a franchise from the City; and WHEREAS, by memo dated October 5, 2009, the Director of Health and Environmental Control has recommended that the City enter into a solid waste franchise agreement with Crown Disposal. 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 Non -Exclusive Franchise Agreement for Solid Waste Management Services with Crown Disposal Company, 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 -2 2 23 24 25 26 27 28 Crown Disposal for, and on behalf of, the City 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 a fully executed Agreement to: Crown Disposal Company, Inc. Attn.: Thomas H. Fry, President 9189 DeGarmo Avenue Sun Valley, CA 91352 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and her certification to be entered in the Book of Resolutions of the Council of this City. APPROVED AND ADOPTED this 19th day of October, 2009. ATTEST: GIRON, City Clerk Name: W. Michael McCormick Title.--M-a�/ Mayor Pro-Tem - 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 STATE OF CALIFORNIA ) )ss COUNTY OF LOS ANGELES ) I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 10,086, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Monday, October 19, 2009, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the Citypf ernon. Executed this o?/ ay of October, 2009, at Vernon, California. (SEAL) 'Al MANUELA G ON, City Clerk - 3 - EXHIBIT A CITY OF VERNON NON-EXCLUSIVE FRANCHISE AGREEMENT for SOLID WASTE MANAGEMENT SERVICES with CROWN DISPOSAL COMPANY, INC. NON-EXCLUSIVE FRANCHISE AGREEMENT TABLE OF CONTENTS PAGE(S) AGREEMENT RECITALS.............................................................................................................1 SECTION1 GENERAL TERMS...:.............................................................................................. 1 1.1 Definitions ............................... ..............................................................................1 1.2 Grant and Acceptance of Franchise.............................................................................. 5 1.3 Conditions to Effectiveness of Agreement................................................................... 5 1.4 Effective Date and Term of Agreement........................................................................ 6 1.5 Non-exclusive Nature of Franchise.............................................................................. 6 1.6 Ownership of Solid Waste............................................................................................ 6 1.7 City's Right to Designate Solid Waste Facility............................................................ 6 SECTION 2 COLLECTION OPERATIONS................................................................................ 7 2.1 Compliance with Applicable Laws............................................................................... 7 2.2 Hazardous Waste:......................................................................................................... 7 2.3 Report Unauthorized Dumping..................................................................................... 7 2.4 Requirement of Health Permit...................................................................................... 8 SECTION 3 FRANCHISE FEES.................................................................................................. 8 3.1 Franchise Fee................................................................................................................ 8 3.2 Timing of Franchise Fee Payments............................................................................... 8 SECTION 4 RECORDS AND REPORTS.................................................................................... 8 4.1 Maintenance of Records............................................................................................... 8 4.2 Records of Gross Receipts............................................................................................ 9 4.3 Records of Tonnage...........................................:.......................................................... 9 1 4.4 Quarterly Reports ...................... ...................................................;..:.... 9 4.5 Billing Format ...................................................................... ............................ 9 4.6 Inspection by City................................................................I.. 9 SECTION 5 INDEMNITY, INSURANCE AND BOND 10 .... 5.1 Indemnification of City ............................................................................. ................ 10 5.2 Insurance .................................................. 5.3 Faithful Performance Bond ....................................................................: 12 SECTION 6 DEFAULT AND REMEDIES ..........................................................:..:.....:............ 1'3 6.1 Events of Default ...................................................................................... .................. 13 6.2 Right to Terminate Upon Default ............................................................................... 13 SECTION 7 OTHER AGREEMENTS OF THE PARTIES ....................................................... 14 7.1 Relationship of Parties ................................................... ............... .............................. 14 7.2 Governing Law .................................................................. 7.3 Jurisdiction ..................................................................................................................14 7.4 Assignment and Transfer ................................................................. ..... ...................... 14 7.5 Binding on Successors ................................................................................................ 15 7.6 Parties in Interest ..................... 7.7 Waiver .........................................................................................................................15 7.8 Notice Procedures....................................................................................................... 15 7.9 Representatives of the Parties.................................................................................... 16 7.10 Franchisee to Defend Agreement................................................................. 16 .. 7.11 Declared State of Emergency ...................................................................................... 16 SECTION 8 MISCELLANEOUS AGREEMENTS ................................................ %:................. 17 8.1 Entire Agreement................................................................................:::.:................... 17 8.2 Subsection Headings.................................................................................................. 17 8.3 References to Laws ............ ...........:...:........:: ::.:.... :..:... 17 8.4 Interpretation............................................................. ............................ ................. ..... 17 8.5 Amendment.................................................................................................................17 8.6 Severability...................................................................................... .... 17 8.7 Counterparts..................................................................... .............. ................... 17 y:. NON-EXCLUSIVE FRANCHISE AGREEMENT FOR SOLID WASTE MANAGEMENT SERVICES This non-exclusive franchise agreement is entered into this day of , 2009 by and between the City of Vernon, a California charter city ("City") and Crown Disposal Company, Inc., a California corporation ("Franchisee"), for the collection and transportation 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 (the "Act" or "AB 939", California Public Resources- Code Section r. 40009_et sea.), 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 handling within their jurisdictions; and WHEREAS, the City desires the continuation of the openly competitive nature of solid waste collection, in the City; and WHEREAS, pursuant to the Act, the City is required to divert fifty percent (50%) 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; 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; NOW THEREFORE, in consideration of the recitals stated above and the terms, conditions, covenants, and agreements contained herein, the parties do hereby agree as follows: SECTION 1 GENERAL TERMS 1.1 Definitions For the purposes of this Agreement, the definitions in this Section 1 apply. In the event a term is not defined in this Section 1, then it shall have the meaning set forth in Chapter 12 of the Code of the City of Vernon or in Division 30, Part 1, Chapter 2 of the California Public Resources Code (with precedence given to definitions in the Code of the City of Vernon over conflicting definitions contained in the Public Resources Code). The following words and terms shall have the following meanings: Act "Act" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et sect.), 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. Applicable Laws "Applicable Laws" means all laws; regulations, rules, orders, directives, judgments decrees, permits, approvals, or other requirement of the United States, the State of California, the County of Los Angeles, the City of Vernon (including, but not limited to, Chapter 12 of the Code of the City of Vernon), and any federal, state, regional or local administrative and regulatory agencies, that are applicable to any aspectof this Agreement or the collection and transportation -of solid waste, that are in force on the Effective Date and as they maybe enacted, issued or amended during the term of this Agreement. 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. 12720-0004\1154679v2.doc 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 solidwastegenerated-in-the City, and delivering-that-sol3'd-wdste-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 similarly identified as hazardous to human health or the environment, in or pursuant to (i). the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC § 9601 et seq. (CERCLA); (ii). the Hazardous Materials Transportation Act, 49 USC § 5101, et seq.; (iii) the Resource Conservation 12720-0004\1154679v2.doc 3 and Recovery Act, 42 USC § 6901 et seq.; (iv) the Clean Water Act, 33 USC § 1251 et seg.;. (v) California Health and Safety Code §§ 25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC § 7401 et seq.; and -(vii) CaliforniaWater 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 "Recycl „ able 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. 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. 12720-0004\1154679v2.doc 4 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 regulated under Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code. B. High or low-level radioactive waste under Chapter 8 (commencing with Section 114960) of Division 104 of the Health and Safety Code. C. Medical waste which is regulated pursuant to the Medical Waste Management Act, California Health and Safety Code §§ 117600, et seq., 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 that 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 4 3 -the City herebygrantsto- Franchisee -the -non=exclusive-franchise ; right - and privilege tocollect and transport solid waste generated in the City, and offered for collection, and to deliver 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 agrees to bill its customers appropriately for each type of service based on the Franchisee's cost for each. type of service. 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 1.313, may be waived in whole or in part by the City: 12720-0004\1154679v2.doc 5 A. Accuracy of Representations. 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. There shall be no litigation pending on the effective date 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. The Franchisee shall have furnished evidence of the insurance and bond required by Section 5 of this Agreement. D. Adoption of Ordinance. 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 on December 31, 2014. The term may be extended by agreement of the parties and approval of the City Council. 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 and recyclable materials, without seeking or obtaining approval of Franchisee. 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 inwriti 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. 12720-0004\1154679v2.doc 6 SECTION 2 COLLECTION OPERATIONS 2.1 Compliance with Applicable Laws In providing the services required under this. Agreement, Franchisee shall at all times, at its sole cost, comply with all applicable laws, including, but not limited to, Chapter 12 of the Code of the City of Vernon, which is incorporated herein by this reference. If the Franchisee violates any applicable laws, as determined by the Director, 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 that will train. Franchisee's employeesan 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 3"x 5" 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 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 collected and transported to a waste processing facility; and (2) the address, or other location description, at which 'solid waste has been dumped in an apparently unauthorized manner. Franchisee shall deliver the address or description to the Director within three (3) working days of such observation in order to protect public health, safety, and welfare. 12720-0004\1154679v2.doc 7 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. 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. The franchise fee percentage 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 the 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. If a court of competent jurisdiction determines the late fees or other charges provided for herein exceed: the limits permitted by applicable law, then: any such .fees or charge shall be reduced by the amount necessary to reduce the fee or charge to the permitted limit. SECTION 4 RECORDSe 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. 12720-0004\1154679v2.doc 8 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 tonnage 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. 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 and include, but not necessarily be limited to, the following information: Gross 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 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 or his/her agents, shall have the right to observe Franchisee's operations and enter Franchisee's premises for the purposes of such observations and review at all reasonablehours 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--complywith-suchreview-or audit. - ----- - -- 12720-0004\1154679v2.doc 9 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, th.e 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 Franchisee, or its 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 intentional 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 hazardoussubstanceor 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. C. Indemnity Agreement Pursuant to CERCL,4. 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. 12720-0004\1 154679v2.doe 10 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 no less than $2,000,000 general aggregate. 2. Business Automobile 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 $1,000,600 and, 3. Workers' Compensation, as required by California law and Employer's 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 officers, employees, or agents, or the Franchisee 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. Commercial General Liability and Business Automobile Liability Coverage: a. The- City, 7its officers, agents, and employees shall be named as additional insureds on these policies. b. The Franchisee's insurance coverage shall be primary insurance with -An- respect the City, its officers employees, and agents. Any insurance or self-insurance maintainedby the City, or its officers, employees, or agents shall be in excess of the'Franchisee's insurance'and shall not contribute with it. C. Any failure to comply' reporting provisions of the policies shall not affect coverage provided to the City, or its officers, employees, or agents. 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. e. Such other endorsements as may be required by addendum hereto. 12720-0004\1154679v2.doc 11 2. Worker's Compensation and Employers Liability Coverage: The insurer shall agree to waive all rights of subrogation against the City, and its officers, employees, and agents 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. 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 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, deliver 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. 12720-0004\1 154679v2.doc 12 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. SECTION 6 DEFAULT AND REMEDIES 6.1 Events of Default Each of the following shalt constitute an event of default ("event. of default"): A. Failure to Perform. The Franchisee fails to perform any material obligation 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 the last day of the month following the cal end'ar':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 toMaintain 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 Applicable Laws. Franchisee violates the provisions of any applicable laws, as determined by the Director. 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. 12720-0004\1154679v2.doe 13 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 that accrue to 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 CERCLA. 7.2 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. 7.3 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. 7.4 Assignment and Transfer Except as provided in this subsection, neither party shall assign its rights nor delegate pr 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 ten percent (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 12720-0004\1154679v2.doc 14 Franchisee or any of its shareholders is a party which results in a change of ownership or control of ten percent (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. 7.5 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. 7.6 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. 7.7 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 that become due hereunder shall not be deemed to be a waive_ r of any preexisting or concurrent breach or violation by the other party of any provision of this Agreement. 7.8 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: Director of Health & Environmental .Control City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 If to Franchisee: Name: Thomas H. Fry Title: President Company: Crown Disposal Company, Inc. Address: 9189 DeGarmo Avenue Sun Valley, CA 91352 12720-0004\1154679v2.doc 15 The address to which communications may be delivered may be changed from time to time by a notice given in accordance with this subsection. 7.9 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.The City Administrator may delegate, in writing, authority to other City officials and may 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, shall be responsible for administration of this Agreement on behalf of the City. B. The Director 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 Eby 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. 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 in accordance with subsection 7.9. 7.10 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 this Agreement resulting from a determination that this Agreement violates any state or federal law, statute, or constitutional provision. 7.11 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. 12720-0004\1154679v2.doc 16 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. IN WITNESS WHEREOF, the City and Franchisee have executed this Agreement as of the day and year first above written. 12720-0004\1154679v2.doc 17 CITY OF VERNON, a California municipal corporation By: Name: Title: Mayor / Mayor Pro-Tem ATTEST: By: MANUELA GIRON, City Clerk APPROVED AS TO FORM By: LAURENCE S. WIENER, City Attorney CROWN DISPOSAL COMPANY, INC., a California corporation By: '3 �- t Title: pu��' dV-) -2 By: Title: V I C� i�SIC 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. 12720-0004\1154679v2.doc 18 CITY CLERK'S OFFICE INTEROFFICE MEMORANDUM DATE: October 21, 2009 TO: Lewis Pozzebon, Director of Health & Environmental Control FR Nelly Giron, City Cleric RE: Resolution No. 10,086 — A Resolution of the City Council of the City of Vernon Approving and Authorizing the Execution of a Non -Exclusive Franchise Agreement for Solid Waste Management Services Pursuant to Article VI of Chapter 12 of the Vernon City Code By and Between The.City of Vernon and Crown Disposal Company, Inc. Transmitted herewith is a copy of Resolution No. 10,086 referenced above, which was approved by City Council on October 19, 2009, along with an executed original agreement for your transmittal. Thank you. NG:dj c: Resolution No. 10,086 Agreement 09-125 CITY OF VERNON NON-EXCLUSIVE FRANCHISE AGREEMENT for SOLID WASTE MANAGEMENT SERVICES with CROWN DISPOSAL COMPANY, INC. NON-EXCLUSIVE FRANCHISE AGREEMENT TABLE OF CONTENTS PAGE(S) AGREEMENT RECITALS.............................................................................................................1 SECTION 1 GENERAL TERMS................._................................................................................ 1 1.1 Definitions....................._...............................................................................................1 1.2 Grant and Acceptance of Franchise.............................................................................. 5 1.3 Conditions to Effectiveness of Agreement............................................................ .. .. 5 1.4 Effective Date and Term of Agreement........................................................................ 6 1.5 Non-exclusive Nature of Franchise.............................................................................. 6 1.6 Ownership of Solid Waste............................................................................................ 6 1.7 City's Right to Designate Solid Waste Facility............................................................ 6 SECTION 2 COLLECTION OPERATIONS................................................................................ 7 2.1 Compliance with Applicable Laws............................................................................... 7 2.2 Hazardous Waste.......................................................................................................... 7 2.3 Report Unauthorized Dumping..................................................................................... 7 2.4 Requirement of Health Permit...................................................................................... 8 SECTION 3 FRANCHISE FEES.................................................................................................. 8 3.1 Franchise Fee............................................................................................................... 8 3.2 Timing of Franchise Fee Payments.............................................................._................ 8 SECTION 4 RECORDS AND REPORTS.................................................................................... 8 4.1 Maintenance of Records........................................................ :...................................... 8 4.2 Records of Gross Receipts............................................................................................ 9 4.3 Records of Tonnage......:......................................................................I......................... 9 1 4.4 Quarterly Reports.......................................................................................................... 9 4.5 Billing Format............................................................................._................................. 9 4.6 Inspection by City..............................................................................:.......................... 9 SECTION 5 INDEMNITY,. INSURANCE AND BOND........................................................... 10 5.1 Indemnification of City............................................................................................... 10 5.2 Insurance.......................................................................................:............................. 11 5.3 Faithful Performance Bond.................................................................._...................... 12 SECTION 6 DEFAULT AND REMEDIES................................................................................. 1�3 6.1 Events of Default........................................................................................................ 13 6.2 Right to Terminate Upon Default............................:.................................................. 13 SECTION 7 OTHER AGREEMENTS OF THE PARTIES....................................................... 14 7.1 Relationship of Parties................................................................................................ 14 7.2 Governing Law........................................................................................................... 14 7.3 Jurisdiction..................................................................................................................14 7.4 Assignment and Transfer............................................................................................ 14 7.5 Binding on Successors................................................................................................ 15 7.6 Parties in Interest......................................................................................................... 15 7.7 Waiver................................................._.......................................................................15 7.8 Notice Procedures....................................................................................................... 15 7.9 Representatives of the Parties.............................,....................................................... 16 7.10 Franchisee to Defend Agreement................................................................................ 16 7.11 Declared State of Emergency .......................................... SECTION 8 MISCELLANEOUS AGREEMENTS ................. :.................................................. 17 8.1 Entire Agreement........................................................................................................ 17 8.2 Subsection Headings................................................................................................... 17 8.3 References to Laws ......•....................................... `.................. ....... .................. 17 8.4 Interpretation...::................................................................................. ..... `.............. 17 8.5 Amendment.................................................................................................................17 8.6 Severability................................................................................................................ 17 8.7 Counterparts ........................................................ ............................... ..................17 NON-EXCLUSIVE FRANCHISE AGREEMENT FOR SOLID WASTE MANAGEMENT SERVICES �1 This non-exclusive franchise agreement is entered into this I r day of , 2009 by and between the City of Vernon, a California charter city ("City") and Crown Disposal Company, Inc., a California corporation ("Franchisee"), for the collection and transportation 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 (the "Act" or "AB 939", California Public Resources Code Section 40000 ee seg.), 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 handling within their jurisdictions; and WHEREAS, the City desires the continuation of the openly competitive nature of solid waste collection in the City; and WHEREAS, pursuant to the Act, the City is required to divert fifty percent (50% 0) 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; 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; NOW THEREFORE, in consideration of the recitals stated above and the terms, conditions, covenants, and agreements contained herein, the parties do hereby agree as follows: SECTION 1 GENERAL TERMS 1.1 Definitions For the purposes of this Agreement, the definitions in this Section 1 apply. In the event a term is not defined in this Section 1, then it shall have the meaning set forth in Chapter 12 of the Code of the City of Vernon or in Division 30, Part 1, Chapter 2 of the California Public Resources Code (with precedence given to definitions in the Code of the City of Vernon over conflicting definitions contained in the Public Resources Code). The following words and terms shall have the following meanings: Act "Act" 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. Applicable Laws "Applicable Laws" means all laws, regulations, rules, orders, directives, judgments, decrees, permits, approvals, or other requirement of the United States, the State of California, the County of Los Angeles, the City of Vernon (including, but not limited to, Chapter 12 of the Code of the City of Vernon), and any federal, state, regional or local administrative and regulatory agencies, that are applicable to any aspect of this Agreement or the collection and transportation of solid waste, that are in force on the Effective Date and as they maybe enacted, issued or amended during the term of this Agreement. CRY "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. 12720-0004\1154679v2.doc 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 similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC § 9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC § 5101, et seq.; (iii) the Resource Conservation 12720-0004\1154679v2.doc 3 and Recovery Act, 42 USC § 6901 et seq.; (iv) the Clean Water Act, 33 USC § 1251 et seq.; (v) California Health and Safety Code §§ 25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC § 7401 et seq.; and (vii) California Water Code § 13050 (b)'any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local 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. 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. 12720-0004\1154679v2.doe 4 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 regulated under Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code. B. High or low-level radioactive waste under Chapter 8 (commencing with Section 114960) of Division 104 of the Health and Safety Code. C. Medical waste which is regulated pursuant to the Medical Waste Management Act, California Health and Safety Code §§ 117600, et seq., 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 facilitythatis 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 City and offered for collection, and to deliver 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 agrees to bill its customers appropriately for each type of service based on the Franchisee's cost for each type of service. 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: 12720-0004\1154679v2.doc 5 A. Accuracy of Representations. 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. There shall be no litigation pending on the effective date 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. The Franchisee shall have furnished evidence of the insurance and bond required by Section 5 of this Agreement. D. Adoption of Ordinance. 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 �;o J . The initial term of the Agreement shall begin on the effective date and end on December 31, 2014. The term may be extended by agreement of the parties and approval of the City Council. 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 and recyclable materials, without seeking or obtaining approval of Franchisee. 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. 12720-0004\1154679v2.doc 6 SECTION 2 COLLECTION OPERATIONS 2.1 Compliance with Applicable Laws In providing the services required under this Agreement, Franchisee shall at all times, at its sole cost, comply with all applicable laws, including, but not limited to, Chapter 12 of the Code of the City of Vernon, which is incorporated herein by this reference. If the Franchisee violates any applicable laws, as determined by the Director, 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 that 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 Yx 5" 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 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 collected and transported to a waste processing facility; and (2) the address, or other location description, at which solid waste has been dumped in an apparently unauthorized manner. Franchisee shall deliver the address or description to the Director within three (3) working days of such observation in order to protect public health, safety, and welfare. 12720-0004\1154679v2.doc 7 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. 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. The franchise fee percentage 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 the 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. If a court of competent jurisdiction determines the late fees or other charges provided for herein exceed the limits permitted by applicable law, then: any such fees or charge shall be reduced by the amount necessary to reduce the fee or charge to the permitted limit. 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. 12720-0004\1154679v2.doc 8 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 tonnage 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. 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 and include, but not necessarily be limited to, the following information: Gross 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 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 or his/her'agents, shall have the right to observe 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. 12720-0004\1154679v2.doc 9 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 Franchisee, or its 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 intentional 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. 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. 12720-0004\1154679v2.doe 10 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 no less than $2,000,000 general aggregate. 2. Business Automobile 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 Employer's 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 officers, employees, .or agents, or the Franchisee 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. Commercial General Liability and Business 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 officers, employees, and agents. Any insurance or self-insurance maintained by the City, or its officers, employees, or agents 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 officers, employees, or agents. 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. e. Such other endorsements as may be required by addendum hereto. 12720-0004\1154679v2.doe 11 2. Worker's Compensation and Employers Liability Coverage: The insurer shall agree to waive all rights of subrogation against the City, and its officers, employees, and agents 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. 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 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, deliver 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. , 12720-0004\1154679v2.doc 12 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. 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 material obligation 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 the 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 Applicable Laws. Franchisee violates the provisions of any applicable laws, as determined by the Director. 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, 12720-0004\1154679v2.doe 13 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 that accrue to 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 CERCLA. 7.2 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. 7.3 Jurisdiction Any lawsuits between the parties arising ouf 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. 7.4 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 ten percent (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 12720-0004\1154679v2.doc 14 Franchisee or any of its shareholders is a party which results in a change of ownership or control of ten percent (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. 7.5 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. 7.6 Parties in Interest I 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. 7.7 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 that 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. 7.8 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: Director of Health & Environmental Control City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 If to Franchisee: Name: Thomas H. Fry Title: President Company: Crown Disposal Company, Inc. Address: 9189 DeGarmo Avenue Sun Valley, CA 91352 12720-0004\1154679v2.doe 15 The address to which communications may be delivered may changed from time to time by a notice given in accordance with this subsection. 7.9 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. The City Administrator may delegate, in writing, authority to other City officials and may 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, shall be responsible for administration of this Agreement on behalf of the City. B. The Director 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. 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 in accordance with subsection 7.9. 7.10 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 this Agreement resulting from a determination that this Agreement violates any state or federal law, statute, or constitutional provision. 7.11 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. 12720-0004\1154679v2.doc 16 SECTION 8 MISCELLANEOUS AGREEMENTS 8.1 Entire Agreement This Agreementrepresents'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. IN WITNESS WHEREOF, the City and Franchisee have executed this Agreement as of the day and year first above written. 12720-0004\1154679v2.doc 17 CITY OF VERNON, a California municipal corporation By: Name: W. Michael McCormick Title: der / Mayor Pro-Tem ATT ST: By: MANUELA GIRO , City Clerk APP D AS FO By: _ LA + NCE S. WIENER, City Attorney CROWN DISPOSAL COMPANY, INC., a California corporation By: Title: Pr By: C— 44�� Title:irst- Note: If the Franchisee is a corporation or limited liability company, the legal name of the corporation or limited liability company shalt 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. 12720-0004\1154679v2.doc 18 +_22 RECEIVED APPROVED OG1 19 '09 CITY COUNCIL 4 OCT 0 8 2009 CITY CLERKS OFFICE STAFF REPORT HEALTH & ENVIRONMENTAL CONTROL DEPARTMENT DATE: October 5, 2009 TO: Honorable Mayor and City Council >O FROM: VLewis Pozzebon, Director / Health Officer RE: Solid Waste Non -Exclusive Franchise Agreement, Crown Disposal Company, Inc. BACKGROUND: 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. 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. Crown Disposal Company, 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, the City Attorney's review as to form, and Risk Management's confirmed approval of the insurance documents and bond, I am recommending that the non-exclusive franchise agreement for Crown Disposal Company, Inc. be considered for approval and execution at the October 19, 2009 council meeting. Upon scheduling of the agenda item for the franchise agreement, we will apprise the applicant as to the place, date, and time of the council meeting, so that a representative can attend if he or she so desires. Upon approval by the City Council, each of the two agreements will need to be signed on Page 18, and an effective date needs to be entered on Page 1 & 6 of both agreements. Please have one of the completed agreements returned to our office for mailing to Crown Disposal Company, Inc. Attachments: original agreements (2); copies of insurance certifications and performance bond; review by City Attorney's office; and memo from Risk Manager confirming acceptable insurance coverage. FISCAL IMPACT: No fiscal impact is expected from the approval of this agreement. RECOMMENDATION: I. am recommending that the City Council approve the enclosed agreement. Xc: City Attorney (without attachments) 9cLG:MyDocs/SolidWaste/Franchise Hauler Permits/New Permits/ Crown Disposal.doc MEMO vn W h A HEALTH & ENVIRONMENTAL CONTROL DEPARTMENT C To: Donal O'Callaghan, City Administrator ()A — From: ewis Pozzebon, Director, Health and Environmental Control Subject: Request for City Council approval of the Solid Waste Non -Exclusive Franchise Agreement, for Crown Disposal Company, Inc. Date: October 5, 2009 Ordinance No. 1067 allows for new solid waste companies to enter into a non-exclusive franchise agreement with the City. Crown Disposal Company, 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, the City Attorney's review as to form, and Risk Management's confirmed approval of the insurance documents and bond, I am recommending that the attached documents related to a non-exclusive franchise agreement for Crown Disposal Company, Inc. be forwarded to the City Council for execution at the October 19, 2009 council meeting. Upon your concurrence, please have the attached document package forwarded to the City Clerk for processing and scheduling. If you have any questions or need further information, please advise. 9cLG:SW/FranchiseHaulerPermits/New Permit Letters/ Crown Disposal Company_request to schedule CEIVE� O C T 0 5 2009 BY:K�iS Page 1 of 1 Juarez, Debbie From: Barcia, Ana Sent: Monday, October 19, 2009 1:21 PM To: Juarez, Debbie Subject: RE: Insurance Inquiry - Crown Disposal Company Solid Waste Franchise Agreement - Res. No. 10,086 H Debbie, Please be advised that the above referenced has current insurance on file. Ana Barcia City of Vernon Risk Management Department T: 323) 583-8811 ex 286 F: 323) 8264439 abarcia&i.vernon.ca. us From: Juarez, Debbie Sent: Monday, October 19, 2009 1:18 PM To: Barcia, Ana Subject: Insurance Inquiry - Crown Disposal Company Solid Waste Franchise Agreement - Res. No. 10,086 Hi Ana. Please let me know if the above -referenced has insurance on file. Thank you. De6orah Juarez 9;�gcords WanagementAssistant City of Vernon - City Cterk's Office 4305Santa TeAvenue Vernon, CA 90058 (323) 583-8811 10/19/2009