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HomeMy WebLinkAboutAGENDA REPORT 1991 0717 CC REG ITEM 11BMOORPARK 799 Moorpark Avenue Moa spark, California 93021 M E M O R A N D D M (805) 529 -6864 ,.00RPARK, CALIFO^ City Coun it Meet"' of 7 199 0 TO: The Honorable dCii,,y ( 'ounci l FROM: C arolyn Greene, anagement Analyst DATE: July 10, 1991 B. SUBJECT: Award of Temporary Commercial Refuse Permit F11 Previous City Council action autrxorized the granting of non- exclusive commercial refuse permits for temporary collection, recycling, transportation and disposal of solid waste. Temporary service is defined in the agreement as that which occurs less often than once a week. On July 2, the City issued a Request for Qualifications to 12 local refuse r:)mpanies.. A response has been received by G. Rubbish, which is currently franchised to collect residential a, i �.ommercial refuse in the City on a weekly basis. Significant requirements of the permitted haulers include the following: 1. Payment of a $500 fee to the City upon execution of the permit agreement (no later than August 1, 1991); 2. Ten (10) percent franchise fee due to the City on gross receipts (including landf 11 costs), payable to the City quarterly; 3. One -year term with an ef.f,cti_ve (late of August 1, 1991; 4. A $10,000 cash bond or rrevocable letter of credit. Haulers that have been previously franchised by the City will not be required to p(, t an additional $10,000 bond; 5. A Blanket Encroachment ,ermit for the term of the agreement, and regular lot_fication to the City of service dates and locat.ic ; 6. Establishment of a recyc.j ing program for material. from- - temporary bins, including items such as concrete, asphalt, wood and green w stE, and 7. Provision of necessary nformation to the City for meeting AB 939 diversion )als. PAUL W. LAWRASON JR, Mayor BERNARDO M PEREZ SCOTT MON T60+. r R`r R( � E. TALLEY JR. JOHN E. WOZNIAK Mayor Pro Tem Councilmernt ;= uncilmember Councilmember The Honorable City Council July 10, 1991 Page 2 Memo to the Honorable City Council July 15, 1991 Page 2 As these are non - exclusive permits, other haulers may apply for permits during the term. Applicants must meet agreement terms and will be required to pay a pro - rate =i fee for a permit. Staff Recommendation Award a temporary commercial refus(. permit to G.I. Rubbish. attachment AGREEMENT BETWEEN THE CITY OF MOORPARK AND YOIIR COMPANY FOR THE TEMPORARY C NON - EXCLUSIVE COLLECTION, TRANSPORTATION, RECYCLING AND DISPOSAL OF SOLID WASTE DATED AS OF AUGUST 1, 1991 AGREEMENT BETWEEN THE CITY OF MOORPARK AND YOUR COMPANY FOR THE TEMPORARY COMMERCIAL NON - EXCLUSIVE COLLECTION, TRANSPORTATION, RECYCLING AND DISPOSAL OF SOLID WASTE This Temporary Commercial Non - Exclusive Permit Agreement ( "Permit Agreement ") is entered into as of this 1st day of August, 1991, by and between the CITY OF MOORPARK ("City ") and YOUR COMPANY, ( "Permittee), for the temporary commercial collection, transportation, recycling and disposal of solid waste. R E C I T A. L S WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act Of 1989 ("Act"), has declared that it is within the public interest to authorize and require local agencies to make adequate provisions for solid waste handling within their jurisdictions; and WHEREAS, pursuant to California Public Resources Code Section 40059(a)(1), the City Council of the City of Moorpark ( "City Council ") has determined that the public health, safety and well -being require that non - exclusive permits be awarded to a qualified solid waste enterprise for temporary solid waste collection, recycling and disposal in commercial areas in the City; and WHEREAS, the City Council declares its intention of maintaining reasonable rates for collection and disposal of solid waste,within City limits; NOW, TSBILEFORE, THE PARTIES AGREE AS FOLLOWS: SECTION 1 GRANT OF RARY 99"HERCIAL—RON7EXCLUSIVE EST • This Permit Agreement grants a temporary, commercial non - exclusive solid waste permit as defined in Section 2 below to Your Company, pursuant to Title 6, Chapter 10 of the Moorpark Municipal Code ( "Title 6, Chapter 10") and California Public Resources Code Section 40059(a)(1) to arrange for the temporary non - exclusive collection of solid waste in commercial areas within the City ­f Moorpark. WPX /PDT /AGR22235 SECTION 2. DEFINITIONS. Whenever any term used in this Permit Agreement has been defined by Title 6, Chapter ic, or by Division 30, Part 1, Chapter 2 of the California Public Resources Code, the definitions in Title 6, Chapter 10 or Public Resources Code shall apply unless the term is defined in this Permit Agreement. A. Act. "Act" shall mean the California Integrated Waste Management Act of 1989, as it may be amended from time to time. B. Silky Waste. "Bulky Waste" shall mean and include, but not by way of limitation, discarded white goods _(i.e., major household appliances) , furniture, tires, carpets, mattresses and similar large items which cannot be placed in a covered bin. C. City Limits. "City Limits" means the boundaries of the City together with all amendments and changes thereto, which boundaries are shown by maps incorporated herein by reference and which are on file in the office of the Clerk of the City Council. D. Franchise Fee. "Franchise Fee" means the fee or assessment imposed by the City on Permittee solely because of its status as Permittee. The term "franchise fee" does not include: (1) Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both businesses and Permittee or their services but not including a tax, fee, or assessment which is unduly discriminatory against Permittee or its customers); or (2) Requirements, reimbursements, charges or fees incident to the awarding, administering, enforcing, transfer or renewal of this Permit Agreement, including payments of bonds, consultants, administrative expenses, attorney's fees, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages. E. Permittee. " Permittee'" means Your Company, the entity granted the Permit ursuant t,::, this Permit Agreement. greement. F. Gross Revenues. " Grosss Revenues" shall mean any and all revenue or compensation in any form derived by the Permittee, its affiliates, subsidiaries, parents and any person or entity in which the Permittee has a financial -2 -- WPX /PDT /AGR22235 interest, from the collection of Solid Waste pursuant to this Permit Agreement, including, but not limited to, special pickup fees, bin,and drop box rental and collection fees from commercial customers, landfill fees and fees for redelivery of bins and drop boxes, without subtracting Franchise Fees or any other cost of doing business. provided, however, that the amount of gross revenues may be reduced by the amount of any commercial customer bad debts incurred by the Permittee or refunds returned to commercial customers, provided that the revenue with respect thereto has been included in the computation of gross revenues. G. Recyclables. "Recyclables" means those materials to be collected by the Permittee under a program to be mutually determined at a later date. H. Recycling. "Recycling" means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become Solid Waste, and returning them to the economic mainstream in the form of products which meet the quality standards necessary to be used in the marketplace. I. Solid Waste. "Solid Waste" shall include all putrescible and non- putrescible waste, including, but not limited to, animal feces, food waste, waste paper, newspaper, glass, aluminum, plastic, garbage, cardboard, rags, refuse, household ashes, lawn clippings, tree and shrubbery trimmings, leaves, wearing apparel, household goods, wooden containers, dead animals and all worthless, useless, unused, rejected, or cast -off solid or semi -solid matter and commercial and construction waste, such as cement and asphalt, excluding hazardous materials as defined in Title 6, Chapter 10._ J. Temporary. "Temporary" means that bins are used for the collection of commercial solid waste and are serviced less frequently than one time per week. R. Temporary Commercial Non - Exclusive Solid Waste Permit. "Temporary Commercial Non - Exclusive Solid Waste Permit" or "Permit" shall mean the non - exclusive right and privilege: (1) to arrange for the collection of and to collect, and (2) to transport to landfill or other licensed disposal facilities as determined by City, and (3) to recycle from collected Solid Waste appropriate materials, generated and /or accumulated by commercial customers on a temporary basis within the City. This Permit is subject to all of the provisions of Title 6, Chapter 10, this Permit Agreement, and to any rights held by any other solid waste enterprise holding rights pursuant to Public Resources Code Section 49520. -3- WPX /PDT /AGR22235 Permittee agrees to be bound by and comply with all the requirements of Title 61 Chapter 10 and this Permit Agreement. Permittee waives Permittee's right to challenge the terms of this Permit Agreement and Title 6, Chapter 10 under federal, state or local law, or administrative regula- tion, as such laws and regulations exist as of the date of execution of this Permit Agreement. Permittee waives any right or claim to serve the City or any part of the City under any prior grant of permit, contract, license or permit issued or granted by any governmental entity including any right under Section 49520 of the Public Resources Code. A..&ner$1. Permittee shall provide temporary Solid Waste collection, transportation and marketing services for commercial customers within the City in accordance with the terms of this Permit Agreement and Title 6, Chapter 10. B. 9=2=9141 . Not more often than four times per year, Permittee shall collect the Solid Waste, Bulky Waste and Recyclables which have been placed, kept or accumulated in bins at commercial sites within the City„ I. After determining with the City a mutually beneficial system of collection, transfer and disposal, Permittee will institute a program for recycling appropriate materials from temporary commercial bins. to be recycled could--include concrete, asphalt, pwood and greeeni waste. agrees that it will use itscbest efforts ton cause at mleast twenty -five percent (251) of the waste stream collected under this Permit Agreement to be diverted from ultimate deposit in landfills or transformation facilities. Such diversion shall be in accordance with the regulations implementing the Act. 3. City and Permittee shall mutually determine method of payment for recycling program. reports in a . form will provide City with written requirements to the California Integrated meet City's reporting Board, and to the County of Venture throghout Waste Management term eof -4- WPX /PDT /AGR22235 this Permit Agreement wherein it> performance under this program is set forth in detail. D. Hours of Bid Deliyery and Collection. Permittee shall deliver bins and collect Solid Waste within City in accordance with Title 6, Chapter 10 as it may be amended from time to time. E. Dis2gsalSite. City shall approve where Solid Waste generated within City shall be transported for disposal. Permittee shall not dispose of Solid Waste at any disposal site owned or controlled by Permittee or its parent or holding company unless expressly authorized by City. SECTION 5. RISE FEES. A Franchise Fee of ten percent (10 %) of Permittee's Gross Revenues shall be payable by Permittee to City 30 days after the close of each quarter of Permittee's fiscal year, beginning from the date of execution of this Permit Agreement. Franchise Fees not received by city within thirty (30) days after the close of each quarter shall be subject to interest. The interest rate shall be two percent (2 %) above the average of the most recent prime rates of the three largest banks headquartered in California as published in the Wall Street Journal (Western Edition) or similar publication. Interest shall be calculated from the thirty -first (31st) day after the close of each quarter on the basis of a three hundred sixty -five ( 365) day year and the actual number of days that the Franchise Fees are outstanding. Contemporaneously with the execution of this permit Agreement.. Permittee shall deposit a cash bored in the sum of Ten Thousand Dollars ($10,000.00) in an interest bearing account. In the alternative, Permittee may provide city with an irrevocable letter of credit from a bank approved by City. The cash bond or irrevocable letter of credit shall be on terms acceptable to the City Attorney. The cash bond or irrevocable letter of credit shall serve as security for the faithful performance by Permittee of all the provisions and obligations of this Permit Agreement. After thirty ( 30 ) calendar days following Permittee I s failure to pay the City an amount owing under this Permit Agreement, the cash bond or irrevocable letter of credit may be assessed by the City upon fivE, (5) days prior written -5- WPX /PDT /AGR22235 notice to the Permittee for purposes including, but not limited to: (a) Failure of Permittee to pay the City sums due under the terms of the Permit Agreement. (b) Reimbursement of out -of- pocket costs borne by the City to correct Permit Agreement violations not corrected by Permittee, after due notice. (c) Monetary remedies or damages assessed against Permittee due to breach of the Permit Agreement. Permittee shall deposit a sum of money sufficient to restore the cash bond to the original amount or, as the case may be, provide a new irrevocable letter of credit, within thirty (30) days after notice from the City that any amount - has been withdrawn from the cash bond or irrevocable letter of credit. The term of this Permit Agreement shall be for one (1) year, commencing on August 1, 1991, and expiring on July 31, 1992. A. The Permit granted by this Permit Agreement shall not be transferred, sold, hypothecated, sublet or assigned, nor shall any of the rights or privileges herein be hypothecated, leased, assigned, sold or transferred, either in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except the Permittee, either by act of the Permittee or by operation of law, without the prior written consent of the City expressed by City Council resolution. Any attempt by Permittee to assign this Permit without the consent of City shall be void. B. If the Permittee attempts to transfer the Permit prior to obtaining City consent, all of the profits or twenty - five percent ( 25 %) of the Gross Revenues, from the date of attempted transfer until the date of City consent, whichever is greater, shall be returned to customers, on a pro rata basis. C. The City shall not unreasonably withhold its consent to a transfer of the Permi.` granted by this Permit WPX /PDT /AGR22235 Agreement. The City may impose conditions of approval on a Permit 'Agreement transfer, including, but not limited to conditions requiring acceptance of amendments to Title 6, Chapter 10 and this Permit Agreement, and the payment to City of a transfer fee pursuant to Section 9A of this Permit Agreement. D. City consent is required for any change in control of Permittee. Change in control shall mean any sale, transfer or acquisition of (1) more than thirty percent (30 %) of Permittee's assets; or (2) more than ten percent (10 %) of Permittee's voting stock by a person, or group of persons acting in concert, who already owns more than 5% of the voting stock. E. Any change in control of the Permittee occurring without prior City approval shall constitute a material breach of this Permit Agreement. F. Neither this section nor Section 9, below, shall apply to a transfer of ownership of Permittee to another wholly -owned subsidiary or affiliate of Your Company- Permittee may terminate this Permit Agreement only upon thirty (30) days written notice to City. A. Any application for a permit transfer shall be made in a manner prescribed by the City Manager. The application shall include a transfer fee in an amount to be set by City by resolution of the City Council, to cover the cost of all direct and indirect administrative expenses including consultant's and attorney's fees necessary to adequately analyze the application and to reimburse City for all direct and indirect expenses. In addition, the Permittee shall reimburse the City for all costs not covered by the transfer fee. Bills shall be supported with evidence of the expense or cost incurred. The applicant shall pay such bills within thirty (30) days of receipt B. These permit transfer- fees are over and above any Franchise Fees specified in this Permit Agreement and shall not be passed on to commerci�il customers. �•�i • 1 isles• �. •' �- _ :.r •! u:a• rr •� A. If the City Manager determines that the Permittee's performance pursuant tc; this Permit Agreement has not been in conformity with reasonable industry standards in a►AZ WPX /PDT /AGR22235 similar cities in Southern California, the provisions of this Permit Agreement, the requirements of Title 6, Chapter 10, the requirements of the California Integrated Waste Management Board, including, but not limited to, requirements for source reduction and recycling (as to the waste stream subject to this Permit Agreement) or any other applicable federal, state or local law or regulation, including, but not limited to, the laws governing transfer, storage or disposal of hazardous waste, the City Manager may advise Permittee in writing of such deficiencies. The City Manager may, in such written instrument, set a reasonable time within which correction of all such deficiencies is to be made. Unless otherwise specified, a reasonable time for correction shall be thirty (30) days from the receipt by the Permittee of such written notice. The City Manager shall review the Permittee's response and refer the matter to the City Council or decide the matter and notify the Permittee of that decision in writing. If the City Manager refers Permittee's response to the City Council, said response shall be considered by the City Council not later than sixty (60) days from receipt of City Manager's written referral. A decision or order of the City Manager shall be final and binding on Permittee if the Permittee fails to file a "Notice of Appeal" with the City Manager within ten (10) working days of receipt of the City Manager's decision. Within ten working days of receipt of a Notice of Appeal, the City Manager shall refer the appeal to the City Council for proceedings in accordance with Section 1OB -C. B. The City Council, in such case, may set the matter for hearing. The City Council shall give Permittee, and any other person requesting the same, ten (10) days written notice of the time and place of the hearing. At the hearing, the City Council shall consider the report of the City Manager indicating the deficiencies, and shall give the Permittee, or its representatives and any other interested person, a reasonable opportunity tr. , be heard. C. Based on the evidence presented at the public hearing, the City Council shall determine by resolution whether or not the Permit Agreement should be terminated or liquidated damages imposed. If, based upon the record, the City Council determines that the performance of Permittee is in breach of any material term of this Permit Agreement or any material provision of any applicable federal, state or local statute or regulation and has not been corrected within thirty (30) days of receipt of any notice of deficiency, the City Council, in the exercise of its sole discretion, may terminate forthwith, the Permit Agreement or impose liquidated damages, as defined below. The decision of the City Council shall be x:31 WPX /PDT /AGR22235 final and conclusive. Permittee's performance under this Permit Agreement not excused during the period of time prior to the City Council's final determination as to whether such performance is deficient. D. This right of termination or to impose liqui- dated damages is in addition to any other rights of City upon a failure of Permittee to perform its obligations under this Permit Agreement. E. Irrespective of Section 10A -D above, City further reserves the right to terminate Permittee's Permit or impose liquidated damages in the event of any of the following: (1) If the Permittee practices, or attempts to practice, any fraud or deceit upon the City. (2) If the Permittee becomes insolvent, unable or unwilling to pay its debts, or upon listing of an order for relief in favor of Permittee in a hankruptcy proceeding. (3) If the Permittee fails to provide or maintain in full force and effect, the workers compensation, liability and indemnification coverages or cash bond as required by the Permit Agreement. (4) If the Permittee willfully violates any orders or rulings of any regulatory body having jurisdiction over the Permittee relative to this Permit Agreement, provided that the Permittee may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no breach of the Permit Agreement shall be deemed to have occurred. (5) If the Permittee ceases to provide Solid Waste collection service as required under this Permit Agreement over all or a substantial portion of its Permit Area for a period of seven (7) days or more, for any reason within the control of the Permittee. (6 ) If the Permittee willfully fails to make any payments required under the Permit Agreement and /or refuses to provide City with required information, reports and /or test results in a timely manner as provided in the Permit Agreement. (7) Any other act or omission by the Permittee which materially violates the terms, conditions or require- ments of the Permit Agreement, Title 6, Chapter 10, the Act, QM WPX /PDT /AGR22235 as it may be amended from time to time, or any order, directive, rule or regulation issued thereunder and which is not corrected or remedied within the time set in the written notice of the violation or, if the Permittee cannot reasonably correct or remedy the breach within the time set forth in such notice, if the Permittee should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter. (1) The City finds, and the Permittee agrees, that as of the time of the execution of this Permit Agreement, it is impractical, if not impossible to reasonably ascertain the extent of damages which will be incurred by the City as a - result of a material breach by Permittee of its obligations under this Permit Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration and deprivation of the benefits of the Permit Agreement to individual members of the general public for whose benefit this Permit Agreement exists, in subjective gays and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that services might be available at substantially lower costs than alternative services, and the monetary loss resulting from denial of services or denial of quality or reliable services is -impossible to calculate in precise monetary terms; and (iv) the termination of this Permit Agreement for such breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. (2) Accordingly, the City Council may, in its discretion, assess liquidated damages not to exceed the sum of Seven Hundred and Fifty Dollars ($750.00) per day, for each calendar day that service is not provided by Permittee in accordance with this Permit Agreement. The amount of the liquidated damages shall be increased by the past year's consumer price index for the Ventura - Oxnard area on the anniversary of this Permit Agreement. In addition, the Council may order the assessment against the cash bond required by Section 6, above, the termination of the Permit Agreement, or both„ (3) The City finds and the Permittee acknowledges and agrees that the above- described liquidated damages provisions represent a reasr�� able sum in light of all -10_. WPX /PDT /AGR22235 of the circumstances. Said liquidated damages sums shall be applicable to each calendar day of delay during which Permittee has been found by the City Council to be in material default pursuant to this Section. The Permittee shall pay any liquidated damages assessed by the City Council within ten (10) days after they are assessed. If they are not paid within the ten -day period, the City may withdraw them from the security fund established by the cash bond required by Section 6, above, order the termination of the Permit granted by this Permit Agreement, or both. SECTION 11, CITY'S aDDITION1iL ItEMIES . In addition to the remedies set forth in Section 10, above, City shall have the following rights: A. To rent or lease equipment from Permittee for the purpose of collecting, transporting and disposing of Solid Waste which Permittee is obligated to collect, transport and dispose of pursuant to this Permit Agreement, for a period not to exceed six (6) months. In the case of equipment not owned by Permittee, Permittee shall assign to City, to the extent Permittee is permitted to do so under the instruments pursuant to which Permittee possesses such equipment, the right to possess the equipment. Consistent with this provision, Permittee agrees to use its best efforts to obtain, in the instruments or agreements pursuant to which Permittee possesses such equipment, provisions which authorize City to possess such equipment in the event City exercises its rights under this section. If City exercises its rights under this Section 11, City shall pay the reasonable rental value of the equipment so taken for the period of City's possession thereof; B. The right to contract with others to perform the services otherwise to be performed by Permittee hereunder, or to perform such services itself; and C. The right to obtain damages and /or injunctive relief. Both parties recognize and agree that in the event of a breach under the terms of this Permit Agreement by Permittee, City may suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to enforce the provisions of this Permit Agreement and to enjoin the breach thereof. -11- WPX /PDT /AGR22235 SECTION 12 RIGHTS OF CITY TO PE RN M DURING HKER2GENCY. A. Should Permittee, f c r any reason whatsoever, except the occurrence or existence of any of the events or conditions set forth in Section 22A, "Force Majeure," below, refuse or be unable to collect, transport and dispose of any or all of the Solid Waste and Recyclables which it is obligated under this Permit Agreement to collect, transport and dispose of for a period of more than seventy -two (72) hours, and if as a result thereof , Solid Waste and Recyclables should accumulate in City to such an extent, in such a manner, or for such a time that the City Manager in the exercise of his sole discretion should find that such accumulation endangers or menaces the public health, safety or welfare, then in such event City shall have the right, upon twenty -four (24 ) hour prior written notice to Permittee, during the period of such emergency, to temporarily take possession of any or all equipment and facilities of Permittee previously used in the collection, transportation and disposal of Solid Waste and Recyclables under this Permit Agreement, and to use such equipment and facilities to collect and transport any or all Solid Waste and Recyclables which Permittee would otherwise be obligated to collect and transport pursuant to this Permit Agreement. Permittee agrees that in such event it will fully cooperate with City to effect such ,i transfer of possession for City's use. B. Permittee agrees that, in such event, City may take temporary possession of and use all of said equipment and facilities without paying Permittee any rental or other charge, provided that City agrees that, in such event, it assumes complete responsibility for the proper and normal use of such equipment and facilities. City agrees that it shall immediately relinquish possession of all of the above- mentioned property to Permittee upon receipt of written notice from Permittee to the effect that it is able to resume its normal responsibilities under this Permit Agreement. SECTION 13RIVACy. A. Permittee shall strictly observe and protect the rights of privacy of commercial customers. Information identifying individual customers, or the composition or contents of a commercial customer's Solid Waste or Recyclables shall not be revealed to any person, governmental unit, private agency or company, unless upon the authority of a court of law, by statute, or upon valid authorization of the customer. This provision shall not be construed to preclude Permittee from preparing, participating in„ or assisting in -12- WPX /PDT /AGR22235 the preparation of waste characterization studies or waste stream analyses which may be requited by the Act. B. Permittee shall not market or distribute outside the normal course of its business mailing lists with the names and addresses of commercial c xstomers. C. The rights accorded commercial customers pursuant to this section shall be in addition to any other privacy right accorded commercia customers pursuant to federal or state law. A. Quarterly Reports. Forty-five (45) days after the close of each fiscal quarter, the Permittee shall submit a written quarterly report, in a form approved by the City, including, but not limited to, the following information: (1) A summary of the previous quarter's ( or, in the case of the initial reporting quarter, the initial quarter's) activities including, but, not limited to, services begun or discontinued during the reporting quarter, and the number of customers for each class )f service; (2) A list of all new accounts, uncollectible accounts, bad debt write -offs and delinquent accounts; (3) A revenue statement, setting forth monthly Permit Fees, and the basis for the calculation thereof, certified by an officer of the Permittee; (4 ) A list of Permittee's officers and members of its board of directors, but after the initial report only additions and deletions to the Est are required to be reported; (5) A list of stockholders or other equity investors holding five percent (51) or more of the voting interest in the Permittee and any subsidiaries unless Permittee is a public corporation whose annual reports are publicly available, but after the initial report only additions and deletions to the ist are required to be reported; (6) A copy of all landfill gate receipts and invoices for Solid Waste disposal pursuant to this Permit Agreement; -13- WPX /PDT /AGR22235 (7) A list of Permittee's current fleet, including age, make and model of each cab and chassis; (8) Items not listed in (1) through (7) above may be requested by City upon thirty (30) days written notice to Permittee for inclusion in any subsequent quarterly report. B. Adverse Information. Permittee shall provide City with copies of all reports, ox other material adversely affecting the Permit Agreement, received from or submitted to the EPA, the California Integrated Waste Management Board, the Ventura County Environmental Health Department, the Ventura County Solid Waste Management Department, or any other federal, state, county or local agency. Copies shall be submitted to City simultaneously with Permittee's receipt or filing of such matters with said agencies. Permittee's routine correspondence to and from said agencies need not be automatically submitted to City, but shall be made available to City upon written request, as provided in Section 22, below. (1) Permittee shall submit to City copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by the Permittee to, as well as copies of all decisions, correspondence and actions by, any Federal, State and local courts, regulatory agencies and other government bodies relating specifically to Permittee's performance of services pursuant to this Permit Agreement. Any data which Permittee seeks to exempt from the provisions of the California Public Records Act shall be clearly identified as such by Permittee, with the basis for such exemption clearly specified. In the event City receives a request for disclosure of the information, City shall notify Permittee, in order to permit Permittee to bring an action to enjoin disclosure of the information. (2) Permittee shall submit to the City such other information or reports in such forms and at such times as the City may reasonably request -:sr require. reports or any other sec ions al be furnish d at the h sole expense of the Permittee. 4) A copy of each of Permittee's annual and other periodic public financial reports and those of its parent, subsidiary and affiliated corporation and other entities, as the City requests, shall be submitted to the City within thirty (30) days after receipt by Permittee of City's request for same. -14- WPX /PDT /AGR22235 C. AB 939 Reports. Permittee shall provide City, in a form satisfactory to City, information sufficient to enable City to prepare and submit in a timely manner, identification of solid waste sources, categories and types, for future Solid Waste Generation Studies and Annual Reports on solid waste generation. D. Failure to Report. The refusal, failure, or neglect of the Permittee to file any of the reports required, or the inclusion of any materially false or misleading statement or representation made knowingly by the Permittee in such report shall be deemed a material breach of the Permit Agreement, and shall subject the Permittee to all remedies, legal or equitable, which are available to the City under the Permit Agreement or otherwise. SECTION 15, RMEW OF P19REPJRMANCE AND QUALITY OF SERVICE. A. Annual Review. At City's sole option, within ninety ( 90 ) days of the first anniversary of the effective date of this Permit Agreement, the City may hold a public meeting at which the Permittee shall be present and shall participate, to review the Permittee's performance and quality of service. The reports required by this Permit Agreement regarding customer complaints shall be utilized as the basis for review. In addition, any customer may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. Within thirty (30) days after the conclusion of the public meeting, City shall issue a report with respect to the adequacy of performance and quality of service. If any noncompliance with the Permit is found, City may direct Permittee to correct the inadequacies in accordance with_, - Section 11 above. SCION 16 SYSTEM AND SMVICES SERVICES RMEW. To provide for technological, economic, and regula- tory changes in Solid Waste collection and recycling, to facilitate renewal procedures, to promote competition in the refuse and recycling industry, and to achieve a continuing, advanced Solid Waste collection and recycling system, the following system and services revio�w procedures are hereby established: A. At City's sole option, City may hold a public meeting, on or about the first anniversary date of the Permit Agreement at which the Permittee shall be present and shall participate, to review the Soli, Waste collection and -15- WPX /PDT /AGR22235 recycling system and services. Subsequent system and services review meetings may be scheduled by City each two (2) years thereafter. It is City's intent to conduct any system and services review concurrently with any annual review of performance and quality of service as provided for in Section 15, above. City shall provide ten =10) days written notice of such hearing. B. Sixty ( 60 ) days after receiving notice from the City, Permittee shall submit a report to City indicating the following: (1) All refuse collection and recycling services reported in significant refuse collection and recycling industry trade journals that are being commonly provided on an operational basis, excluding tests and demonstrations, to communities in the United States with compar- able populations, that are not provided to City; and (2) Changes recommended to improve the City's ability to meet the goals of the Act. (3) Any specific plans for provision of such new services by the Permittee, or a justification indicating why Permittee believes that such services are not feasible for the Permit Area. C. Topics for discussion and review at the system and services review hearing shall include, but shall not be limited to, services provided, feasibility of providing new services, application of new technologies, customer complaints, rights of privacy, amendments to the Permit Agreement, developments in the law, new initiatives for meeting or exceeding the Act's goals and regulatory constraints. D. City and the Permittee may each select additional topics for discussion at any systems and services review hearing. E. Not later than sixty (60) days after the conclusion of each system and service review meeting, City may issue a report. The report shall include a listing of any refuse collection and recycling services not then being provided to City that are considered technically and econom- ically feasible by City. City may require Permittee to provide such services within a reasonable time at a mutually agreed -upon price. -16- WPX /PDT /AGR22235 F-IJANVOTEFM Permittee shall provide an adequate number of vehicles and equipment for the collection and disposal, recycling and transportation services for which it is responsible under this Permit Agreement. All vehicles used by Permittee under this Permit Agreement shall be registered with the Department of Motor Vehicles of the State of California, shall have all required state and local permits, shall be kept clean and in good repair and shall be uniformly painted. Solid waste collection and recycling vehicles shall be washed at least once every seven (7) calendar days. - Permittee's name, telephone number and vehicle number shall be visibly displayed on its vehicles in letters and figures not less than five inches (5 ") high. The equipment of Permittee used under this Permit Agreement shall be subject to inspection by City on a semi - annual basis but shall not be subject to any permit fees therefor. sscrIOx is C ACCESS TO EMU' . A. Office Ho rs. Permittee's office hours shall be, at a minimum, from 8:00 a.m. to 4:00 p.m. daily, on all delivery and collection days. A representative -of Permittee shall be available during office hours for communication with the public at Permittee's principal office. Permittee shall use its best efforts to employ representatives fluent in the languages of both customers seeking assistance and employees who may be the subject of any communication. This requirement is for no other purpose than to encourage prompt and satisfactory resolution of communications between Permittee and the public. Permittee shall also maintain a local telephone number for use during normal business hours. Permittee shall have a representative or answering service available at said local telephone number during all hours other than normal office hours. City reserves the right to have City employees on site at Permittee's principal office during normal business hours to monitor Permittee's communication with the public. (1) All customer complaints shall be directed to Permittee. Permittee shall record all complaints received by mail, by telephone or in person (including date, name, address of complainant and nature of complaint). Permittee agrees to use its best efforts to resolve all complaints by close of business of the second business (Solid Waste -17- WPX /PDT /AGR22235 collection) day following the date on which such complaint is received-. service complaints may be investigated by the City Manager or the City Manager's designated representative. Unless a settlement satisfactory to complainant, Permittee and City Manager's designee is reached, the complainant may refer the matter to City Manager for review. (2) Permittee will maintain records listing the date of consumer complaints, the customer, the nature of the complaint or request, and when and what action was taken by the Permittee to resolve the complaint. All such records shall be maintained for a period of three (3) years and shall be available for inspection by City. Permittee shall prepare quarterly summaries of consumer complaints. The summaries shall be available and delivered quarterly to the City Manager or City Manager's designated representative. C. Cove ment L'aison Person. Permittee shall designate a "government liaison person" who shall be respon- sible for working with the City Manager or the City Manager's designated representative to resolve consumer complaints. SECTION 19 LION OF DIS ri' -D CQSTO M CO1FI.ATNTS. A. Permittee shall notify customers of this complaint arbitration procedure at the time customers apply for service, and subsequently, annually. B. Any customer dissatisfied with Permittee's decision regarding a complaint may ask City review the complaint. To obtain this review, customer must request City review within thirty (30) days of receipt of Permittee's response to the complaint, or within forty -five (45) days of submitting the complaint to Permittee, if Permittee has failed to. respond to the complaint. City may extend the time to request its review for good cause.. C. Before reviewing the complaint, the City Manager shall refer it to Permittee. If Permittee fails to cure the complaint within ten (10) days, the City Manager shall review the customer's complaint and determine if further action is WPX /PDT /AGR22235 warranted. City Manager may request written statements from Permittee and customer, and /or oral presentations. D. City Manager shall determine if the customer's complaint is justified, and if so, what remedy, if any, shall be imposed. The remedy under this Section shall be limited to a rebate of customer charges related to the period of breach of any of the terms of this Permit Agreement or a penalty of up to $100 for any single event or series of related events, or any actual damages. E. City Manager may delegate his duties to a designated representative. The decision of City Manager or his designee shall be final on any matter under Two Thousand Five Hundred Dollars ($2,500.00). In the event of a decision on a matter awarding two thousand five hundred dollars or more ($2,500), Permittee may seek review pursuant to administrative hearing procedures as established by City Council resolution. SECTION_ 20. INDRMN rVTf -AmrnW Avn Tvcrtn�v..a A. Indemnification of City. Permittee agrees that it shall protect, defend with counsel approved by City, which approval shall not be unreasonably withheld, indemnify and hold harmless City, its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, claims, damages, liabilities or judgments, including attorney's fees, arising out of or resulting in any way from: (i) Permittee's exercise of the Permit, unless such claim is due to the sole negligence or willful acts of the City, its officers, employees, agents or contractors; or (ii) the City's grant of this Permit to Permittee. Subject to the scope of this indemnification and upon demand of the City, made by and through the City Attorney, the Permittee shall appear in and defend the City and its officers, employees and agents in any claims or actions, whether judicial, administrative or otherwise arising out of the exercise of the Permit Agreement. B. Indemnification of Permittee. City shall indemnify, defend with counsel approved by Permittee, which approval shall not be unreasonably withheld, and hold the Permittee, its affiliates and their respective officers, directors, employees and shareholders harmless from and against any and all liabilities, losses, damages, claims, actions, causes of action, costs and expenses (including reasonable attorney's fees) arising from or resulting in any way from Permittee's exercise of the Permit, but only if due to the sole negligence or willful acts of City, its officers, employees, agents or contractors. -19- WPX /PDT /AGR22235 C. Workers, Compensation Insurance. Permittee shall obtain and maintain in full force and effect throughout the entire term of this Permit Agreement full workers compensation insurance in accord with the provisions and requirements of the Labor Code of the State of California. Endorsements that implement the required coverage shall be filed and maintained with the City Clerk throughout the term of this Permit Agreement. The policy providing coverage shall be amended to provide that the insurance shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days, prior written notice by certified mail return receipt requested has been given to City. The policy shall also be amended to waive all rights of subrogation against the City, its elected or appointed officials, employees, agents or Permittees for losse owhich arise from work performed by the named insured for the City. D. P bu lic Liabi I itv Insur ce. Permittee shall obtain and maintain in full force and effect throughout the entire term of this Permit Agreement a Broad Form Compre- hensive General Liability (occurrence) policy with a minimum limit of TWO MILLION DOLLARS ($2,000,000-00) aggregate and ONE MILLION DOLLARS ($1,000,000.00) per occurrence for bodily injury and property damage, with any self - insured retention not exceeding $200,000.00 per occurrence. The continuous availability of the self - insured retention shall be demonstrated to the satisfaction of City Manager. Said insurance shall protect Permittee and City from any claim for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from operations performed pursuant to this Permit Agreement, whether such operations be by Permittee itself, or by its agents, employees and /or subpermittees. Copies of the Policies or endorsements evidencing the above required insurance coverage shall be filed with the City Clerk. All of the following endorsements are required to be made a part of the insurance policies required by this Section: (1) "The City, its employees, agents, Permittees and officers, are hereby added as insureds as respects liability arising out of activities performed by or on behalf of Permittee." (2) "This policy shalt be considered primary insurance as respects any other valid and collectible insurance the City may possess including any self - insured retention the City may have, and any other insurance the City does possess shall be considered excess insurance and shall not contribute with it.,, -20- WPX /PDT /AGR22235 (3 ) "This insurance shall act for each insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company." (4) "Thirty (30) days prior written notice by certified mail, return receipt requested, shall be given to the City in the event of suspension, cancellation, reduction in coverage or in limits or non - renewal of this policy for whatever reason. Such notice sh. ;ill be sent to the City Clerk." The limits of such insurance coverage, and companies, shall be subject to review and approval by the City Manager every year and may be increased at that time and match the coverage provided by the City's own liability insurance Policy. Permittee shall increase the limits of such insurance coverage not later than ten (10) days after receipt of City's written notice to do so. The City shall be included as a named insured on each of the policie:=, or policy endorsements. E. Modification. The insurance requirements provided herein may be modified or waived in writing by the City Council upon the request of Permittee, provided the City Council determines such modification or waiver is in the best interests of City considering all relevant factors, including the fact that the parent of Permittee may be self- insured up to a certain acceptable amount. F. Tn urance Coyeracra. Contemporaneously with the execution of this Permit Agreement, Permittee shall deposit copies of insurance policies or endorsements evidencing the existence of policies of insurance required pursuant to this Permit Agreement. A. Permittee shall maintain all records relating to the services provided hereunder, including, but not limited to, books, customer lists, billing records, maps, Act compliance records, and customer complaints, for the full term of this Permit Agreement, and an additional period of not less than three (3) years, or any longer period required by law. The City shall have the right, upon, five ( 5 ) business days advance notice, to inspect all records, including, but not limited to, books, customer lists, billing records, maps, Act compliance records, customer complaints, and other like materials of the Permittee which reasonably relate to Permittee's compliance with the provisions of the Permit Agreement. Such records shall be made available to City at -21- WPX /PDT /AGR22235 Permittee's regular place of business, but in no event outside the County of Ventura. B. Permittee shall maintain a method of accounting to the satisfaction of City which correctly reflects the Gross Revenues and disbursements of Permittee in connection with this Permit Agreement. The method of accounting shall be separate from the accounting system used for .any other business operated by Permittee or for Permittee's personal financial affairs. C. Should any examination or audit of Permittee's records reveal an underpayment of any fee required under this Permit Agreement, the amount of such underpayment shall become due and payable to City not later than fifteen (15) days after _ written notice of such underpayment is sent to Permittee by City. Should an underpayment of more than three be discovered, Permittee shall bear the entire audit. o st nof(the s$CTrnW 2Z default A. Force W Kai P. Permittee shall not be in collect under this Permit Agreement in the event that the ion, transportation or disposal services of Permittee are temporarily interrupted or discontinued for any of the following reasons: riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such as floods, earthquakes, landslides and fires, strikes, lockouts and other labor disturbances or other catastrophic events which are beyond the reasonable control of Permittee. catastrophic events does not include the financial inability ty of the Permittee to perform or failure of the Permittee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of the Permittee. In the event a labor disturbance interrupts collection, Of solid Waste by Permittee as required transportation or disposal Agreement, City may elect to exercis. its ights dr Section 13 of this Agreement. B. Indevendent Con &r. Pernittee an independent contractor and not an officer, agent, servant or employee of City. Permittee is solely responsible for the acts and omissions of gr its officers, agents, employees, Agreement ements and subpermittees, if any. Nothing in this Permit be A shall construed as creating a partnership or joint venture between City and Permittee. Neither Permittee nor its officers, employees, agents or subpernittees shall -22- WPX /PDT /AGR22235 obtain any rights to retirement or other benefits which accrue to City employees. C. Fncroac ment p�[tt, Permittee shall obtain Blanket Encroachment Permit in advance of providing any service in the City. Special provisions regarding temporary commercial solid waste service shall apply. Permittee must notify City by 5 p.m. each Monday following any week during which bins have been delivered or picked up. Notification shall also include exact address of all delivery and /or pick- up of bins during the preceding week. D. Pavement Damage, Permittee shall be responsible for any extraordinary damage to City's driving surfaces, whether or not paved, resulting from the weight of, or any - leakage or spillage of oils, fluids or solids by, vehicles providing Solid Waste collection and transportation services under this Permit Agreement. E. Right-9f-Entry. Permittee shall have the right, until receipt of written notice revoking permission to pass is delivered to Permittee, to enter or drive on any private street, court, place, easement or other private property for the purpose of collecting or transporting Solid Waste pursuant to this Permit Agreement. F. Law to Govern• Venu . The law of the State of California shall govern this Permit Agreement. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Ventura. In the event Of litigation in U.S. District Court, exclusive venue shall lie in the Central District of California. G. Fees and GratUit es. on an annual basis, in writing, Permittee shall instruct its agents, employees, and subpermittees that requesting, soliciting, demanding, or accepting either directly or indirectly, any compensation or gratuity for the collection of Solid waste required to be collected under this Permit Agreement is prohibited. Permittee shall annually require each agent, employee, and subpermittee affected by this Permit Agreement to sign an acknowledgment of this policy. H. Arn�PS�mc�ntc an.a A=ndzent This Permit Agreement is intended to carry out City's obligations to comply with the provisions of the Act, as it from time to time may be amended, and as implemented by regulations of the California Integrated Waste Management Board ("Regulations"), as they from time to time may be amended. in the event the Act or other state or federal laws or regulations enacted -23- WPX /PDT /AGR22235 after this Permit Agreement has, been enacted prevent or preclude compliance with one or more provisions of this Permit Agreement, such provisions of the Permit Agreement shall be modified or suspended as may be determined necessary by City to comply with such state or federal laws or regulations. No other amendment to this Permit Agreement shall be valid unless in writing duly executed by the parties. I. Compliance with Municipal Code. Permittee shall comply with those provisions of the Moorpark Municipal Code which are applicable, and with any and all amendments to such applicable provisions during the term of this Permit Agreement. J. Identification Required. (1) Permittee shall provide its employees with identification for all individuals who may make personal contact with customers. (2) The Permittee shall provide a list of current employees to the City upon request. The City may require Permittee to notify customers of the form of said identification on an annual basis.. K. EMDlOVeP Appearance and Conduct. (1) Employees of Permittee working on vehicles shall wear standard uniforms. Each employee shall wear a patch displaying his or her first name on the front of the uniform. Employees shall maintain at all times as clean and neat an appearance as is possible, (2) Employees shall use their best efforts to avoid causing any disturbance or interference which may annoy commercial customers during Solid Waste collection and transportation. Employees shall pick up all Solid Waste disbursed during collection. Employees shall receive training to identify hazardous materials which are not considered Solid Waste and, therefore, may not be ollected, transported or disposed of by Permittee. authoriz (3) Permittee shall employ only those persons ed to work in the United States pursuant to the Immigration Reform Act of 1986 and any other applicable laws. -24- WPX /PDT /AGR22235 ,L. Notices. All notices required or permitted to be given under this Permit Agreement shall be in writing and shall be personally delivered of sent by United States certified mail, postage prepaid, return receipt requested, addressed as follows: To City: City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Attn: City Mana�jer Copy to: Moorpark City Attorney Burke, Williams & Sorensen 624 South Grand Avenue, 11th Floor Los Angeles, California 90017 To Permittee: Your Company or to such other address as either party may from time to time designate by notice to the other given in accordance with this Section. Notice shall be deemed effective on the date personally served or, if mailed, three (3) business days from the date such notice is deposited l.n the United States mail. M. Savings Clause and Entirety. If any non - material provision of this Permit Agreement shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the validity and enforceability of any of the remaining provisions of this Permit Agreement. N. Joint Preparation of Agreement. Should interpretation of this Permit Agreement, or any portion thereof, be necessary, it is deemed that this Permit Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Permit Agreement or caused it to be prepared. C. Indemnification i cation in Excess of Insurance Coverage. The hold harmless and indemnification provision of Section 20A shall apply regardless of whethex or not the insurance Policies required by Section 20D are determined to be applicable to or sufficient tc satisfy the losses, liabilities, fines, penalties, claims, damages, liabilities or judgments, including attorney's fees, described in Section 20A. -25- WPX /PDT /AGR22235 WITNESS the execution of this Agreement. ATTEST City Clerk CITY F MOORPARK By­_—._ . Mayor YOUR C(:)MPANY By -26- Its WPX /PDT /AGR22235 STATE OF CALIFORNIA, Ss. COUNTY OF On , 1991 before me , personally appeared personally known to me or proved to be the person who executed the within instrument entitled AGREEMENT BETWEEN THE CITY OF MOORPARK AND YOUR COMPANY, FOR THE TEMPORARY COMMERCIAL NON- EXCLUSIVE COLLECTION, TRANSPORTATION, RECYCLING AND DISPOSAL OF SOLID WASTE, as , on behalf of Your Company, a California corporation, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. DATED CORPORATE SEAL AGR22236.wo -27-