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HomeMy WebLinkAboutAGENDA REPORT 2018 0606 CCSA REG ITEM 09BCITY OF MOORPARK, CALIFORNIA City Council Meeting of June 6, 2018 ACTION Approved staff recommendation. Adopted Reso No. 2018-3705 BY M. Benson Consider a New 12-year Solid Waste Franchise Agreement with USA Waste of California, Inc., a Subsidiary of Waste Management Holdings, Inc., and Consider a Resolution Rescinding, in Part, Resolution No. 95-1169 and Updating the City’s AB 939 Fees. Staff Recommendation: 1) Consider this item concurrently with Public Hearing Item 8.C. on the agenda, which considers a resolution establishing the maximum rates to be charged to customers for collection of solid waste, as contained in the Solid Waste Franchise Agreement. 2) Approve, and authorize the Mayor to execute, a new 12-year Solid Waste Franchise Agreement with USA Waste of California, Inc., subject to City Manager and City Attorney approval of final language; 3) Opt to not phase in rates with one half of the rates going into effect on July 1, 2018, and half of the rates going into effect on January 1, 2019; and 4) Adopt Resolution No. 2018-___ rescinding, in part, Resolution No. 95-1169 and updating the City’s AB 939 Fees. Item: 9.B. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Brian Chong, Assistant to the City Manager DATE: May 23, 2018 (CC Meeting of 6/6/2018) SUBJECT: Consider a New 12-year Solid Waste Franchise Agreement with USA Waste of California, Inc., a Subsidiary of Waste Management Holdings, Inc., and Consider a Resolution Rescinding, in Part, Resolution No. 95-1169 and Updating the City’s AB 939 Fees BACKGROUND Because of the close relationship between this agenda item and the public hearing to consider new maximum solid waste rates to become effective July 1, 2018, it is recommended that the City Council consider these two items concurrently. The City’s current solid waste franchise agreements were originally granted in 2002, and negotiations for a new agreement have been ongoing. The City’s agreements with G.I. Industries (Waste Management) are currently set to expire on June 30, 2018. The City’s agreements with Moorpark Rubbish Disposal are set to expire on December 31, 2027, and these agreements will be superceded by the new franchise agreement. G.I. Industries acquired the Moorpark Rubbish Disposal’s franchise agreements following City Council approval on December 6, 2017. On December 6, 2017, the City Council also approved a Memorandum of Understanding (MOU) between the City that outlined many of the major points of a new agreement that had been negotiated between the City and G.I. Industries, at the same time the City Council approved the transfer of the Moorpark Rubbish Disposal franchise agreements to G.I. Industries. City Council review and approval of the final new solid waste franchise agreement, based on the points contained in the MOU, is now requested. Item: 9.B. 233 It should be noted that solid waste rates have not been changed since January 1, 2011, even as the costs of providing solid waste service and disposing of solid waste have increased during that time. As a result, Moorpark residents and businesses have been paying very low rates over the past seven years compared to nearby communities. As a further result, since increases were forgone for many years, the proposed rate increases are larger than any one year’s increase would normally be. In 2002, the City granted exclusive solid waste franchise agreements to G.I. Industries (GI) (for generally the western half of the City) and to Charles Anderson and SEA/SUE, Inc. (for generally the eastern half of the City). In 2004, the City consented to the transfer of the Charles Anderson and SEA/SUE, Inc. franchise agreement to Moorpark Rubbish Disposal LLC. On December 6, 2017, the City Council consented to the transfer of the Moorpark Rubbish Disposal LLC franchise to G.I. Industries, which made G.I. Industries the sole franchisee for the entire City of Moorpark. During negotiations with G.I. Industries on the new Franchise Agreement, G.I. Industries requested that the legal entity for the new agreement be USA Waste of California, Inc. Both are subsidiaries of Waste Management. DISCUSSION Items Carried Over from the December 6, 2017 Memorandum of Understanding The proposed new Solid Waste Franchise Agreement largely follows the points agreed to in the Memorandum of Understanding with G.I. Industries approved by the City Council on December 6, 2017. These key points are summarized below, with deviations from the MOU as noted: • Term: The agreement has a twelve-year term. However, because the new agreement’s effective date is later than anticipated by three months, the proposed term is now through June 30, 2030, three months later than indicated in the MOU. • New Rates and Rate Escalators: The agreement sets rates based on current Simi Valley rates and escalators, as the average home/business in Moorpark is roughly the same distance from the Simi Valley Landfill and Recycling Center (SVLRC) as the average home/business in Simi Valley. Various analyses of the proposed rates and escalators are discussed later in this report. • Commercial Organics Collection: The agreement establishes new state- mandated commercial organics collection, for commercial producers of food waste (such as restaurants and grocery stores) that are required by state to divert food waste away from landfills and toward composting operations. 234 • Free Landfill Days: The agreement increases the number of Free Landfill Days at the SVLRC for Moorpark residents from two per year to three per year, beginning in 2019. • Free Bulky Item Pickups: Moorpark residents receive two bulky item pickups per year, for free. The agreement increases the number of bulky items per pickup from two items per pickup to three items per pickup, which effectively increases the number of free bulky item pickups from four to six per year. Additional bulky item pickups may be scheduled for a fee. • Hard-to-Access Service and Fee: The agreement initiates “Scout Service,” whereby the franchisee will move trash cans to/from a street curb for pickup, for a fee. Users of this service are typically homes located on flag lots or along streets that predate modern road standards, resulting in residents having to place their trash cans on a different street for pickup. The fee for Scout Service will be established on a case- by-case basis, since the time needed to provide the service will potentially vary widely. The agreement requires the franchisee to offer the service; it does not require any individual customer to use the service. • Street Sweeping: The agreement requires the franchisee to provide street sweeping services on public streets and City-owned parking lots at the same frequencies that the City currently provides, resulting in a savings to the City of approximately $111,700 per year in local transportation funds, which may then be applied to other local transportation projects. The agreement further requires GI to offer to sweep private residential streets with curb and gutter, under ownership by homeowners’ associations, once per month, at no cost to the City or the homeowners’ associations. • Freeway Litter Control: The agreement requires the franchisee to provide a litter control program along the 23 and 118 Freeways, and interchanges, through Moorpark. • Local Streets Access Agreement: The agreement requires that the Local Streets Access Agreement with the SVLRC (also owned by Waste Management) be extended for the duration of the new Solid Waste Franchise Agreement. Under the agreement, the SVLRC pays a monthly fee to the City’s General Fund (approximately $60,000 per year) to offset the damage done by garbage trucks to City streets. • Community Service Contribution and Administrative Reimbursement: The agreement requires the franchisee to provide the City’s General Fund with a one-time contribution of $210,000 to be used for community services provided by the City. The 235 franchisee must further reimburse the City for $10,000 worth of administrative costs used to develop and negotiate the new Franchise Agreement. • Annual Impact Fee: The agreement requires the franchisee to provide the City with $187,300 per year to the City’s General Fund, to be used at the City’s discretion, to offset the impacts of solid waste service on the community. • Household Hazardous Waste Contribution: The agreement requires the franchisee to reimburse the City $35,000 per year toward its household hazardous waste collection programs, which are currently funded in the City’s Solid Waste Fund. • Reimbursement for Annual Rate Reviews: The agreement requires the franchisee to reimburse the City $2,700 per year to the City’s General Fund, toward the staff costs of completing annual rate reviews. • Environmentally Preferred Vehicles: The agreement requires the franchisee to convert its entire fleet of collection vehicles to comply with all applicable California Air Resources Board (CARB) requirements. • Mandatory Collection Audit: The MOU called for the franchisee to take over the City’s semiannual Mandatory Collection Audit, whereby the City would contact residents who did not have solid waste service, as required by the Moorpark Municipal Code, and advise the residents to initiate service. During negotiations with the franchisee, however, it was discovered that the franchisee’s new billing software automatically sends such notices to residents in real time as bills go unpaid or as services are cancelled and not restarted. Thus, the system negates the need to do a semiannual audit; therefore, this MOU item is not contained in the new Franchise Agreement Analysis of Rates The City’s 2002 franchise agreements contain formulas for rate escalators over the lifetime of the agreements, which are intended to account for inflation and the costs of doing business that increase over time. However, the City’s franchisees agreed to defer rate increases since 2011, when the last rate increases in Moorpark were implemented. As a result of deferred rate increases, Moorpark residents and businesses saved significant amounts of money over the past six years, as shown on the following page: 236 Table 1: Moorpark Customer Savings Due to Deferred Rate Increases (January 2012 – June 2018) Customer Type Savings Due to Deferred Rate Increases Residential, Standard Service $194.90 Commercial Trash (3.0-cu. yd. bin, 1x/ week) $1,151.16 Commercial Recycling (3.0-cu. yd. bin, 1x/week) $836.76 Commercial Trash + Recycling (3.0-cu. yd. bin, 1x/week) $1,987.92 Because solid waste rates have not been increased in Moorpark since January 2011, Moorpark residents and businesses currently enjoy the lowest rates among nearby cities, which increased their rates commensurate with their franchise agreements over the past seven years. A comparison of the typical monthly rates in Moorpark, Simi Valley, and Thousand Oaks is provided below. Table 2: Comparison of Current Rates Moorpark, Simi Valley, and Thousand Oaks Customer Type Moorpark (Actual) Moorpark (2002 Formulas Applied) Simi Valley Thousand Oaks Residential, Standard Service $26.36 $30.04 $29.88 $30.83 Commercial Trash (3.0-cu. yd. bin, 1x/ week) $142.02 $162.88 $152.86 $161.80* Commercial Recycling (3.0-cu. yd. bin, 1x/week) $74.31 $89.57 $103.19 $48.54* * Thousand Oaks reduces recycling rates to encourage commercial recycling. The above table also shows that rates in Moorpark, under the 2002 agreements’ formulas, would be generally consistent with rates in Simi Valley and Thousand Oaks. Because those rate increases were deferred, however, Moorpark residents and businesses currently enjoy lower-than market solid waste rates. Pursuant to the MOU, the agreement bases new rates on the current rates paid by Simi Valley residents and businesses, based on the logic that the typical home/business in Moorpark is roughly the same distance from the Simi Valley Recycling and Landfill Center as the typical home/business in Simi Valley. As such, the amount of money received by the franchisee from the typical Moorpark customer, after City fees, should be roughly the same as that from the typical Simi Valley customer. 237 With actual franchisee revenues the same between the two cities, however, Moorpark customers will have higher rates than Simi Valley because Moorpark has a higher AB 939 Fee than Simi Valley. Passed by the State of California in 1989, AB 939 required local agencies to develop and implement recycling plans designed to divert trash from landfills. Local agencies established AB 939 Fees to fund these efforts. Moorpark’s AB 939 Fee is set at between $1.14 and $1.20 per month (depending on service level) for residential customers and at 8% of revenues for commercial customers. This fee results in more revenue for Moorpark’s AB 939 programs than Simi Valley’s programs, and the revenues manifest themselves in expanded services available in Moorpark that are not available in Simi Valley, such as tri-annual free paper shredding events, tri- annual free electronic waste collection events, fluorescent light bulb drop-offs, household battery collection, discounted pricing for backyard composters, and annual used cooking oil drop-off events. A comparison of the proposed rates and what the rates would have been if the rate escalator formulas from the 2002 Franchise Agreements were applied is provided below: Table 3: Comparison of Proposed Moorpark and Rates Under 2002 Formulas Customer Type 2018 Monthly Rate (2002 Formulas) Proposed 2018 Monthly Rates Difference Residential, Standard Service $30.04 $30.63 +$0.59 Commercial Trash (3.0-cu. yd. bin, 1x/ week) $162.88 $168.50 +$5.62 Commercial Recycling (3.0-cu. yd. bin, 1x/week) $89.57 $113.75 +24.18 There is a significant gap between the 2018 monthly rates based on the 2002 formulas and the proposed rates. This is gap is related to a shift in the global recyclables commodity markets, which is affecting the solid waste industry throughout California. China is the end market that purchases many recyclables commodities generated by the California solid waste industry, including such commodities as scrap paper, plastics, and metals. The Chinese government has established contamination standards, whereby recyclables commodities may only have a certain amount of contamination to be accepted. In essence, this means that a recyclable pizza box should be mostly cardboard and not mostly dried out cheese and grease. China is currently in the process of tightening its limits on recyclables contamination. For example, China currently accepts a 1.5% contamination rate for scrap paper; they are currently reducing it to between 0.3% and 1.0%. Standards for other materials are similar. In practice, this “green wall” affects the domestic recyclables markets in two ways that both drive the cost of recycling up. First, in order to meet the lower contamination rates, recycling companies must better sort and more thoroughly clean what they collect. This drives up 238 their costs of doing business. Second, recycling companies currently exporting to China will have fewer options to sell their commodities, thereby driving down the prices received for the commodities. To offset the higher costs and lower revenues associated with the current recycling industry market, local agencies are approving one-time adjustments to ensure the continued viability of recycling in California. Simi Valley, for example, set its 2018 rate incorporating a one-time adjustment of $1.64 per month for residential and a $1.95 per cubic yard, per month commercial rate (so a 3.0-cubic yard bin serviced once per week increased by $25.37 per month). Thousand Oaks approved its 2018 rates without making an adjustment, but advised its City Council that “policy changes in the Chinese market for recyclables…will likely necessitate adjustments in processing methods and a request to City Council for additional increases.” A full listing of all proposed rates is provided as Exhibit 1 of the draft Franchise Agreement, and a comparison of all current and proposed Moorpark rates is provided as Attachment 2. A comparison of the most common residential and commercial rates between Moorpark, Simi Valley, and Thousand Oaks is shown below: Table 4: Comparison of Proposed Moorpark Rates with Simi Valley and Thousand Oaks Customer Type Moorpark (Proposed) Simi Valley Thousand Oaks Residential, Standard Service $30.63 $29.88 $30.83 Commercial Trash (3.0-cu. yd. bin, 1x/ week) $168.50 $152.86 $161.80* Commercial Recycling (3.0-cu. yd. bin, 1x/week) $113.75 $103.19 $48.54* * Thousand Oaks reduces recycling rates to encourage commercial recycling, and a further increase later in 2018 is expected. Senior Residential Rates, a New Senior Discount, and Partial Reduction of AB 939 Fee Currently, Moorpark residents have two base levels of service to choose from – Regular Service (64-gallon trash cart, 64-gallon recyclables cart, and 96-gallon yard waste cart for $26.36 per month) and Super Recycler Service (32-gallon trash cart, 64-gallon recyclables cart, and 64-gallon yard waste cart for $19.45 per month). The “Senior Service Rate” (available to residents aged 62+) is identical to the Super Recycler Service in all ways, except for the name. As such, in practice, there is currently not a senior discount in the current rates, since customers of any age may select Super Recycler Service. 239 Under the new Franchise Agreement, seniors selecting Regular Service with full-sized carts will have a monthly maximum rate of $25.64 instead of the non-Senior rate of $30.63. This cohort of residents will actually see a rate decrease from the current rate of $26.36 per month. When the Solid Waste Ad Hoc Committee reviewed the new Franchise Agreement rates based on the provisions of the December 6, 2017 MOU, the Committee expressed concern about the size of the maximum rate increase for existing senior customers who are receiving 32-Gallon Service. Under the MOU’s formulas, maximum rates for these customers would increase from $19.45 to $25.64 per month. The Committee directed staff to re-enter negotiations with the franchisee to address its concern. Waste Management agreed to apply the same percentage discount (16.29%) for seniors selecting 32-Gallon Service as seniors selecting Regular Service. This results in seniors selecting the 32-Gallon Service having a lower maximum monthly rate of $21.46 (instead of $25.64 as agreed to in the MOU), and an effective monthly increase from $19.45 today to $21.46. In exchange for this concession, Waste Management requested that the City reduce its AB 939 Fee for this class of customers by the same 16.29%. In effect, this means that the City’s AB 939 Fund, which funds the City’s Solid Waste programs, will forego $0.19 of revenue per account, per month, to accomplish a rate reduction of $4.18 for this class of customers. There are approximately 325 current customers that would be affected by this rate. The proposed new Solid Waste Franchise Agreement incorporates these two deal points to apply the senior discount to seniors selecting 32-Gallon Service. A resolution effectuating the AB 939 Fee reduction is provided as Attachment 3. Rate Escalators The MOU contains provisions for annual rate escalators to be substantially the same as those in effect in Simi Valley. Based on the same logic that the cost of providing solid waste services will be similar in Moorpark and Simi Valley, so too will the cost increases over the term of the new Solid Waste Franchise Agreement. The new rate escalator derived from the Simi Valley rate escalator is comprised of two parts. First, beginning January 1 of each year, all rates will be adjusted by 70% of the Consumer Price Index (CPI) for the Los Angeles-Long Beach-Anaheim area, as measured from September of each year. By comparison, the current rate escalators, rates are adjusted annually by 86% of CPI. This specific change has the effect of slowing rate increases over time. 240 Second, 30% of the percent change in the Landfill Tipping Fee, which is the per-ton charge set by Ventura County that haulers pay to dispose of waste, is applied to the rate. Under the current fee, 100% of change in dollar amount in the Landfill Tipping Fee was passed on to customers. This specific change generally has the effect of faster rate increases. In making this swap to the Simi Valley formula, this more modernized rate escalator makes the rate increases less reliant on CPI and more reliant on cost trends in the solid waste industry, benchmarking on Ventura County’s annual assessment of disposal costs at landfills. The year-to-year effect of this change can vary, depending on how inflation (via CPI) costs move relative to tipping fees. In some years, this change will have a net effect of slower rate increases. Applying the formula to the 2015 rates, for example, when inflation was at 1.16% and tipping fees were unchanged, would have resulted in a smaller increase than under the prior rate escalator. However, in general, staff believes the net effect of these two changes will generally be faster increases than the current formula. To illustrate this, applying the new formula to the 2012-2018 time period for standard residential service, the rates would have escalated an additional $1.44, or 4%, after seven years’ worth of rate increases. However, staff believes that this formula is more reflective of tracking costs to actual changes in the global solid waste economy. The new Franchise Agreement also contains a floor and a cap to the rate increases/decreases over time. Rates may not increase by more than 5% in any one year, but the overage will be carried forward to a subsequent year when the rate increase is less than 5%. Conversely, rates may not actually decrease from year to year. If this occurs, then the decrease will be carried forward and applied to a subsequent year when the formulas call for a rate increase. The new Franchise Agreement also contains a “Most Favored City” clause, whereby WM cannot charge a higher equivalent rate to Moorpark customers than the average rate charged to customers of Simi Valley and Thousand Oaks. It is important to note that this clause is applied to the base rates that the franchisee receives, not to the rate paid by customers. Because Moorpark has a higher AB 939 Fee and Franchise Fee than Simi Valley – and provides more services than Simi Valley, as described above – the actual rates in Moorpark will be higher than Simi Valley’s rates. This calculation is also based on equivalent services and would not be subject to manipulation if one City chose to subsidize one rate with another. The City of Thousand Oaks, for example, currently charges higher trash rates to achieve lower recyclables rates; this subsidy must be factored in when implementing the Most Favored City clause. 241 There is also an Extraordinary Rate Provision clause in the new Franchise Agreement. Under this clause, the franchisee could request an additional rate increase based on extraordinary circumstances, such as a sudden increase in fuel prices or a disruption in the recyclables markets as is currently occurring. Many cities, including Simi Valley, have exercised the extraordinary rate provision to address the disruption to the recyclables markets. However, it is hoped that the new rate escalator formula, by tying rate increases to landfill cost increases will preclude the need to use this provision. If the franchisee does request an extraordinary rate adjustment, then the City Council will review and determine the reasonableness of the request prior to approving, denying, or partially approving an extraordinary rate adjustment. Option to Phase in Rate Increases As Moorpark residents and businesses have enjoyed seven years of low solid waste rates, resetting the rates to reflect the current costs of providing solid waste services, as well as needing to address the increasing costs in providing recyclables services as a result of Chinese policy, the proposed rate increase is larger than a normal one-year increase. The table below shows the increase for the most popular residential and commercial rates. Table 5: Comparison of Moorpark Current and Proposed Rates Customer Type Current Rate Proposed Rate Difference Residential, Standard Service $26.36 $30.63 +$4.27 Commercial Trash (3.0-cu. yd. bin, 1x/ week) $142.02 $168.50 +$26.48 Commercial Recycling (3.0-cu. yd. bin, 1x/week) $74.31 $113.75 +$39.44 To put these numbers into perspective, the 2018 rate increase in Simi Valley, which included addressing the Chinese recycling market but only one year of increases, was +$2.49 (+$4.27 proposed for Moorpark) for standard residential service, +$4.61 (+$26.48) for typical commercial trash service, and +$27.02 for typical commercial recyclables service (+$39.44). Under the MOU, the City has the option to phase in the solid waste rate increases over a two-year period rather than all at once, with half of the rate increases becoming effective on July 1, 2018, and the other half becoming effective on January 1, 2019, before any other rate adjustments are calculated and applied. Doing so would provide for a “soft landing” for customers who would then have more time to absorb the rate increases. However, it would be unreasonable to require the franchisee to start incurring the full expenses required by the agreement without being able to fully collect revenues to pay for those expenses. Accordingly, the MOU includes language that, if 242 the City opts to phase in the rate increases over two years, then various fees and reimbursements paid by the franchisee to the City will be adjusted downward correspondingly. While the precise financial impact of phasing in rates is difficult to calculate due to the number of variables involved, staff estimates that phasing in the rate increases over two years would result in approximately $125,000 in foregone revenue for the City. If the rates were phased in over a two-year period, then the initial new rates becoming effective on July 1, 2018 would be as follows: Table 6: Effect of a Two-Year Phase In of New Rates Customer Type Moorpark (Current) Moorpark (Phased) Simi Valley Thousand Oaks Residential, Standard Service $26.36 $28.50 $29.88 $30.83 Commercial Trash (3.0-cu. yd. bin, 1x/ week) $142.02 $155.26 $152.86 $161.80* Commercial Recycling (3.0-cu. yd. bin, 1x/week) $74.31 $94.03 $103.19 $48.54* * Thousand Oaks reduces recycling rates to encourage commercial recycling, and a further increase later in 2018 is expected. A full comparison of the current rates, the proposed rates, and the proposed phased rates is provided in Attachment 2. Other Provisions of the Proposed Franchise Agreement Like the current franchise agreements, the proposed agreement continues to require the franchisee to provide various services provided to the City at no cost: • Free trash service at City facilities, such as parks and City Hall • Free servicing of trash cans in the public right-of-way (at City’s option), such as at bus stops or along High Street • Free pick-up of abandoned items from the public right-of-way, which is most frequently furniture on sidewalks. • A limited number of free roll-off containers for City use at City construction projects and at special events such as the 3rd of July • Free delivery of compost bins, for residents purchasing them through the City’s discount compost bin program The proposed agreement also requires the franchisee to have an on-line payment option. Customers in the G.I. Industries franchise area have been able to make on-line 243 payments, but customers in the former Moorpark Rubbish Disposal franchise area have historically not been not able make on-line payments. Pursuant to the MOU, the City and Waste Management created a plan to remove residential curbside trash containers from High Street, between Moorpark Avenue and Spring Road. There are currently nine residential customers with curbside service on High Street, which is unsightly for a mostly commercial area on trash pickup days and in conflict with creating a pedestrian-friendly downtown. The proposed franchise agreement would allow the City to construct a trash enclosure, at the City’s expense, to contain commercial-size bins for trash, recyclables, and yard waste. These residential customers would then have the option to utilize these larger bins in lieu of curbside bins. The MOU provides that these customers would also only have to pay the standard residential monthly rates, instead of the higher commercial rates, although Waste Management would still service the trash enclosure with a commercial collection truck. It should be noted that implementation of this plan would require future consideration and a future appropriation from the City Council. To assist in the accomplishment of diversion targets and successful implementation of statewide recycling and organics diversion programs, the agreement requires the franchisee to conduct regular site visits to commercial customers that are not participating in recycling and/or organics programs. Sometimes, customers do not participate because there is insufficient space to place recyclables or organics bins. However, site visits can often identify ways to overcome obstacles. For example, if a site visit shows that a non-recycling business is primarily putting cardboard in its trash, then the business might downsize its existing large trash bin and replace it with a smaller trash bin and a smaller recycling bin instead. These visits also serve as a good educational opportunity for customers about solid waste best practices and regulations. The agreement requires Waste Management to complete at least one on-site visit to identified applicable customers by December 31, 2018 and then make at least two on- site visits per year after that until applicable recycling and organics services are initiated. The agreement also requires the franchisee to complete community outreach to promote diversion by participating in public events, giving informational brochures to new customers, and providing information with current programs and rules to all customers on an annual basis. The agreement also includes provisions for the franchisee to assist with emergencies and natural disasters by providing equipment and labor needed to collect, clean up, and remove debris resulting from an emergency or natural disaster. Waste Management performed such services during the recent Thomas Fire incident for communities directly impacted by the fire. Under the agreement, the City would pay the Company for 244 the services based on the labor, vehicles, and disposal costs associated with such emergency services. During the 12-year term of the proposed agreement, some state and/or federal laws related to solid waste will likely change. The agreement provides that, if this occurs and the franchisee is compelled to perform additional services, the franchisee will provide a proposal to the City to perform those services and, if warranted, charge an additional fee. For example, if state law mandates residential curbside organics collection, as is now being required for some commercial customers, then the City could direct the franchisee to provide a proposal to provide residential curbside organics collection. To offset the associated cost of obtaining, operating, and driving an additional vehicle to provide the service to every residential customer in Moorpark, a rate increase could be justified. Finally, the agreement contains provisions covering insurance requirements for the franchisee, reporting requirements, recordkeeping requirements, documentation of customer complaints, and customer service standards. Relationship to Open Space Acquisition from Waste Management The Memorandum of Understanding, entered into by the City and Waste Management on December 6, 2017, required the City and WM to negotiate a Purchase and Sale Agreement for the sale of 256 acres of open space and the donation of one acre of open space to the City at no charge. A Purchase and Sale Agreement for the first phase (125 acres being obtained using grant funds from the County of Ventura) of the open space acquisition is currently being considered as a separate agenda item by the City Council. If approved by the City Council, the Agreement will be used as a template for acquisition of the one-acre donation (second phase) and the subsequent 130-acre purchase (third phase) and presented to the City Council for review and approval at the June 20, 2018 City Council meeting. The City has the resources to purchase the additional 130-acres; however, the City Council has not yet identified the specific funding source to complete the third phase, with a purchase price of $1,560,000 ($12,000 per acre) established by the MOU with Waste Management; staff will return also with options to fund that acquisition at the June 20, 2018 City Council meeting. FISCAL IMPACT The proposed agreement would result in $220,000 in one-time revenue to the City in the form of the Community Service Contribution and Administrative Reimbursement contained in the agreement. The agreement would also result in ongoing annual fees 245 and contributions to the City of $225,000, consisting of the Annual Impact Fee, Household Hazardous Waste Contribution, and Annual Rate Review Reimbursement. The agreement’s requirement to extend the City’s Local Street Access Agreement with the Simi Valley Landfill and Recycling Center would also guarantee continued reimbursement for damage to City streets (currently approximately $60,000 per year). By requiring the franchisee to assume responsibility for street sweeping, the City will save approximately $111,700 annually in local transportation funds. The City will also yield higher franchise and AB 939 fees, although the amount will depend on inflation and future rates throughout the term of the agreement. Staff estimates that these revenue streams would increase by approximately $110,000 during the first full year of implementation. Finally, if the City Council opts to phase in the new maximum solid waste rates, then the City will forego approximately $125,000 in these revenues, one-time. STAFF RECOMMENDATION ROLL CALL VOTE 1. Consider this item concurrently with Public Hearing Item 8.C. on the agenda, which considers a resolution establishing the maximum rates to be charged to customers for collection of solid waste, as contained in the Solid Waste Franchise Agreement. 2. Approve, and authorize the Mayor to execute, a new 12-year Solid Waste Franchise Agreement with USA Waste of California, Inc., subject to City Manager and City Attorney approval of final language. 3. Opt to not phase in rates with one half of the rates going into effect on July 1, 2018, and half of the rates going into effect on January 1, 2019. 4. Adopt Resolution No. 2018-___ rescinding, in part, Resolution No. 95-1169 and updating the City’s AB 939 Fees. Attachment 1 – Proposed Solid Waste Franchise Agreement Attachment 2 – Comparison of Current and Proposed Rates Attachment 3 – Resolution No. 2018-___ Attachment 4 – Memorandum of Understanding with G.I. Industries. Inc. 246 FRANCHISE AGREEMENT between the CITY OF MOORPARK, a California municipal corporation and USA WASTE OF CALIFORNIA, INC., a Delaware corporation for FOR PROVIDING RESIDENTIAL AND COMMERCIAL SOLID WASTE SERVICES * * * ___________, 2018 247 ARTICLE 1. DEFINITIONS ........................................................................................... 2 1.1 Definitions ................................................................................................ 2 1.1.1 Account ......................................................................................... 2 1.1.2 Act ................................................................................................. 2 1.1.3 Activation Fee ............................................................................... 2 1.1.4 Affiliate .......................................................................................... 2 1.1.5 Applicable Law .............................................................................. 3 1.1.6 Bin ................................................................................................. 3 1.1.7 Bin Service .................................................................................... 3 1.1.8 Bulky Waste .................................................................................. 3 1.1.9 Business Days .............................................................................. 3 1.1.10 CalRecycle .................................................................................... 3 1.1.11 Cart ............................................................................................... 4 1.1.12 Cart Service .................................................................................. 4 1.1.13 City ................................................................................................ 4 1.1.14 City Facilities ................................................................................. 4 1.1.15 City Manager ................................................................................. 4 1.1.16 Collection ...................................................................................... 4 1.1.17 Commercial Premises ................................................................... 4 1.1.18 Company ....................................................................................... 5 1.1.19 Complaint ...................................................................................... 5 1.1.20 Composting and Compost ............................................................. 5 1.1.21 Construction and Demolition Waste .............................................. 5 1.1.22 Contamination Fee ........................................................................ 5 1.1.23 Customer ...................................................................................... 5 248 1.1.24 Designated Disposal Site .............................................................. 6 1.1.25 Designated Organic Waste Facility ............................................... 6 1.1.26 Designated Recycling Facility ....................................................... 6 1.1.27 Disposal Site ................................................................................. 6 1.1.28 Dwelling Unit ................................................................................. 6 1.1.29 Effective Date ................................................................................ 6 1.1.30 Environmental Laws ...................................................................... 6 1.1.31 E-Waste ........................................................................................ 7 1.1.32 Food Waste ................................................................................... 7 1.1.33 Franchise Fee ............................................................................... 7 1.1.34 Free Landfill Days ......................................................................... 7 1.1.35 Green Waste ................................................................................. 7 1.1.36 Gross Receipts.............................................................................. 7 1.1.37 Hazardous Substance ................................................................... 7 1.1.38 Hazardous Waste .......................................................................... 8 1.1.39 Holiday .......................................................................................... 8 1.1.40 Household Hazardous Waste........................................................ 8 1.1.41 Late Fee ........................................................................................ 9 1.1.42 Material Recovery Facility (“MRF”) ................................................ 9 1.1.43 Multi-Family Premises ................................................................... 9 1.1.44 Municipal Code ............................................................................. 9 1.1.45 Operative Date .............................................................................. 9 1.1.46 Organic Waste .............................................................................. 9 1.1.47 Overage Fee ................................................................................. 9 1.1.48 Private Street ................................................................................ 9 249 1.1.49 Processing .................................................................................. 10 1.1.50 Public Resources Code ............................................................... 10 1.1.51 Rate Schedule............................................................................. 10 1.1.52 Recyclable Materials ................................................................... 10 1.1.53 Recycling .................................................................................... 10 1.1.54 Refuse ......................................................................................... 10 1.1.55 Residential Account or Customer ................................................ 11 1.1.56 Residential Premises .................................................................. 11 1.1.57 Roll-off Box ................................................................................. 11 1.1.58 Roll-off Service ............................................................................ 11 1.1.59 Single-Family Premises .............................................................. 11 1.1.60 Solid Waste ................................................................................. 11 1.1.61 Solid Waste Handling Services ................................................... 12 1.1.62 Special Waste ............................................................................. 12 1.1.63 Temporary Service ...................................................................... 12 1.1.64 Universal Waste .......................................................................... 12 ARTICLE 2. GRANT AND ACCEPTANCE OF FRANCHISE ...................................... 12 2.1 Grant and Acceptance of Franchise ...................................................... 12 2.2 Exclusive Nature of Franchise ............................................................... 13 2.3 Operative Date ....................................................................................... 13 2.4 Term of Agreement ................................................................................ 13 2.5 Conditions to Effectiveness of Agreement ............................................. 13 2.6 Delegation of Authority........................................................................... 14 2.7 Limitations on Scope of Franchise ......................................................... 14 2.8 City’s Right to Direct Changes ............................................................... 16 250 2.8.1 General ....................................................................................... 16 2.8.2 New Diversion Programs ............................................................ 16 2.8.3 City’s Right to Acquire Services .................................................. 16 2.9 Ownership of Solid Waste ...................................................................... 17 2.10 Company Status .................................................................................... 17 2.11 Company Authorization.......................................................................... 17 2.12 Annexations ........................................................................................... 17 ARTICLE 3. DIRECT SERVICES ................................................................................ 18 3.1 Solid Waste Collection Services ............................................................ 18 3.1.1 Refuse Cart Service .................................................................... 18 3.1.2 Refuse Bin Service ...................................................................... 19 3.1.3 Refuse Roll-off Service ............................................................... 19 3.2 Recyclable Materials Collection Services .............................................. 20 3.2.1 Recyclable Materials Collection – Residential Solid Waste Customers ........................................................................ 20 3.2.2 Recyclable Materials Collection – Commercial Customers ................................................................................... 20 3.2.3 Construction and Demolition Waste Recycling ........................... 21 3.2.4 Contaminated Recycling Containers ........................................... 21 3.2.5 Marketing and Sale of Recyclable Materials ............................... 22 3.3 Organic Waste Collection Services ........................................................ 22 3.3.1 Green Waste Collection – Residential Refuse Cart Service Customers ...................................................................... 22 3.3.2 Organic Waste Collection – Refuse Bin Service, Roll-off Service and Commercial Cart Customers ....................... 23 3.4 Additional Services to Customers .......................................................... 23 3.4.1 On-Call Bulky Waste Pick-up ...................................................... 23 251 3.4.2 Move In/Move Out Service .......................................................... 24 3.4.3 Scout Service .............................................................................. 24 3.4.4 Holiday Tree Collection Program ................................................ 24 3.4.5 Holiday Cleanup Service ............................................................. 24 3.4.6 Free Landfill Days ....................................................................... 25 3.4.7 Information for New Customers................................................... 25 3.4.8 Other Services ............................................................................ 25 3.5 Additional Services to City ..................................................................... 25 3.5.1 Collection From City Facilities ..................................................... 25 3.5.2 Roll-off Containers for City Use ................................................... 26 3.5.3 Abandoned Item Collection ......................................................... 26 3.5.4 Freeway Litter Control ................................................................. 26 3.5.5 Street Container Service ............................................................. 26 3.5.6 High Street Trash Containers ...................................................... 27 3.5.7 Street Sweeping .......................................................................... 27 3.5.8 Compost Bin Distribution Program .............................................. 27 3.6 Diversion ................................................................................................ 27 3.6.1 State Diversion Requirements .................................................... 27 3.6.2 AB 341/AB 1826 Outreach .......................................................... 28 3.6.3 End Uses for Green Waste ......................................................... 29 3.7 Operations ............................................................................................. 29 3.7.1 Schedules ................................................................................... 29 3.7.2 Vehicles ...................................................................................... 29 3.7.3 Containers ................................................................................... 32 3.7.4 Litter Abatement .......................................................................... 33 252 3.7.5 Personnel .................................................................................... 34 3.7.6 Identification Required ................................................................ 35 3.7.7 Fees and Gratuities ..................................................................... 35 3.7.8 Non-Discrimination ...................................................................... 35 3.7.9 Coordination with Street Sweeping Services .............................. 35 3.7.10 Change in Collection Schedule ................................................... 35 3.7.11 Report of Accumulation of Solid Waste ....................................... 36 3.8 Disaster and Emergency Service ........................................................... 36 3.8.1 Preparedness .............................................................................. 36 3.8.2 Disaster and Emergency Service ................................................ 36 3.8.3 Additional Costs .......................................................................... 37 3.8.4 City Wide Effort to Manage Disaster Debris ................................ 37 3.9 Transportation of Solid Waste ................................................................ 37 3.10 Solid Waste and Recycling Disposal Guarantee .................................... 38 3.11 Disposal of Solid Waste and Processing Facilities ................................ 38 3.11.1 Designated Disposal Sites .......................................................... 38 3.11.2 Designated Recycling Facility ..................................................... 38 3.11.3 Designated Organic Waste Facility ............................................. 39 3.11.4 Facility Requirements .................................................................. 39 3.12 Annual Route Audit ................................................................................ 39 3.13 Service Exceptions ................................................................................ 40 ARTICLE 4. OTHER SERVICES ................................................................................ 40 4.1 Services and Customer Billing ............................................................... 40 4.1.1 Service Description ..................................................................... 40 4.1.2 Residential Billing Discounts ....................................................... 41 253 4.1.3 Billings to Accounts ..................................................................... 41 4.1.4 Account Delinquency .................................................................. 42 4.2 Customer Service .................................................................................. 42 4.2.1 Office Hours ................................................................................ 42 4.2.2 Website ....................................................................................... 43 4.2.3 Missed Pick-ups .......................................................................... 43 4.2.4 Complaint Documentation ........................................................... 43 4.2.5 Resolution of Customer Complaints ............................................ 44 4.2.6 Government Liaison .................................................................... 44 4.3 Education and Public Awareness .......................................................... 44 4.3.1 General ....................................................................................... 44 4.3.2 Annual Guide to Solid Waste and Recycling ............................... 44 4.3.3 Community Events ...................................................................... 45 4.4 Waste Generation/Characterization Studies .......................................... 45 ARTICLE 5. COMPANY COMPENSATION, RATES, AND FEES .............................. 45 5.1 General .................................................................................................. 45 5.2 Compensation to Company ................................................................... 45 5.3 Future Adjustments ................................................................................ 46 5.3.1 Annual Rate Adjustment ............................................................. 46 5.3.2 NOT USED ................................................................................. 47 5.3.3 Extraordinary Adjustment ............................................................ 47 5.3.4 Notice of Rate Increase ............................................................... 48 5.3.5 Applicable Law ............................................................................ 48 5.4 Most Favored City .................................................................................. 48 5.5 Franchise Fee ........................................................................................ 49 254 5.5.2 Disputes Regarding Franchise Fee Remittances ........................ 49 5.6 City Fees ................................................................................................ 50 5.6.1 Community Services Contribution ............................................... 50 5.6.2 Agreement Administrative Costs ................................................. 50 5.6.3 AB 939 Fees ............................................................................... 50 5.6.4 Annual Impact Fee ...................................................................... 50 5.6.5 Household Hazardous Waste Contribution ................................. 50 5.6.6 Annual Rate Review Reimbursement ......................................... 51 5.6.7 Late Payment .............................................................................. 51 5.7 Grants .................................................................................................... 51 ARTICLE 6. RECORDS, REPORTS AND INFORMATION REQUIREMENTS ........... 51 6.1 General .................................................................................................. 51 6.2 Records ................................................................................................. 51 6.2.1 General ....................................................................................... 51 6.2.2 Solid Waste Service Records ...................................................... 52 6.2.3 Disposal Records ........................................................................ 52 6.2.4 Other Program Records .............................................................. 53 6.3 Reports .................................................................................................. 53 6.3.1 Report Formats and Schedule .................................................... 53 6.3.2 Monthly Reports .......................................................................... 54 6.3.3 Quarterly Reports ........................................................................ 54 6.3.4 Annual Report ............................................................................. 55 6.4 Adverse Information ............................................................................... 55 6.5 Right to Inspect Records ........................................................................ 56 6.6 Periodic Review ..................................................................................... 56 255 6.7 Performance Review.............................................................................. 56 ARTICLE 7. INDEMNIFICATION, INSURANCE AND BONDS ................................... 57 7.1 Indemnification ....................................................................................... 57 7.2 Hazardous Substances Indemnification ................................................. 59 7.3 Reduction of CERCLA and Other Liabilities ........................................... 60 7.4 Indemnification for Failure to Meet Diversion Requirements .................. 60 7.5 Insurance ............................................................................................... 60 7.6 Faithful Performance Bond .................................................................... 64 7.7 Property Damage ................................................................................... 65 7.8 Pavement Damage ................................................................................ 65 7.9 Corporate Guaranty ............................................................................... 66 ARTICLE 8. DEFAULT, REMEDIES AND LIQUIDATED DAMAGES ......................... 66 8.1 Administrative Remedies ....................................................................... 66 8.1.1 Notice of Deficiencies .................................................................. 66 8.1.2 City Council Hearing ................................................................... 68 8.1.3 City Council Determination .......................................................... 68 8.1.4 Reservation of Rights by City ...................................................... 69 8.1.5 Cumulative Rights ....................................................................... 70 8.2 Liquidated Damages .............................................................................. 70 8.3 Excuse from Performance ..................................................................... 74 8.3.1 Force Majeure ............................................................................. 74 8.3.2 Labor Unrest ............................................................................... 74 8.3.3 Procedures in Event of Excused Performance ............................ 75 8.4 Assurance of Performance .................................................................... 76 256 ARTICLE 9. OTHER AGREEMENTS OF THE PARTIES ........................................... 76 9.1 Relationship of Parties ........................................................................... 76 9.2 Compliance with Law ............................................................................. 76 9.3 Governing Law ....................................................................................... 76 9.4 Jurisdiction ............................................................................................. 76 9.5 Assignment ............................................................................................ 77 9.6 Contracting or Subcontracting ............................................................... 79 9.7 Binding on Assigns ................................................................................ 79 9.8 Transition to the Next Company ............................................................ 79 9.9 Parties in Interest ................................................................................... 79 9.10 Non-Waiver Provision ............................................................................ 79 9.11 Notice ..................................................................................................... 80 9.12 Representatives of the Parties ............................................................... 80 9.13 City Free to Negotiate with Third Parties ............................................... 81 9.14 Compliance with Municipal Code ........................................................... 81 9.15 Privacy ................................................................................................... 81 9.16 Proprietary Information .......................................................................... 81 9.17 Attorneys’ Fees ...................................................................................... 82 ARTICLE 10. MISCELLANEOUS PROVISIONS ........................................................ 82 10.1 Entire Agreement ................................................................................... 82 10.2 Article and Section Headings ................................................................. 82 10.3 References to Laws and Regulations .................................................... 82 10.4 Interpretation .......................................................................................... 82 10.5 Amendments .......................................................................................... 82 10.6 Severability ............................................................................................ 83 257 10.7 Exhibits .................................................................................................. 83 10.8 Authority and Effective Date .................................................................. 83 Exhibits Exhibit 1 – Initial Maximum Rates Exhibit 2 – City Facilities Exhibit 3 – Street Sweeping Specifications Exhibit 4 – Performance Bond Exhibit 5 – Corporate Guaranty Exhibit 6 – Depiction of 125 Acre and 131 Acre Sites 258 FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT FOR PROVIDING RESIDENTIAL AND COMMERCIAL SOLID WASTE SERVICES (“Agreement”) is effective as of the ____ day of _______, 2018 (“Effective Date”), and is entered into by and between the City of Moorpark, a California municipal corporation (“City”) and USA Waste of California, Inc., a Delaware corporation (“Company”) (individually, a “Party” or collectively, the “Parties”). RECITALS: A. The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (the “Act”, California Public Resources Code Sections 40000 et seq.) has declared that it is in the public interest to require local agencies to make adequate provision for solid waste handling within their jurisdictions to meet the goals and objectives of the Act. B. In accordance with the Act, City is required to implement its Source Reduction and Recycling Element (“SRRE”) in order to maintain the diversion of 50% of solid waste collected in City from landfill disposal. C. In accordance with California Public Resources Code Sections 40059(a)(2) and 49300 et seq., City has determined that the public health, safety, and welfare require that an exclusive franchise be awarded to a qualified solid waste enterprise for the collection, transportation, recycling, processing, and disposal of solid waste, and for other related services, to meet the goals and objectives of the Act. D. On September 18, 2002, the City Council granted two exclusive Franchise Agreements with GI Industries and Company (the “Company Agreements”) and two exclusive Franchise Agreements with Charles Anderson and SEA/SUE Inc., a general partnership, doing business as Moorpark Rubbish Disposal (the “MRD Agreements”), for the collection, transportation, recycling, and disposal of residential solid waste and commercial solid waste in designated areas within the City limits. E. On December 6, 2017, City consented to the transfer of the MRD Agreements to GI Industries, subject to certain conditions. F. On December 29, 2017, the term of the Company Agreements was extended to March 31, 2018, and the term of the MRD Agreements was extended to December 31, 2027. G. On March 29, 2018, the term of the Company Agreements was extended to June 30, 2018. H. This Agreement is intended to replace and supersede the Company Agreements and the MRD Agreements in their entirety, in accordance with the terms and conditions set forth herein. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 259 ARTICLE 1. DEFINITIONS 1.1 Definitions. Whenever any term used in this Agreement has been defined by the provisions of Title 8, Chapter 8.36 of the Moorpark Municipal Code, or by Division 30, Part 1, Chapter 2 of the California Public Resources Code, the definitions in the Municipal Code or the Public Resources Code will apply unless the term is otherwise defined in this Agreement, in which case, this Agreement will control. The following capitalized words and terms have the following meanings: 1.1.1 Account “Account” means premises located within the City receiving services pursuant to this Agreement, or the person arranging for services pursuant to this Agreement, as the case may be. The word “Account” is used interchangeably with the word “Customer” in this Agreement. 1.1.2 Act “Act” means the California Integrated Waste Management Act of 1989 (California Public Resources Code Sections 40000 et seq.), commonly referred to as “AB 939”, and implementing regulations of the California Department of Resources Recycling and Recovery (Title 14 and Title 27 of the California Code of Regulations). 1.1.3 Activation Fee “Activation Fee” means a fee charged by Company to compensate it for expenses incurred where initiating service or re-establishing service following a suspension of service due to non-payment. 1.1.4 Affiliate “Affiliate” means all businesses (including corporations, limited and general partnerships and sole proprietorships) that are directly or indirectly related to Company by virtue of direct or indirect ownership interest or common management; all such businesses shall be deemed to be “Affiliated with” Company and included within the term “Affiliates” as used herein. An Affiliate shall include a business in which Company owns a direct or indirect ownership interest, a business that has a direct or indirect ownership interest in Company and/or a business that is also owned, controlled or managed by any business or individual that has a direct or indirect ownership interest in Company. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) “ten percent (10%)” shall be substituted for “fifty percent (50%)” in Section 318(a)(2)(C) 260 and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. 1.1.5 Applicable Law “Applicable Law” means all laws, regulations, rules, orders, judgments, decrees, permits, approvals, or other requirement of any federal, state, county, city, and local governmental agency having jurisdiction over the collection and disposition of Solid Waste, including Recyclable Materials, Organic Waste and Construction and Demolition Waste, that are in force on the Effective Date and as they may be enacted, issued, or amended during the term of this Agreement. 1.1.6 Bin “Bin” means a metal or rigid plastic container with a capacity of one to six cubic yards, having a hinged lid and wheels, which is serviced by a front-end loading truck. Lids are to remain closed at all times. 1.1.7 Bin Service “Bin Service” means collection services provided to Accounts using bins provided by Company. Bin service may be provided on a permanent or temporary basis. 1.1.8 Bulky Waste “Bulky Waste” means discarded furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances, and other similar items, commonly known as “white goods”); wood waste, tree trunks, and large branches if no longer than two feet in diameter and four feet in length; scrap wood, rocks, sod, and earth, in the aggregate not exceeding one cubic yard per collection; clothing; tires; and collapsed cardboard boxes that are bound together and reasonably able to be handled by one person in a single trip. Bulky Waste does not include such items as car bodies or Construction and Demolition Waste, or any other items that cannot be handled by one person. 1.1.9 Business Days “Business Days” means days Moorpark City Hall is open for business. 1.1.10 CalRecycle “CalRecycle” means the California Department of Resources, Recycling and Recovery, or its successor agency. 261 1.1.11 Cart “Cart” means a plastic container with handles and a capacity no less than 35 gallons and no greater than 95 gallons, having a hinged lid and wheels, that is serviced by an automated or semi-automated side-loading truck. Cart size is plus/minus ten percent depending on the manufacturer. 1.1.12 Cart Service “Cart Service” means collection services provided to Accounts using carts provided by Company. 1.1.13 City “City” means the City of Moorpark, a municipal corporation, and all the territory lying within the municipal boundaries of City as presently existing or as these boundaries may be modified during the term of this Agreement. 1.1.14 City Facilities “City Facilities” means all real property and improvements owned or operated by City. 1.1.15 City Manager “City Manager” means the City Manager of the City of Moorpark or his/her designee. 1.1.16 Collection “Collection” means the act of collecting Solid Waste, including Recyclable Materials, Organic Waste, Bulky Waste, Construction and Demolition W aste, and other materials at the place of generation in the City pursuant to this Agreement. 1.1.17 Commercial Premises “Commercial Premises” means property upon which a business activity is conducted, including but not limited to retail sales, services, manufacturing, assembling, storage, or wholesale operations, but excluding businesses conducted upon Residential Premises that are permitted under applicable zoning regulations and that do not constitute the primary use of the property. Commercial Premises also include hotels, senior citizen housing complexes, convalescent centers, and any premises used for residential occupancy having more than one Dwelling Unit that receives Bin Service. Commercial Premises may receive Bin Service or Roll-off Service. Subject to mutual written approval by City and Company, Commercial Premises receiving Cart Service as of the Effective Date may continue to receive Cart Service if there is insufficient space for Bin Service 262 and a sufficiently small amount of Solid Waste generated by the Commercial Premises. 1.1.18 Company “Company” means USA Waste of California, Inc. a Delaware corporation, and its officers, directors, employees, agents, subsidiaries, and subcontractors. Company is a wholly-owned subsidiary of Waste Management Holdings, Inc., a Delaware corporation. 1.1.19 Complaint “Complaint” means a grievance, criticism, or objection in the form of written letter, email, or telephone call either to City or Company regarding Company’s performance of its duties under the terms of this Agreement. Complaints concern missed pick-ups, property damage caused by Company, tardy service, unresponsiveness to requests, billing problems, and similar issues. Complaints exclude normal or standard service requests (e.g., exchanging a Cart or Bin), and criticisms directed at rates or City’s solid waste ordinance and its provisions. 1.1.20 Composting and Compost “Composting” and “Compost” shall have the meanings ascribed in the Act. 1.1.21 Construction and Demolition Waste “Construction and Demolition Waste” means used or discarded construction materials removed from premises during the construction or demolition of a structure. This includes but is not limited to building waste materials, asphalt, concrete, drywall, metals, roofing materials, soils, wood, packaging, and rubble resulting from construction, remodeling, repair, and demolition operations on driveways, residential houses, Multi-Family residential Premises, and Commercial Premises. 1.1.22 Contamination Fee “Contamination Fee” means an amount charged by Company to Accounts to recover costs for separating Solid Waste or Green Waste/Organic Waste placed in Recyclable Materials containers, or for arranging special, unscheduled collections due to placement of Solid Waste or Green Waste/Organic Waste in Recyclable Materials containers. 1.1.23 Customer “Customer” means premises located within the City receiving services pursuant to this Agreement, or the person arranging for services pursuant to this Agreement, as the case may be. The word “Customer” is used interchangeably with the word “Account” in this Agreement. 263 1.1.24 Designated Disposal Site “Designated Disposal Site” means the Disposal Site designated by Company for the disposal of Solid Waste collected pursuant to this Agreement, as more particularly described in subsection 3.11.1. 1.1.25 Designated Organic Waste Facility “Designated Organic Waste Facility” means the facility designated by Company for the processing of Organic Waste collected pursuant to this Agreement, as more particularly described in subsection 3.11.3. 1.1.26 Designated Recycling Facility Designated Recycling Facility” means the facility designated by Company for the processing of Recyclable Materials collected pursuant to this Agreement, as more particularly described in subsection 3.11.2. 1.1.27 Disposal Site “Disposal Site” means any Solid Waste handling facility or facilities used for the final disposal of Solid Waste collected by Company. 1.1.28 Dwelling Unit “Dwelling Unit” means any Single-Family Premises or any individual living unit in a Multi-Family Premises intended for, or capable of being utilized for, residential living. 1.1.29 Effective Date “Effective Date” means the date set forth in the first paragraph of this Agreement. 1.1.30 Environmental Laws “Environmental Laws” means all federal and state statutes, and county and City ordinances concerning public health, safety and the environment including, by way of example and not limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC § 9601 et seq.; the Resource Conservation and Recovery Act, 42 USC § 6902 et seq.; the Federal Clean Water Act, 33 USC § 1251 et seq.; the Toxic Substances Control Act, 15 USC § 1601 et seq.; the Occupational Safety and Health Act, 29 USC § 651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code Section 25100 et seq.; the California Toxic Substances Control Act, California Health and Safety Code Section 25300 et seq.; the Porter-Cologne Water Quality Control Act, California Water Code Section 13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code Section 25249.5 et seq.; and all rules and regulations promulgated thereunder. 264 1.1.31 E-Waste “E-Waste” means electronic products as defined in 22 CCR § 66273.9, including but not limited to computers, televisions, VCRs, stereos, copiers, fax machines, and other “covered electronic devices” as defined in Public Resources Code Section 42463. 1.1.32 Food Waste “Food Waste” means compostable organic materials, excluding Green Waste, including but not limited to: (i) all food (including fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese and eggshells); (ii) compostable food-soiled paper (including napkins, paper towels, paper plates); (iii) tea bags, coffee grounds, and coffee filters; and (iv) animal or vegetable waste that is generated during or results from the storage, preparation, cooking, or handling of food stuffs. Food Waste is a subset of Organic Waste. 1.1.33 Franchise Fee “Franchise Fee” shall have the meaning ascribed in Section 5.5. 1.1.34 Free Landfill Days “Free Landfill Days” shall have the meaning ascribed in Section 3.4.6. 1.1.35 Green Waste “Green Waste” means organic materials generated from Residential and Commercial Premises associated with landscaping and no longer useful or wanted. Items include, but are not limited to leaves, grass, weeds, and wood materials from trees and shrubs, and similar materials that fit within a Cart and are generated at any premises. Yucca leaves, palm fronds, tree stumps and tree roots are not considered Green Waste. Green Waste is a subset of Organic Waste. 1.1.36 Gross Receipts “Gross Receipts” means all monetary amounts actually collected or received by Company and its subsidiaries, parent companies, or other affiliates for the collection of Solid Waste pursuant to this Agreement. Gross Receipts, for purposes of this Agreement, do not include material sales revenues derived from the Collection of Recyclable Materials or Organic Waste, other receipts from state and local government accounts including CalRecycle beverage container recycling payments, or Roll-off disposal or processing charges. 1.1.37 Hazardous Substance “Hazardous Substance” means any of the following: (a) any substances defined, regulated or listed (directly or by reference) as “hazardous substances”, 265 “hazardous materials”, “hazardous wastes”, “toxic waste”, “pollutant,” “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 § 1802, et seq.; (iii) the Federal Resource Conservation and Recovery Act, 42 USC § 6901 et seq.; (iv) the Clean Water Act, 33 USC § 1251 et seq.; (v) California Health and Safety Code Sections 25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC § 7901 et seq.; or (vii) California Water Code Section 13050; (viii) any amendments, rules or regulations promulgated under those specified statutes or acts that are currently existing or may later be enacted; and (ix) any other 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 later enacted, including, without limitation, friable asbestos, polychlorinated biphenyls (“PCBs”), petroleum, natural gas, synthetic fuel products, and by-products. 1.1.38 Hazardous Waste “Hazardous Waste” means all substances that are defined as hazardous waste, acutely hazardous waste, extremely hazardous waste or medical waste by the State of California in Health and Safety Code Sections 25110.02, 25115, 25117, and 117690 and Public Resources Code Section 40141, or in any future amendments to or recodifications of these statutes, or identified and listed as hazardous waste by the U.S. 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. 1.1.39 Holiday “Holiday” shall mean: New Year’s Day Memorial Day Independence Day Labor Day Thanksgiving Day Christmas Day “Holiday” shall also mean any other day designated as such by City and Company. 1.1.40 Household Hazardous Waste “Household Hazardous Waste” means Hazardous Waste generated at a Single-Family or Multi-Family Residential Premises. 266 1.1.41 Late Fee “Late Fee” means an amount charged by Company to reimburse it for administrative costs arising from payment delinquency, including the cost of notices and adjustments to its accounting records, and may include a fixed fee, interest on past due amounts, or Non-Sufficient Fund (“NSF”) fees. 1.1.42 Material Recovery Facility (“MRF”) “Material Recovery Facility” or “MRF” means a facility licensed or permitted in accordance with the Act which separates Recyclable Materials and processes them for sale to end users. 1.1.43 Multi-Family Premises “Multi-Family Premises” means a premises having five or more Dwelling Units. Multi-Family Premises may receive Bin Service or Cart Service, and temporary Bin or Roll-off Service, at the discretion of the Customer. 1.1.44 Municipal Code “Municipal Code” means the Municipal Code of the City of Moorpark. 1.1.45 Operative Date “Operative Date” has the meaning ascribed in Section 2.3. 1.1.46 Organic Waste “Organic Waste” or “Organics” has the meaning defined in Public Resources Code Section 42649.8(c), generally consisting of Food Waste, Green Waste, landscape and pruning waste, nonhazardous wood waste, and food-soiled paper waste that is mixed in with Food Waste. 1.1.47 Overage Fee “Overage Fee” means a fee charged by Company to Accounts receiving Bin Service or Roll-off Service to compensate it for its expenses in documenting and cleaning up litter and debris arising from overfilling of containers. 1.1.48 Private Street “Private Street” means property owned and maintained by a homeowners or property owners association, individual, or multiple property owners which is used for vehicular travel by those having express or implied permission or with authority to do so. 267 1.1.49 Processing “Processing” shall mean the reduction, separation, recovery, conversion, or Recycling of Solid Waste. 1.1.50 Public Resources Code “Public Resources Code” shall mean the California Public Resources Code. 1.1.51 Rate Schedule “Rate Schedule” means the maximum rates authorized by this Agreement. The initial Rate Schedule is set forth in Exhibit 1. The Rate Schedule may be adjusted pursuant to Section 5.3. 1.1.52 Recyclable Materials “Recyclable Materials” means the following materials generated in or emanating from Residential or Commercial Premises and no longer useful or wanted thereon, and that may be returned to the economic mainstream through available processes and markets: glass jars and bottles; steel, bi-metal, aluminum, and tin cans; empty aerosol containers; PET plastic; HDPE plastic; plastics types 3 – 7; shrink wrap, plastic toys and tools, and other plastic materials (if readily identifiable as being recyclable and delivered to a drop-off center, and excluding plastic bags); juice boxes and milk cartons (aseptic packaging, Tetra Pak©, and waxed cardboard); scrap metal, coat hangers, and metal foil; newspaper; mixed paper (e.g., ledger, computer, junk mail, magazines, paperback books, cereal boxes, envelopes, paper shopping bags, and non-metallic wrapping paper); and telephone books, and such additional materials as the City Council may designate from time to time. City and Company agree to meet from time to time as needed to discuss additions or deletions from the list of Recyclable Materials. Company may request removal of Recyclable Materials due to market limitations; any such action requires the prior written approval of the City Manager. 1.1.53 Recycling “Recycling” means any process by which materials that would otherwise become Solid W aste are collected (whether source-separated, co-mingled, or as mixed waste), separated, or processed and returned to the economic mainstream in the form of raw materials or products or materials that are salvaged or recovered for reuse. 1.1.54 Refuse “Refuse” means Solid Waste that is not Recyclable Materials, Organic Waste, Construction and Demolition Waste, Bulky Waste, or industrial waste. 268 1.1.55 Residential Account or Customer “Residential Account” or “Residential Customer” means an Account for collection services provided to any Residential Premises. 1.1.56 Residential Premises “Residential Premises” means property which is used for residential purposes within the City, including Single-Family Premises; any premises used for residential occupancy having more than one Dwelling Unit that receives Cart Service, including apartment houses, condominiums, mixed condominiums and rental housing, mobile home parks, and trailer parks; and any premises with businesses conducted upon Residential Premises that are permitted under applicable zoning regulations that receives Cart Service. 1.1.57 Roll-off Box “Roll-off Box” means an open-top metal container or closed compactor box with a capacity of ten to 40 cubic yards that may be provided by either the Account or Company, which is serviced by a roll-off truck. 1.1.58 Roll-off Service “Roll-off Service” means Collection, transportation, Recycling, processing and disposal services that are provided using a Roll-off Box. Roll-off Service may be provided on a permanent or temporary basis. 1.1.59 Single-Family Premises “Single-Family Premises” means a premises having between one and four Dwelling Units that receives Cart Service. Single-Family Premises also include premises with one Dwelling Unit on larger properties that receive Bin Service. 1.1.60 Solid Waste “Solid Waste” has the meaning defined in Public Resources Code Section 40191, including all putrescible and nonputrescible solid and semi-solid waste, generated in or upon, related to the occupancy or, remaining in or emanating from Residential Premises or Commercial Premises, including Recyclable Materials, Green Waste, Organic Waste, Construction and Demolition Waste, garbage, trash, refuse, paper, rubbish, ashes, industrial waste, discarded home and industrial appliances, manure, vegetable or animal solid wastes, and other solid and semi-solid waste, excluding liquid wastes, abandoned vehicles, Hazardous Waste, and medical waste. 269 1.1.61 Solid Waste Handling Services “Solid Waste Handling Services” means the Collection, transportation, storage, transfer, or processing of Solid Waste. 1.1.62 Special Waste “Special Waste” means Solid W aste that is a “designated waste” under applicable law, is required to be accompanied by a written manifest or shipping document describing the waste under Applicable Law, or requires special handling at any processing facility or Disposal Site. 1.1.63 Temporary Service “Temporary Service” means Bin Service or Roll-Off Service provided to premises on a temporary, as-needed basis. 1.1.64 Universal Waste “Universal Waste” means waste materials that are conditionally exempt from classification as Hazardous W aste pursuant to Title 22 of the California Code of Regulations (22 CCR), Section 66261.9, including but not limited to batteries, computers and peripherals, printers, CRT monitors, televisions, electronic equipment, and cathode ray tubes. ARTICLE 2. GRANT AND ACCEPTANCE OF FRANCHISE 2.1 Grant and Acceptance of Franchise; Termination of Prior Agreements A. Subject to the terms and conditions of this Agreement, City grants to Company an exclusive franchise to collect, transfer, transport, recycle, process, and dispose of all Solid Waste generated at all Residential Premises and Commercial Premises in the City, on a permanent or temporary basis. B. Company accepts the franchise on the terms and conditions set forth in this Agreement. C. The Parties agree that, upon the Operative Date, this Agreement supersedes all prior agreements related to the subject matter hereof, including but not limited to the Company Agreements and the MRD Agreements, and that all such prior agreements are of no further force or effect, except for indemnity obligations arising under the prior agreements before the Operative Date. 270 2.2 Exclusive Nature of Franchise A. During the term of this Agreement, except as otherwise provided in Section 2.7, or as may otherwise be provided by federal or state law, the rights granted to Company under this Agreement will be exclusive to Company. B. City will protect Company’s exclusive rights by appropriate ordinances and by reasonable enforcement of those ordinances. If, at the request of Company, City takes administrative, law enforcement, or other legal action against any person who infringes on Company’s exclusive rights, Company shall reimburse City for its administrative, law enforcement, or legal costs related to any such action. City staff costs shall be reimbursed at rates contained in City’s staff billing rates adopted by the City Council in effect at the time City’s costs were incurred. Nothing herein precludes Company from taking such legal action against third parties as it deems appropriate to protect its rights under this Agreement. 2.3 Operative Date The operative date of this Agreement is July 1, 2018. The Operative Date is the date upon which Company shall commence to provide Solid Waste Handling Services that are authorized by this Agreement. 2.4 Term of Agreement The term of this Agreement commences on the Effective Date and expires on June 30, 2030, unless earlier terminated pursuant to Article 8 or otherwise. 2.5 Conditions to Effectiveness of Agreement The effectiveness of this Agreement and the performance of City’s obligations, are subject to the satisfaction of all conditions set out below, any of which may be waived by City in whole or in part: A. Accuracy of Representations. Representations and warranties made by Company in this Agreement are true and correct as of the Operative Date. B. Furnishing of Insurance, Bonds, and Guaranty. On or before the Operative Date, Company has furnished evidence satisfactory to the City Manager of the insurance and bonds required by Article 7, and the guaranty required by Section 7.9, together with evidence satisfactory to the City Attorney that the person(s) executing the bonds and guaranty are authorized to do so and to bind the principal, surety, and guarantor, as the case may be. 271 C. Effectiveness of the City Council Action. City’s resolution approving this Agreement has become effective under California law prior to the Operative Date of this Agreement. D. Real Property Transaction - 125 Acres. (i) Waste Management of California, Inc. and City have executed the Purchase and Sale Agreement of substantially even date herewith, providing for the conveyance to City of approximately 125 acres located in the City and held by Waste Management of California, Inc., and (ii) [California Resources Petroleum Corporation, Current lessee under Oil, Gas and Mineral Lease] and City have executed the Surface Waiver Agreement substantially in the form attached to the Purchase and Sale Agreement as Exhibit D. The location of the 125 acre site is generally depicted on Exhibit 6. E. Real Property Transaction - 131 Acres. (i) Waste Management of California, Inc. and City have executed a Purchase and Sale Agreement providing for the conveyance to City of approximately 131 acres located in the City and held by Waste Management of California, Inc., and (ii) [California Resources Petroleum Corporation, Current lessee under Oil, Gas and Mineral Lease] and City have executed the Surface Waiver Agreement substantially in the form attached to the Purchase and Sale Agreement as Exhibit D. The 131 acre site is located adjacent to the 125 acre site referenced in Section 2.5.D, and is generally depicted on Exhibit 6. The Purchase and Sale Agreement for the 131 acre site shall be substantially similar to the Purchase and Sale Agreement for the 125 acre site, except that it shall provide for a 120 day escrow period. The purchase price shall be consistent with Section 4 of that certain Memorandum of Understanding between City and GI Industries dated December 6, 2017, including Section 4.b (regarding the one acre portion to be conveyed at no cost to City). F. Local Street Access Agreement. The extension of the term of the Local Street Access Agreement between City and Waste Management of California, Inc. to not earlier than June 30, 2030. 2.6 Delegation of Authority The administration of this Agreement by City will be under the supervision and direction of the City Manager. Any and all actions specified in this Agreement, unless otherwise stated, will be taken by the City Manager, or other persons duly authorized to do so by the City Manager. 2.7 Limitations on Scope of Franchise A. The franchise granted to Company is exclusive, except for the categories of Solid Waste listed in this Section 2.7. The granting of this franchise does not preclude the categories of Solid Waste listed below from being 272 delivered to, collected, and transported by others, provided that no person is excused from obtaining from City any authorization that is required by law: 1. Source-separated Recyclable Materials that a Customer donates or sells to other persons. 2. Solid Waste, including Recyclable Materials, Green Waste, Construction and Demolition Waste, and Organics Waste, which is removed from any premises by the Customer, and which is transported personally by the Customer (or by the Customer’s full-time employees) to a processing or disposal facility. 3. Bulky Waste removed from a Single-Family Premises by a property cleanup or maintenance company as an incidental part of the total cleanup, delivery, or maintenance service offered by such company rather than as a hauling service. 4. Green Waste removed from premises by a gardening, landscaping, or tree trimming company using its own equipment and employees as an incidental part of a total service offered by such company, as opposed to a hauling service. 5. Green Waste generated by an agricultural use on a lot where such use is permitted pursuant to applicable provisions of the Municipal Code, and where such Green Waste is transported personally by the Customer (or by the Customer’s full-time employees) to a processing facility. 6. Construction and Demolition Waste that is incidentally removed by a duly-licensed construction or demolition company, or as part of a total service offered by such licensed company, and where the licensed company uses its own equipment and employees. 7. Animal waste and remains from any slaughterhouse or butcher shop for use as tallow. 8. By-products of sewage treatment, including sludge, sludge ash, grit and screenings. 9. Hazardous Waste, medical waste, and radioactive waste, regardless of its source. 10. The casual or emergency collection, removal, disposal, or diversion of Solid Waste by City through its officers or employees in the normal course of their employment. 11. Universal Waste. 273 B. Company acknowledges that City may permit other persons besides Company to collect the types of Solid Waste listed in this Section 2.7, including Recyclable Materials, without obtaining any approval of Company. C. The grant to Company of this exclusive franchise will be interpreted in a manner consistent with state and federal laws. The scope of this exclusive franchise will be limited by current and developing state and federal laws with regard to Solid Waste handling, control of Recyclable Materials, Solid Waste flow control, and related matters. If future interpretations of current law, or the enactment of new laws or local ordinances, limit the ability of City to lawfully provide for the scope of franchise services specifically set forth, Company agrees that the scope of the franchise will be limited to those services that may be lawfully provided; and City will not be responsible for any lost profits that may be claimed by Company. In that event, it is the responsibility of Company to minimize the financial impact to whatever extent is reasonably feasible. 2.8 City’s Right to Direct Changes 2.8.1 General City may direct Company to perform additional services (including new diversion programs, etc.) or to modify the manner in which it performs existing services or bills for services. Pilot programs and innovative services that may entail new collection methods, different kinds of services or new requirements for Customers, are included among the kinds of changes that City may direct. Company will be entitled to an adjustment in its compensation for providing those additional or modified services, if Company demonstrates that its cost of service would increase. 2.8.2 New Diversion Programs In conjunction with the requirements of subsection 2.8.1, Company must present, within 30 days of a written request from City, a proposal to provide additional or expanded diversion services. The proposal must contain a complete description of the following: • Collection methodology to be employed (equipment, staff resources, etc.). • Equipment to be used (vehicle number, types, capacity, age, etc.). • Labor requirements (number of employees by classification). • Type of containers to be used. • Program publicity, education, and marketing. 274 • Three-year projection of the financial results of the program’s operations in an operating statement format, including documentation of the key assumptions underlying the projections and the support for those assumptions. 2.8.3 City’s Right to Acquire Services Company acknowledges that City may permit other persons to provide additional Solid Waste services not otherwise provided for in this Agreement. If Company and City cannot agree on terms and conditions for additional or expanded diversion services within 90 days from the date when City first requests a proposal from Company to perform those services pursuant to subsection 2.8.2, City may authorize persons other than Company to provide those services. If City exercises its right to authorize third parties to provide those services, and if that decision reduces or eliminates Company’s collection services as contemplated under Article 3 of this Agreement, Company will reduce its billings proportionately. 2.9 Ownership of Solid Waste Except as otherwise provided in state law, when Solid Waste is placed at the designated Collection location, ownership and the right to possession will transfer directly from the Customer to Company by operation of this Agreement. Subject to Company’s obligation to assist City in meeting the source reduction and Recycling goals that apply to City, and City’s rights under Section 3.8 and subsection 3.11.4, Company has the right to retain, recycle, process, dispose of, and otherwise use that Solid Waste, or any part thereof, in any lawful fashion or for any lawful purpose. Subject to the provisions of this Agreement, Company has the right to retain any benefit resulting from its right to retain, recycle, process, dispose of, or reuse the Solid Waste that it collects. City may obtain ownership or possession of Solid Waste placed for Collection upon written notice of its intent to do so; however, nothing in this Agreement may be construed as giving rise to any inference that City has such ownership or possession unless written notice has been given to Company. 2.10 Company Status Company represents and warrants that it is duly organized, validly existing, and in good standing under the laws of Delaware, that it is qualified to transact business in the State of California and has all necessary licenses, permits, and certifications to provide the services required by this Agreement. 2.11 Company Authorization Company represents and warrants that: - Company is authorized to enter into and perform its obligations under this Agreement; 275 - The Board of Directors of Company has taken all actions required by law, the articles of incorporation, the bylaws, or otherwise, to authorize the execution of this Agreement; and - The persons signing this Agreement on behalf of Company have authority to do so. 2.12 Annexations This Agreement will extend to any territory annexed to City during its term, except to the extent that Collection by Company within that annexed territory would violate the provisions of Public Resources Code Section 49520. In that event, this Agreement will become effective as to that area at the earliest possible date authorized by law; and City will cooperate with Company to fulfill any requirement necessary for Company to serve the annexed area consistent with this Section. ARTICLE 3. DIRECT SERVICES 3.1 Solid Waste Collection Services A. The work to be performed by Company includes, but is not limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and other items necessary to perform the services required. The designation of, and specification of requirements for, particular items of labor or equipment does not relieve Company of the duty to furnish all others, as may be required, whether or not identified elsewhere in this Agreement. B. The work to be performed by Company will be performed in a thorough and professional manner so that Customers within the City are provided with reliable, courteous, and high-quality Solid Waste Collection services at all times during the term of this Agreement. 3.1.1 Refuse Cart Service A. Company must collect Refuse delivered for Collection at the curbside at Residential Premises receiving Cart Service not less than once each calendar week. Not more than seven days shall elapse between Collections. Company shall provide each automated Refuse Cart customer one 64-gallon Refuse Cart, except that Customers with 32-gallon Cart Service, or Customers that elect to forego Green Waste Collection, will receive a 32-gallon Refuse Cart. Upon request, Company shall substitute a 96-gallon Refuse Cart for the 64-gallon Cart, or a 64-gallon Refuse Cart for the 32-gallon Cart, at a rate that does not exceed the maximum rate set forth in Exhibit 1. Additional Refuse Carts will be provided at a rate that does not exceed the maximum rate set forth in Exhibit 1. 276 B. Collection of Refuse Carts will take place at the curbside. The designated collection location of Carts, if disputed by the Customer or Company, will be determined by City. Additionally, if in City’s opinion the existing collection location is inappropriate, City may require the Customer or Company to relocate the collection location. C. Residential Customers located on High Street, between Moorpark Avenue and Spring Road, may obtain Bin Service for Refuse in lieu of Cart Service, in accordance with subsection 3.5.6. Residential Customers selecting this option would pay the regular full service residential rate for Cart service. 3.1.2 Refuse Bin Service A. Company will provide temporary Bin Service to Residential Premises, and permanent or temporary Bin Service to Commercial Premises (including Multi-Family Premises), requesting the service, at a rate not to exceed the maximum rates set forth in Exhibit 1. Company must collect and remove all Refuse that is placed in Bins from Multi-Family Premises receiving permanent Bin Service at least once each calendar week, or more frequently upon Customer request. Special consideration will be given when determining the pick-up area to ensure that the flow of traffic is not impeded. Company shall deliver and collect temporary Bins at the direction of the Customer, and shall notify City prior to delivering temporary Bins placed within the public right-of-way. B. Company shall provide other services desired by Accounts receiving Bin Service, including walk-in/push-out service where the Bin must be moved manually to the collection point, scout service, or use of Bins with castors, hasps, or locks, at a rate not to exceed the maximum rate set forth in Exhibit 1. C. The designated collection location of Bins, if disputed by the Customer or Company, will be determined by City. Additionally, if in City’s opinion the existing collection location is inappropriate, City may require the Customer or Company to relocate the collection location. 3.1.3 Refuse Roll-off Service A. Company shall provide temporary Roll-off Service to Residential Premises and permanent or temporary Roll-off Service to Commercial Premises (including Multi-Family Premises) requesting the service, at a rate not to exceed the maximum rate set forth in Exhibit 1. Company shall collect and remove all Solid Waste that is placed in Roll-off Boxes from every Customer receiving permanent Roll-off Service at least once every week or more frequently if required to handle the waste stream of the Customer. Company shall deliver and collect temporary Roll-off Boxes at the direction 277 of the Customer and shall notify City prior to delivering temporary Roll-off Boxes placed within the public right-of-way. B. Company shall provide extra services desired by Customers receiving Roll-off Service, including extra pick-ups, relocation of containers, trip charges where the Account refuses service, Account-owned Roll-off Box hauling and disposal services, and use of compactors and vertical compactors, at a rate not to exceed the maximum rate set forth in Exhibit 1. C. Roll-off Boxes may be placed in the public right-of-way in front of Customer’s premises but shall not block view of any traffic or regulatory signs. A Roll-off Box shall not be placed in the public right-of-way for more than 13 consecutive days. An Encroachment Permit from City shall not be required for a Roll-off Box, provided Company maintains all insurance coverages provided for in Section 7.5. 3.2 Recyclable Materials Collection Services 3.2.1 Recyclable Materials Collection – Residential Solid Waste Customers A. Company must provide weekly automated Recyclable Materials collection to all Residential Premises receiving Refuse Cart Service on the same day as Refuse collection. Materials to be collected are as defined herein. Company shall provide each automated Refuse Cart Customer one 64-gallon Recyclable Materials Cart. Upon request, Company shall substitute a 96-gallon Recyclable Materials Cart or a 32-gallon Recyclable Materials Cart at a rate that does not exceed the maximum rate set forth in Exhibit 1. Additional Recyclable Materials Carts will be provided at a rate that does not exceed the maximum rate set forth in Exhibit 1. B. Collection of Recyclable Material Carts will take place at the curbside. The designated collection location of Carts, if disputed by the Customer or Company, will be determined by City. Additionally, if in City’s opinion the existing collection location is inappropriate, City may require the Customer or Company to relocate the collection location. C. Residential Customers located on High Street, between Moorpark Avenue and Spring Road, may obtain Bin Service for Recyclable Materials in lieu of Cart Service, in accordance with subsection 3.5.6. Residential Customers selecting this option would pay the regular full service residential rate for Cart Service. 3.2.2 Recyclable Materials Collection – Commercial Customers A. Company shall make available Collection of Recyclable Materials to those Commercial Premises (including Multi-Family Premises) that subscribe to the service. Recyclable Materials Collection will be made using Bins. Company shall collect and remove all Recyclable Materials from every 278 Customer at least once every week or more frequently if required to handle the Recyclable Materials generated by the Customer. B. In accordance with Public Resources Code Section 42649.2, certain Multi-Family Premises and Commercial Premises are required to arrange for the Recycling of Recyclable Materials, through, among other means, Collection by Company. Company shall make diligent good faith efforts to maximize participation in Recyclable Materials Collection at these premises in accordance with subsection 3.6.2. C. The designated collection location of containers, if disputed by the customer or Company, will be determined by City. Additionally, if in City’s opinion the existing collection location is inappropriate, City may require the Customer or Company to relocate the collection location. 3.2.3 Construction and Demolition Waste Recycling Company shall make reasonable efforts to prevent Construction and Demolition Waste that is suitable for Recycling from being taken to a landfill by transporting it to an alternate facility where it will be processed for reuse. Such efforts shall include, but shall not be limited to, contacting and educating building contractors about available Recycling services. 3.2.4 Contaminated Recycling Containers Company and City anticipate that Customers will participate in Company’s Recycling programs in a manner such that the total level of contamination in Recyclable Materials containers will not exceed 13.5%. As used herein, “contamination” refers to materials placed in a Recyclable Materials container other than those Recyclable Materials identified in subsection 1.1.53. City and Company agree to utilize the following procedures to assist in achieving the above contamination goal: A. If Company documents that a particular premises has a Recyclable Materials container with excessive contamination, Company shall service the Recyclable Materials container, making whatever accommodations are necessary, such as collecting the Recyclable Materials container as Refuse or removing the contamination prior to collection, and may charge an extra pick-up fee in an amount that does not exceed the maximum rate set forth in Exhibit 1. Company will tag the Recyclable Materials container with a notice that includes: 1. The fact the Recyclable Materials container required special handling, and the contents could not be recycled due to the presence of inappropriate material in the Recyclable Materials container; 2. A description of the Recyclable Materials that are appropriate for collection in the Recyclable Materials container; 279 3. An explanation that a subsequent incident of excessive contamination may result in non-collection, the imposition of a Contamination Fee, and, where warranted, requiring additional or larger-sized Refuse containers, or additional collections of existing containers, at an additional cost to the premises; and 4. A phone number to contact Company to obtain additional information and/or receive responses to questions the Customer may have. B. In the event the Customer in question continues to place Recyclable Materials containers with excessive contamination out for collection, Company may collect the Recyclable Materials container in the same manner as a Refuse container or remove the contamination and charge the premises an extra pick-up fee for that collection, in an amount that does not exceed the maximum rate set forth in Exhibit 1. Where there have been three or more instances of excessive contamination by a premises in any 12-month period, with the prior written approval of the City Manager, Company may, as appropriate: 1) deliver additional or larger Refuse containers to the premises or require additional weekly collections and charge the premises for such increased or additional services at rates that do not exceed the maximum rates set forth in Exhibit 1 install locking Bins at the premises for a charge that does not exceed the maximum rate set forth in Exhibit 1 charge a Contamination Fee in an amount that does not exceed the maximum rate set forth in Exhibit 1. 3.2.5 Marketing and Sale of Recyclable Materials Company is responsible for the marketing and sale of all Recyclable Materials collected under this Agreement. 3.3 Organic Waste Collection Services 3.3.1 Green Waste Collection – Residential Refuse Cart Service Customers A. Company shall provide weekly automated Green Waste collection to all Residential Premises receiving Refuse Cart Service on the same day as Refuse collection. Company shall provide each automated Refuse Cart customer one 96-gallon Green Waste Cart, except that Customers with 32-gallon Cart Service will receive a 64-gallon Green Waste Cart. Upon request, Company shall substitute a 64-gallon Green Waste Cart for the 96-gallon Green Waste Cart. Additional Green Waste Carts will be provided at a rate that does not exceed the maximum rates set forth in Exhibit 1. Residential Customers may elect to decline Green Waste collection and will be charged a monthly service rate that does not include such Green Waste collection service. B. Collection of Green Waste Carts will take place at the curbside. The designated collection location of Carts, if disputed by the Customer or 280 Company, will be determined by City. Additionally, if in City’s opinion the existing collection location is inappropriate, City may require the Customer or Company to relocate the collection location. C. Residential Customers located on High Street, between Moorpark Avenue and Spring Road, may obtain Bin Service for Organic Waste, in lieu of Cart Service, in accordance with subsection 3.5.6. Residential Customers selecting this option would pay the regular full service residential rate for Cart Service. 3.3.2 Organic Waste Collection – Refuse Bin Service, Roll-off Service and Commercial Cart Customers A. Company shall make available Collection of Organic Waste to Commercial Premises (including Multi-Family Premises) that subscribe to the service. Organic Waste Collection may be made using Carts or Bins, depending on the needs of the Customer. Company shall collect and remove all Organic Waste from every Customer at least once every week or more frequently if required to handle the Organic Waste generated by the Customer, at a rate not to exceed the maximum rates set forth in Exhibit 1. B. In accordance with Public Resources Code Section 42649.81, certain Multi-Family Premises and Commercial Premises are required to arrange for the Recycling of Organic Waste, through, among other means, Collection by Company. Company shall make diligent good faith efforts to maximize participation in Organic Waste Collection at these premises in accordance with subsection 3.6.2. C. The designated collection location of containers, if disputed by the customer or Company, will be determined by City. Additionally, if in City’s opinion the existing collection location is inappropriate, City may require the Customer or Company to relocate the collection location. 3.4 Additional Services to Customers 3.4.1 On-Call Bulky Waste Pick-up A. Company will provide Bulky W aste pick-up service to Residential Customers receiving Cart Service. These Customers will provide Company with 48 hours’ notice, and the items will be collected on the Customer’s regular Collection day or a scheduled appointment day. These Customers are entitled to two pick-ups per calendar year with up to three items collected per pick-up at no extra charge. B. Company will provide additional pick-ups, or additional items per pick-up for Residential Premises receiving Cart Service, and Bulky Waste pick-ups from Multi-Family and Commercial Premises, upon request. Any such 281 additional pick-ups, or additional items per pick-up, will be charged at rates not to exceed the maximum rates set forth in Exhibit 1. C. Company shall not be required to remove any items that cannot be safely handled by one person. D. Bulky Waste collected by Company may not be landfilled or disposed of until the following hierarchy has been followed by Company: 1. Reuse as is (if energy efficient). 2. Disassemble for reuse or Recycling. 3. Recycle (through participation of charitable organizations). 4. Disposal. 3.4.2 Move In/Move Out Service Company shall provide services above the normal Solid Waste Collection service to Residential Customers as they move in or move out of residences. Customers shall be required to provide Company with a three Business Day notice to initiate such service, at a rate not to exceed the maximum rate set forth in Exhibit 1. Company shall be responsible for recording Residential move in/move out service requests and materials Collected, and Company understands that manual loading may be required to accommodate move in/out requests. Company shall accommodate the greater quantities of Solid Waste that are customarily generated upon Residential Premises at move in and move out by allowing up to twice the normal quantities of these materials to be placed out at the curb and collected at no additional cost. Excess quantities of material set out for Collection shall be at a rate not to exceed the maximum rate set forth in Exhibit 1. 3.4.3 Scout Service Company will offer scout service to all residential Customers requesting assistance to obtain service for streets that are too narrow and/or fragile for a standard collection vehicle and does not provide sufficient space to place the Cart at the street on a Collection day. Scout service shall be provided to move a Customer’s Carts to a serviceable location before pick-up and return the Carts to their original location and shall be offered at a rate not to exceed the maximum rate set forth in Exhibit 1. Company understands that manual service will be required to perform scout service. 3.4.4 Holiday Tree Collection Program Company will collect, transport, and divert from landfill disposal holiday trees which are placed at the curbside at all Residential Premises on the two regularly-scheduled collection days following December 25. Company is not 282 required to divert artificial holiday trees, or trees containing decorations, ornaments, tinsel, debris, support stands or other foreign matter. Company shall also provide two 40-cubic yard Roll-off Boxes for Collection of Holiday Trees during the two weeks following December 25 at locations in the City to be determined by the Parties. 3.4.5 Holiday Cleanup Service Company shall provide, sponsor, and promote, at no charge to City or Residential Customers, an extra service program each year for the two regularly scheduled collection days following December 25, where Residential Premises Cart Service Customers can place up to three large bags or their equivalent of extra Refuse at the curb; and Company shall service this waste manually. A billing insert shall be produced by Company and approved by City outlining the program and providing Residential Accounts with instructions of how and where to place extra waste if the waste is Recyclable Material. If extra waste is Recyclable Material, Company shall keep material separate from Refuse and divert the material as appropriate. 3.4.6 Free Landfill Days For the calendar year commencing on January 1, 2019 and each calendar year thereafter, Company shall provide, sponsor, and promote, at no charge to City or Customers, or tenants thereof, three Free Landfill Days per calendar year at the Simi Valley Landfill and Recycling Center. In addition, Company shall provide one Free Landfill Day between the Operative Date and December 31, 2018. Free Landfill Days shall be on dates agreed upon by both Parties. Residential Customers receiving Cart Service and occupants of other Dwelling Units shall be entitled to bring and dispose of Refuse, and residentially generated Construction and Demolition Waste at no cost for a six-hour pre-determined time period agreed on by both Parties, on designated dates (“Free Landfill Days”). Company shall diligently work to divert as much material as possible from these events and work with non-profit agencies to provide reuse of material whenever possible. Company shall provide reports to City no later than 30 days after each Free Landfill Day to include number of participants, types of materials received, tonnages of material received, and diversion statistics. Participation shall be limited to City residents presenting reasonable evidence of City residency. 3.4.7 Information for New Customers Company shall provide, at the time it begins collection service to a new Customer, written instructions and rules to the Customer as to the procedures for Solid Waste Collection. This service shall be at no cost to City or Customer. 3.4.8 Other Services Company may provide other services to Customers for which a rate is not provided in Exhibit 1 for a charge to be negotiated between Company and the Customer. 283 Any dispute regarding the charge for such services shall be referred to the City Manager, whose decision is final. 3.5 Additional Services to City 3.5.1 Collection From City Facilities At no cost to City, Company shall furnish sufficient Containers, as determined by City, for regularly-scheduled Permanent Collection services at all City Facilities. The list of City Facilities as of the date of this Agreement is attached hereto as Exhibit 2. Company shall service the Containers on the schedule set forth in Exhibit 2. This list may be amended from time to time by City to add facilities acquired by City or to delete facilities no longer owned by City, or to adjust the service levels as needed if additional waste is generated. Any such amendment of the list attached as Exhibit 2 will be made by the City Manager, with the necessity of amending this Agreement. 3.5.2 Roll-off Containers for City Use Annually, at City’s direction, Company shall provide ten 40-cubic yard Roll-off Collections of Solid Waste at no cost to City for community and special events which are sponsored or co-sponsored by City, including but not limited to 3rd of July, Country Days, Multicultural Arts Festival, Coastal Clean-up Day, Arbor/Earth Day, and other special events or additional Collection from City Facilities, including but not limited to demolition, construction, and repair work; remodeling; or Organic Waste removal. Solid Waste collected pursuant to this subsection 3.5.2 shall be diverted from disposal in the landfill to the maximum extent possible. 3.5.3 Abandoned Item Collection At no cost to City, Company shall collect or cleanup abandoned items and non-hazardous spilled waste on City public rights-of-way, or City Facilities, within one Business Day from notification by City, except in emergency situations where immediate cleanup is required. An emergency means when the City Manager determines that it is reasonably necessary to collect spilled or illegally dumped non-hazardous waste before the next Business Day in order to protect the environment from contamination, or to preserve the public peace, health, safety, or welfare. Abandoned items collected pursuant to this Section shall be processed in accordance with subsection 3.4.1.D. 3.5.4 Freeway Litter Control Company agrees to coordinate with Caltrans to provide, at no cost to City, a litter control program along the 118 Freeway from the City limits east of Collins Drive to Los Angeles Avenue, and on the 23 Freeway from Tierra Rejada Road to Los Angeles Avenue, such that there is no gap between the Freeway Litter Control program provided by Company to the Cities of Moorpark and Simi Valley. The plan 284 shall include litter removal on at least a twice per month basis and include the full freeway interchanges within the program area. 3.5.5 Street Container Service Company agrees to provide Collection of street containers placed by City along sidewalks, at a frequency to be agreed upon by City and Company, at no cost to City. City agrees to consult with Company with respect to the locations of street containers, to avoid areas with insufficient space for Collection using a standard collection vehicle, or in high traffic areas. 3.5.6 High Street Trash Containers City and Company agree to use good faith efforts to create and implement a plan for relocation of Carts at Residential and Commercial Premises along High Street to improve aesthetic conditions. The Parties contemplate a single Bin Service location that would serve multiple Residential Customers along this portion of High Street. The Bins may be located within a permanent trash enclosure located off the premises. Residential Customers located on High Street, between Moorpark Avenue and Spring Road, would have the option to obtain Bin Service for Refuse, Recyclable Materials, and Organic Waste Collection in lieu of Cart Service, subject to mutual written approval by City and Company. Residential Customers selecting this option would pay the regular full service residential rate for Cart service. 3.5.7 Street Sweeping Company will provide street sweeping services within the City in accordance with the specifications set forth in Exhibit 3 at no cost to City. Company will commence providing street sweeping services upon the Operative Date of this Agreement. Company shall reimburse City for its actual costs incurred for street sweeping services between the Effective Date of this Agreement and the time Company commences providing street sweeping services. 3.5.8 Compost Bin Distribution Program City shall purchase, promote, and sell, and Company shall, at no additional cost or expense to City or Customer, store and distribute, compost bins to Customers, at City’s request within 14 calendar days of City’s request. 3.6 Diversion 3.6.1 State Diversion Requirements A. Company shall use commercially reasonable efforts to assist City to comply with Public Resources Code Section 41780. In determining compliance with Section 41780, City and Company agree to cooperate in good faith to develop representative per capita disposal calculations, as appropriate. Company shall provide documentation to City within 45 days of the end of 285 each calendar year stating and supporting that calendar year’s diversion rate. B. If City fails to comply with Public Resources Code Section 41780 due to Company’s failure to implement the diversion and public education programs provided for in this Agreement, Company must submit a plan to assist City to comply with Section 41780 through, among other things, implementation of applicable portions of City’s Source Reduction and Recycling Element adopted in accordance with Public Resources Code Section 42649.3, within 90 days of the end of the calendar year. Company’s plan is subject to approval by the City Manager, and to be approved must constitute a good faith plan to implement applicable portions of City’s Source Reduction and Recycling Element, and be reasonably likely to allow City to comply with Section 41780. Implementation of the plan shall be at Company’s sole cost and expense. C. If, following implementation of the plan, City still does not achieve compliance with Section 41780, Company shall implement additional programs required to assist City to comply with Section 41780 as directed by the City Manager, at its sole cost and expense. D. In the event that the State of California increases the mandated diversion percentage of 50% diversion (currently set forth in Public Resources Code Section 41780), requires new programs in addition to those already mandated by the Act [including AB 341 (Chapter 12.8 of Part I of Division 30 of the Public Resources Code) and AB 1826 (Chapter 12.9 of Part I of Division 30 of the Public Resources Code)], or changes the methods for obtaining or measuring compliance with existing requirements, City may impose new or additional recycling requirements in accordance with the City’s Source Reduction and Recycling Element. Company shall be entitled to a reasonable rate adjustment with respect to costs associated with these new or additional recycling requirements in accordance with Section 2.8 and subsection 5.3.3. 3.6.2 AB 341/AB 1826 Outreach A. Company shall make diligent good faith efforts to implement the requirements of AB 341 (Mandatory Recyclable Material Collection) and AB 1826 (Mandatory Organic Waste Collection), including the education, outreach, and monitoring requirements of those laws. Company shall (i) identify all Customers subject to the requirements of AB 341 and AB 1826, (ii) prepare and distribute to all Customers a letter describing AB 341 and AB 1826 requirements, (iii) provide periodic (at least two per year) on-site visits to such premises to offer and promote Recyclable Materials or Organic Waste services until service is initiated (or until service is resumed, in the event of a service interruption of greater than 90 days), (iv) attempt to resolve any logistical detriments to providing these services, 286 and (v) notify and request assistance from City for potential follow up action where there is a repeated refusal to implement these services. City agrees to provide reasonable assistance to Company, including occasional participation by City personnel in meetings with Customers who repeatedly refuse to implement Recyclable Materials or Organics Collection services. Company shall complete identification of all Customers subject to the requirements of AB 341 and AB 1826 by July 31, 2018, and shall distribute the letter referenced above and complete at least one on-site visit to each identified Customer by December 31, 2018. 3.6.3 End Uses for Green Waste A. Company shall divert from disposal all Green Waste materials collected through curbside collection and holiday tree collections and shall provide end uses for Green Waste that maximize diversion credits for City in accordance with regulations established by CalRecycle. Per Public Resources Code Section 41781.3, Alternative Daily Cover (“ADC”) will no longer be acceptable as a diversion credit starting January 1, 2020. Therefore, commencing January 1, 2020, Company shall not process Green Waste materials from Moorpark as ADC, unless prior written approval is obtained from the City Manager. 3.7 Operations 3.7.1 Schedules A. Collection shall take place between the hours of 7:00 a.m. and 7:00 p.m. on any day of the week, except that no pick-ups shall be made on Sunday unless specifically authorized in writing by the City Manager. Hours and days of Collection are subject to change by the City Council. If the regularly scheduled collection day falls on a defined Holiday, alternate Collection will be performed on the following day, unless that day falls on Sunday. Alternative Collection will then be performed on the following Monday. All collection days falling on other legal holidays will remain as scheduled. B. Company must review with City its operation plan outlining the Collection routes, intervals of Collection, and collection times for all materials collected under this Agreement, upon 30 days’ written notice by City requesting such review. Such a review shall not be more than once per calendar year, except that more frequent reviews may be required if operations are not satisfactory, based on documented observations or reports of Complaints. If the plan is determined by City to be inadequate, Company must modify its plan by incorporating changes into a revised plan and reviewing that revised plan with City within 30 calendar days. 287 3.7.2 Vehicles A. General. Company must provide collection vehicles sufficient in number and capacity to perform efficiently the work required by this Agreement in strict accordance with its terms. Any additional vehicles or routes that may be required to meet the service standards during the term of this Agreement will be at Company’s exclusive expense. Company must have available on Collection days sufficient back-up and auxiliary vehicles to respond to any and all Complaints and emergencies. B. Specifications. Company must use collection vehicles that comply with all rules and regulations of the Ventura County Air Pollution Control District, the California Air Resources Board, and any other air-quality regulatory body that may be in authority during the term of this Agreement. Where a collection vehicle is not in compliance with these requirements as of the Operative Date, Company shall bring the collection vehicle into compliance within two years. Collection vehicles must be registered with the California Department of Motor Vehicles and shall have water-tight bodies designed to prevent leakage, spillage, or overflow. C. Vehicle Identification. Company’s name, local telephone number, and a unique vehicle identification number selected by Company and approved by City must be prominently displayed on all vehicles, in letters and numbers no less than three inches high. Company must not place City’s name, City logos, or advertisements (including political advertisements) on Company vehicles. D. Cleaning and Maintenance. 1. Company must maintain all of its properties, vehicles, facilities, and equipment used or located in City in a good, safe, neat, clean, and operable condition at all times. 2. Vehicles used in the Collection of Solid Waste must be painted and thoroughly washed on a regular basis so as to present a clean appearance. City may inspect vehicles at any time to determine compliance with this Agreement. Company must also make vehicles available to the Ventura County Environmental Health Department for inspection, at any frequency it requests. Company agrees to replace or repair, to City’s reasonable satisfaction, any vehicle that City determines in its reasonable judgment to be of unsightly appearance, leaking oil, hydraulic, or other applicable fluids, or in unsatisfactory operating condition. 3. Company must repaint any vehicle, Bin, or Roll-off Box used in the Collection of Solid Waste within 60 days following written notice from 288 City, if City determines in its reasonable judgment that its appearance warrants repainting. 4. Company must inspect each vehicle daily to ensure that all equipment is operating properly. Vehicles that are not operating properly, or vehicles in such a condition as to be unsafe or excessively noisy, must be removed from service until repaired and operating properly. 5. Company must repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown, or any other cause, so as to maintain all equipment in a safe and operable condition. Company must maintain accurate records of repair, which will include the date and mileage (or hours of operation), nature of repair, and the verification by signature of a maintenance supervisor that the repair has been properly performed. 6. Upon request by City, Company must furnish to City not later than 30 days after the end of each calendar year, a written inventory of all equipment, including Collection vehicles, used in providing service. The inventory must list all equipment by manufacturer, ID number, date of acquisition, type, capacity, and age. E. Operation. 1. Vehicles must be operated in compliance with the California Vehicle Code and all applicable local ordinances. Company may not intentionally load vehicles in excess of limitations on vehicles imposed by state or local weight restrictions. 2. Equipment must comply with EPA noise emission regulations, currently codified at 40 CFR Part 205, and other applicable noise control regulations set forth in the Municipal Code, and must incorporate noise control features throughout the vehicle. Company must store all equipment located in City in safe and secure locations in accordance with City’s zoning regulations. 3. Company is responsible for providing immediate notification in the event of oil, hydraulic and other applicable fluid spills from vehicles that occur within City limits. 4. All vehicles must be equipped with GPS tracking devices. Upon request of City, Company shall furnish to City at no additional cost or expense information necessary for City to track the location of vehicles in real time and to generate reports as needed. 289 F. City Inspection per Code. The California Highway Patrol may cause any vehicle used in the performance of this Agreement to be inspected and tested at any commercially reasonable time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with all applicable provisions of the California Vehicle Code, including all Vehicle Code sections regarding smog equipment requirements. City may direct the removal of any vehicle from service if that vehicle is found by the California Highway Patrol to be in nonconformance with applicable codes. No vehicle directed to be removed from service by City may be returned to service until its return to service has been approved by the California Highway Patrol. G. Brake Inspections. The brake system of each collection vehicle used in the performance of this Agreement must be inspected and certified by a trained mechanic who is either a certified mechanic or who is under the supervision of a certified mechanic. Company’s facility, used to store and maintain these vehicles used in the performance of this Agreement, must also be certified under state law by the California Highway Patrol. Notice of certification must be filed with City with the annual report required by subsection 6.3.4. Failure to submit the required certification will be grounds for terminating this Agreement. H. Correction of Defects. Following any inspection, the City Manager has the right to cause Company, at its sole cost and expense, to recondition or replace any vehicle or equipment found to be unsafe, unsanitary, or unsightly. This determination may be appealed to the City Council, whose decision will be final. 3.7.3 Containers A. Cart Design Requirements. The Carts shall be designed and manufactured in accordance with standard industry specifications approved by City before being placed in service by Company. B. Cart Ownership and Maintenance Responsibilities. Company is responsible for Cart repair and maintenance, graffiti removal, and replacing lost, stolen, or damaged Carts within five business days of a request therefor at no additional charge to the Customer or to City. Company may, however, charge the Customer for repairing or replacing a Cart if the damage is due to the Customer’s willful negligence or abuse. In no event may this charge be greater than Company’s actual cost for replacement parts or $75.00 (as adjusted in accordance with Section 5.3.1.B), whichever is less. All Carts provided under this Agreement shall remain the property of Company at all times; and City retains the right to direct Company to remove the Carts at the end of this Agreement at no charge, should City so desire. 290 C. Free Annual Cleaning of Carts. Company shall, at a Customer’s request, clean or replace a cart at no cost to Customer or City one time per calendar year. Company shall provide subsequent cleanings within a calendar year and at a rate not to exceed the maximum rate set forth in Exhibit 1. D. Bins. 1. Company must provide Customers that receive Bin Service with Bin containers for Collection of Solid Waste, when requested. Company must maintain its containers in a clean and sound condition, free from putrescible residue. Containers must be equipped with reflectors to enhance visibility. Containers must be constructed of heavy metal, or other durable material, and must be watertight and well painted. Wheels, forklift slots, and other appurtenances, which are designed for movement, loading, or unloading of the container, must be maintained in good repair. Upon request, Company will clean or replace Bins once each year at no charge to Customer or City. Customers may request additional cleanings at a rate not to exceed the maximum rate set forth in Exhibit 1. Company must remove graffiti from any container within five Business Days of request by City or Customers. All Bins provided under this Agreement shall remain the property of Company at all times. 2. Each Bin placed within the City by Company must have the name and phone number of Company in letters not less than three inches high on the exterior of the container so as to be visible when the container is placed for use. Company must identify the Bin or Bins that are assigned to each Customer using a method that is acceptable to City. Each container must be labeled with a conspicuous warning: “Not to be used for the disposal of hazardous, electronic, or universal waste.” E. Roll-off Boxes. Company must provide clean Roll-off Boxes, free from graffiti and equipped with reflectors. Company must properly cover all open Roll-off Boxes during transport to and from the disposal site. All Roll-off Boxes provided under this Agreement shall remain the property of Company at all times. 3.7.4 Litter Abatement A. Minimization of Spills. Company must use due care to prevent Solid Waste or fluids from leaking or being spilled or scattered during the Collection or transportation process. If any Solid Waste or fluids leak, or are spilled during Collection, Company must promptly clean up those materials. Each collection vehicle must carry absorbent material, a broom, and a shovel at all times for this purpose. Company may not, without City’s prior written consent, transfer loads from one vehicle to another on any public 291 street, unless it is necessary to do so because of mechanical failure or accidental damage to a vehicle. B. Cleanup. During the Collection or transportation process, Company must clean up litter in the immediate vicinity of any Solid Waste storage or collection area under its control or as a result of Company actions. If Company arrives at a collection area with existing litter, Company may charge an Overage Fee, at a rate not to exceed the maximum amount set forth in Exhibit 1, if Company first photographs the pre-existing condition and reports the condition to the City Manager. Company must identify instances of repeated spillage caused by Customers and must report those instances to the City Manager in writing. City shall attempt to rectify such situations directly with the Customer, if Company has already attempted to do so without success. In addition to charging the Overage Fee, if Company documents three instances of overloaded Containers within any 12-month period for any Customer, Company may deliver additional or larger Solid Waste containers to the premises, or require additional weekly collections, and may adjust the rate charged to the Customer, at a rate not to exceed the maximum rates set forth in Exhibit 1. C. Traffic Control in Public Right-of-Way. If the Company requests City traffic control services in conjunction with a cleanup, or if City, in its sole discretion, determines that City traffic control services are required for a cleanup for public safety purposes, City shall provide such traffic control services. Company shall reimburse City for the costs of providing such services at rates contained in the City’s Staff Billing Rates adopted by the City Council in effect at the time the City’s costs were incurred. 3.7.5 Personnel A. Company must furnish such qualified drivers, mechanical, supervisory, clerical, management, and other personnel as may be necessary to provide the services required by this Agreement in a satisfactory, safe, economical, and efficient manner. All drivers must be trained, pre-screened for drug and alcohol, and qualified in the operation of vehicles they operate and must possess a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. B. Company must establish and vigorously enforce an educational program to train Company’s employees in the identification of Hazardous Waste. Company’s employees must not knowingly place any Hazardous Waste in collection vehicles, nor knowingly dispose of any Hazardous Waste at a processing facility or Disposal Site. C. Company must train its employees in customer courtesy, prohibit the use of loud or profane language, and instruct collection crews to perform all work quietly. Company must use its best efforts to assure that all employees 292 present a neat appearance and conduct themselves in a courteous manner. If any employee is found to be discourteous or not to be performing services in the manner required by this Agreement, Company must take all necessary corrective measures including, but not limited to, transfer, discipline, or termination. If City has notified Company of a Complaint related to discourteous or improper behavior, Company shall consider reassigning the employee to duties not involving contact with the public in City while Company is pursuing its investigation and corrective actions. D. Company must provide suitable operations, health, and safety training for all of its employees who use or operate equipment or who are otherwise directly involved in Collection or related operations. 3.7.6 Identification Required. A. Company must provide its employees and subcontractors with identification for all individuals who may have personal contact with Accounts in the City. City may require Company to notify Customers annually of the form of that identification. Company must provide a list of current employees and subcontractors to the City Manager upon request. B. City reserves the right to conduct through law enforcement agencies a security and identification check of Company, and its present and future employees, in accordance with accepted procedures established by City. 3.7.7 Fees and Gratuities. Company may not, nor may it permit any agent, employee, or subcontractor employed by it, to request, solicit, or demand, either directly or indirectly, any compensation or gratuity for the collection, transportation, processing, or disposal of Solid Waste other than Company compensation that is normally paid. 3.7.8 Non-Discrimination. Company may not discriminate in the provision of service or the employment of persons engaged in the performance of this Agreement on account of gender, gender identity or expression, genetic characteristics or information, race, color, national origin, ancestry, religion, creed, sex, physical or mental disability, medical condition, marital status, military or veteran status, sexual orientation, or age in violation of any applicable federal or state law. 3.7.9 Coordination with Street Sweeping Services. City and Company will cooperate in coordinating route schedules with Company’s street sweeping subcontractor. If needed, Company agrees to work with City to resolve conflicts with street sweeping schedules, to avoid street sweeping and Solid Waste pick-ups from occurring on the same day. 293 3.7.10 Change in Collection Schedule. A. Company must notify City 45 days prior to, and Customers not later than 14 days prior to, any change in collection operations that results in a change in the day on which Collection occurs. Company shall not cause any Customer to be without service for more than seven calendar days in connection with a collection schedule change. City’s written approval of any change in the collection schedule is required prior to such change. This approval shall not be unreasonably withheld. B. Any changes in the route map or collection schedule require the prior written approval of the City Manager. City may require changes in the route map or collection schedule to improve service, to resolve Complaints, or for other reasons. Route maps are to be submitted with the annual report. 3.7.11 Report of Accumulation of Solid Waste; Unauthorized Dumping. Company must direct its drivers to note the addresses of any premises at which they observe that Solid Waste is accumulating and is not being delivered for Collection, and the address, or other location description, at which Solid Waste has been dumped in an apparently unauthorized manner. Company must deliver the address or description to City within five Business Days of such observation. Company shall cooperate with City in the investigation and prosecution of any violations of the Municipal Code. 3.8 Disaster and Emergency Service. 3.8.1 Preparedness Upon request, Company shall provide its management expertise and contribute to City’s emergency preparedness planning efforts. 3.8.2 Disaster and Emergency Service A. In the event of an emergency or natural disaster, and when requested by the City Manager, Company shall provide City with the equipment and labor required to collect, cleanup, and remove debris resulting from the emergency or natural disaster. Company shall use commercially reasonable efforts to dispatch the requested equipment and labor to City as promptly as practicable following the written request by the City Manager. City will be given equal priority and access to resources as with other Company franchise jurisdictions. B. Notwithstanding any other provision of this Agreement or the Municipal Code, Company agrees that, in the event that Company is unable to respond within the time period requested by City for Collection, cleanup and removal of debris resulting from an emergency or natural disaster, City shall have the right to engage other persons, firms, and entities to collect, 294 cleanup and remove debris resulting from such emergency or natural disaster for a period ending on the earlier of the date such Collection, cleanup and removal is complete or 30 days following the original request from City. C. At the time when Company’s work may continue following a natural disaster, Company will cooperate with City to prepare and implement a disaster recovery plan. This plan shall identify Company’s plans for maximizing the amount of Recyclable Materials diverted from the waste and debris created by the disaster and to identify and secure disposal sites and capacity for such waste. D. City shall pay Company for the services provided in subsections A and C above, at rates not to exceed the maximum rates set forth in Exhibit 1. Company’s requests for payment for these services shall be accompanied by a full accounting of the labor hours, vehicle usage, disposal costs, and any other costs incurred by Company for which Company is seeking payment. City reserves the right to audit Company’s books and records to ascertain the accuracy of Company’s costs. 3.8.3 Additional Costs If the emergency or disaster requires Company to rent additional equipment, employ additional personnel, or work existing personnel overtime to collect additional Solid Waste resulting from the event, Company shall receive additional compensation, above its normal compensation provided for in this Agreement, to reimburse Company for its additional costs. Company’s additional costs shall be based on the incremental amount of tons of Solid Waste resulting from the event, and the additional amount of labor and equipment used by Company to collect Solid Waste resulting from the event. For its additional labor and equipment, City shall reimburse Company based on the rates shown in Exhibit 1. Prior to incurring any such additional costs, Company shall obtain City’s written authorization to incur such costs. 3.8.4 City Wide Effort to Manage Disaster Debris In the event that City decides to oversee a coordinated effort to manage the Collection and Recycling of disaster related Solid Waste on a citywide basis, Company shall provide City with its management expertise, including a dedicated full-time Recycling coordinator with the background, knowledge, and capability to assist in such an effort. Company shall provide this individual at no additional cost to City. 3.9 Transportation of Solid Waste A. Company must transport all Solid Waste collected in City to a properly permitted transfer station, MRF, transformation facility, or Disposal Site. In addition, City may designate the use of a particular transfer station, MRF, 295 transformation facility, or disposal site. Company agrees to make all reasonable efforts to divert single stream Recyclable Materials, source-separated Recyclable Materials, and Organic Waste from landfill disposal. Company will be entitled to reimbursement to reflect increased costs arising from City’s designation of a transfer station, MRF, transformation facility, processing facility, or Disposal Site. B. Company must maintain complete, accurate, and up-to-date records of the quantities of Solid Waste transported to the transfer station, MRF, transformation facility, processing facility, or Disposal Site and must cooperate with City in any audits or investigations of those quantities. C. Company’s vehicles shall not traverse Tierra Rejada Road unless making a pick-up or delivery requiring use of Tierra Rejada Road. D. Company’s vehicles principally serving areas outside of the City franchise area shall not traverse Arroyo Drive. Company’s vehicles principally serving areas anywhere in the City franchise may traverse Arroyo Drive. 3.10 Solid Waste and Recycling Disposal Guarantee Company shall dispose of Solid Waste collected, but not sent to a processing facility, at a Disposal Site selected by Company. Company guarantees that it will provide or arrange for sufficient capacity to dispose of Solid Waste collected in City during the term, either at a permitted Disposal Site owned and operated by Company or an affiliate, or through arrangements with a third party Disposal Site. Company must ensure that all Solid Waste collected but not sent to a processing facility is disposed of at a permitted Disposal Site. 3.11 Disposal of Solid Waste and Processing Facilities 3.11.1 Designated Disposal Sites Company has designated the Simi Valley Landfill as the Designated Disposal Site. Company covenants that the Simi Valley Landfill is properly permitted, is classified as a Class 3 landfill (permitted to receive only nonhazardous Solid Waste), is not on or being considered for inclusion on a state or federal Superfund list, or CalRecycle list of Solid Waste facilities failing to meet state minimum standards, and is in substantial compliance with all required permits. Company shall dispose of all Solid Waste collected in the City at the Designated Disposal Site, at Company’s expense and in accordance with all Applicable Law. Company shall notify City if changes in the Designated Disposal Site are made, and the change shall be subject to City’s review and approval, which shall not be unreasonably withheld. 296 3.11.2 Designated Recycling Facility Company has designated the Azusa Transfer Station & MRF, owned by an affiliate of Company, as the Designated Recycling Facility. Company covenants that the Designated Recycling Facility is properly permitted and in substantial compliance with all Applicable Law. Company shall deliver all Recyclable Materials collected in City to the Designated Recycling Facility, at Company’s expense and in accordance with all Applicable Law. Company shall ensure that, after Processing, residue material shall not exceed the amount permitted by Applicable Law. Company shall use commercially reasonable efforts to ensure that Recyclable Materials are used in a manner that is classified as diversion. Company shall notify City if changes in the Designated Recycling Facility designation are made; and the change shall be subject to the City’s review and approval, which shall not be unreasonably withheld. 3.11.3 Designated Organic Waste Facility Company has designated the Simi Valley Landfill as the Designated Organic Waste Facility. Company covenants that the Simi Valley Landfill is properly permitted to receive Organic Waste, and is in compliance with all Applicable Law. Company shall deliver all Organic Waste collected in the City to the Agromin Inc. processing facility, located in Oxnard, California, the Designated Organic Waste Facility for processing. If any such delivery to the Designated Organic Waste Facility would not result in City receiving credit in calculating its diversion rate for having diverted the Organic Waste from Disposal in a landfill or transformation facility, another facility must be selected. Company shall ensure that Organic Waste is processed and used in a manner that is classified as diversion. Company shall notify City if changes in the Designated Organic Waste Facility are made; and the change shall be subject to the City’s review and approval, which shall not be unreasonably withheld. 3.11.4 Facility Requirements Company shall ensure that the Designated Disposal Site, Designated Recycling Facility, and Designated Organic Waste Facility are properly permitted and in substantial compliance with Applicable Law at all times during the term of this Agreement. Company shall immediately inform the City Manager in writing in the event of any non-compliance, and City, in its sole discretion, shall have the right to require the use of a different Disposal or Processing Facility, to be selected by Company. The City Council may also, in its sole discretion, require the use of a different site at any time during the term of this Agreement if the Designated Disposal Site, Designated Recycling Facility, or Designated Organic Waste Facility (as the case may be) is found to not be in compliance with the provisions of this Section 3.11.4; and the City Council determines that the Designated Disposal Site, Designated Recycling Facility, or Designated Organic Waste Facility (as the case may be) is not acceptable due to a failure to comply with the terms of this Agreement or a finding by state or federal regulatory agencies that it is not in 297 compliance with Applicable Law, including the environmental statutes, and is unable to accept City’s Solid Waste. Under no circumstances, however, shall a change in one or more of the Designated Disposal Site, Designated Recycling Facility, or Designated Organic Waste Facility pursuant to this subsection 3.11.4 provide a basis for an increase in the rates. 3.12 Annual Route Audit At least once annually and at no cost to City, Company must conduct an audit of its collection routes in the City. The annual route audit must be prepared in form and content acceptable to the City Manager and must include the truck identity, number of accounts serviced, number and size of containers, and the weight of the Solid Waste delivered to the transfer station or Disposal Site. Results of the annual route audit will be available for review by City. 3.13 Service Exceptions; Hazardous Waste Notifications A. Failure to Collect. When Solid Waste is not collected from any Account, Company must notify the Customer in writing at the time Collection is not made, through the use of a “tag” or otherwise, of the reason(s) why Collection was not made. B. Hazardous Waste Inspection and Reporting. Company reserves the right to inspect Refuse, Recyclable Materials, and Green/Organic Waste containers that are put out for Collection and to reject Refuse, Recyclable Materials, and Green/Organic Waste that is observed to be contaminated with Hazardous Waste. Company has the right not to collect Hazardous Waste put out with Refuse, Recyclable Materials, or Green/Organic Waste. Company must notify all agencies having jurisdiction, including the California Department of Toxic Substances Control, Local Emergency Response Providers, and the National Response Center, of reportable quantities of Hazardous Waste that are found or observed in Solid Waste anywhere within the City. In addition to other required notifications, if any substances are observed that Company’s employees reasonably believe or suspect to contain Hazardous Waste and that have been unlawfully disposed of or released on any City property, including storm drains, streets, or other public rights-of-way, Company will immediately notify the City Manager in writing. C. Hazardous Waste Diversion Records. Company must maintain records showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and which was inadvertently collected from Customers within the City, but diverted from landfilling. 298 ARTICLE 4. OTHER SERVICES 4.1 Services and Customer Billing 4.1.1 Service Description Company must, within 15 days prior to the effective date of a rate change, or within 15 days prior to January 1 of any year in which no rate change will occur, prepare and distribute, subject to the direction of City, a notice to each Account setting forth the rates charged to the Customer, annual holiday schedule, Recycling programs offered, and a general summary of services required to be provided under this Agreement and optional services that may be furnished by Company. This notice shall be in a form that is subject to the approval of the City Manager prior to its distribution. The notice may be included with billings. The notice may also be included as part of Company’s public education plan described in subsection 4.3.1. 4.1.2 Residential Billing Discounts Company shall provide a senior citizen discount as set forth in Exhibit 1 to residents 62 years of age or older who own or rent any Residential Premises that receives Cart Service. Company may request proof of residency and age from the Customer requesting the discount. Proof of residency and age may be obtained via Department of Motor Vehicles identification card or driver’s license and standard utility billing invoices. 4.1.3 Billings to Accounts A. Residential Cart Service. Company shall directly bill all Residential Premises Customers with Cart Service (including any charges for additional services where the rate can be determined in advance) on a bi-monthly basis, 30 days in advance. Bills must be itemized by type of service. All bills must carry a due date and not “due upon receipt.” Customers shall be billed at a rate not to exceed the maximum rates set forth in Exhibit 1. B. Permanent Bin and Roll-off Customers. Company shall directly bill all Customers with permanent Bin Service, Roll-off Service, or Commercial Premises Customers with Cart Service (including any charges for additional services where the rate can be determined in advance) on a monthly basis, 30 days in advance. To start service, new Customers shall pay a pro-rated amount for the first month’s service in advance. Customers shall be billed at rates not to exceed the maximum rates set forth in Exhibit 1. C. Temporary Services. Company shall bill Accounts monthly in arrears for temporary services and for fees for additional services where the rate cannot be determined in advance. Payment is due within 30 calendar days 299 of the invoice date. Customers shall be billed at rates not to exceed the maximum rates set forth in Exhibit 1. D. Billing Format and Message Space. Company’s billing statement shall have space sufficient for City’s messages to be printed on the paper and electronic versions of bills. This billing message space shall be available for any City purpose, up to four lines, and be capable of printing 320 characters of text. Company shall print, at no cost to City, any messages that City requests in the message space required by this Agreement up to six times per year. All messages included in printed bills must be included within alternate payment preferences if an alternate payment method (e.g., electronic payment method) is requested by Customers. E. Billing Insert. The billing statement and envelope must be able to accommodate inserted paper messages of not larger than 8-1/2 inches by 11 inches, full color, double-sided. Up to six times per calendar year, and at no cost to City, Company shall include any message insert provided by City into all bills sent to Customers. City will provide one digital camera-ready master copy of the insert. Company shall print City message inserts at its own expense on 100% recycled content paper. Company shall make the billing insert available electronically for all Customers who utilize the alternate payment method, or by printed copy where needed for Customers who receive their billings by mail. 4.1.4 Account Delinquency Company shall provide an Account with a notice of delinquency in the event of non-payment after 60 days from the date of a billing. Company may charge a Late Fee in an amount not to exceed the maximum amount set forth in Exhibit 1. Company will provide City a list of delinquent accounts upon written request. Accounts that have not remitted required payment within 60 days from the date of billing shall be notified that collection services may be discontinued 15 days from the date of notice if payment is not made before that time. If payment is not made by the expiration of that 15-day period, Company may discontinue collection services 48 hours thereafter. Company shall immediately notify the City Manager in writing of any such discontinuance of service. Company shall resume collection services on the next regularly scheduled collection day for any Account whose collection service was discontinued upon receipt of payment of all outstanding charges, including Late Fees, and the Activation Fee not to exceed the maximum amounts set forth in Exhibit 1. Company may not charge for collection services during any period in which collection service was suspended. Company shall provide City with 14 days’ advance written notice prior to suspending collection service to any Residential Premises. City reserves the right 300 to require Company to continue to provide collection service to any Residential Premises if needed to avoid negatively impacting public health or safety. When requested by Company, City agrees to provide reasonable assistance in addressing account delinquencies. 4.2 Customer Service 4.2.1 Office Hours A. Company must establish and maintain a local business office within Ventura County. Office hours shall be, at a minimum, from 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding holidays. A responsible and qualified representative of Company must be available at the office during business hours for communication with the public. Normal office hour telephone numbers must be a toll free call. Company’s telephone system must be adequate to handle the volume of calls typically experienced on the busiest days. Company must also maintain a toll-free telephone number for use during other than normal business hours. Company must have a customer service representative or a message service available at the after-hours telephone number. After-hours calls must be responded to during the next Business Day. B. Company must provide City staff with the phone number of a Company representative who may be reached 24 hours a day, seven days a week, at a location and number readily accessible to City representatives. 4.2.2 Website Company’s website must contain current relevant service information, an on-line payment option allowing Customers to directly pay Company, and current bill inserts. Company shall not charge an additional service fee for on-line payments. 4.2.3 Missed Pick-ups A. Cart Service. When notified of a missed pick-up prior to 12:00 noon on a Business Day, Company must collect the Refuse, Recyclable Materials, and/or Green Waste that same day. If notified after 12:00 noon, Company shall make the collection no later than the next Business Day. B. Bin and Roll-off Service. When notified of a missed pick-up prior to 12:00 noon on a Business Day, Company must collect the Refuse, Recyclable Materials, and/or Organic Waste that same day, except in cases where access to containers is blocked on the Customer’s property. Otherwise, Company shall make the collection no later than the next Business Day. 301 4.2.4 Complaint Documentation A. All service Complaints must be directed to Company. Daily logs of Complaints concerning Collection must be retained for a minimum of 24 months and must be available to City at all times upon request. B. Company must log all Complaints received by telephone. This log must include the date and time the Complaint was received; name, address, and telephone number of caller; description of the Complaint; employee recording the Complaint; and the action taken by Company to respond to and remedy the complaint. All written Customer Complaints and inquiries must be date-stamped when received. All Complaints must be initially responded to within one Business Day of receipt. Company must log action taken by Company to respond to and remedy all Complaints. C. All Customer service records and logs kept by Company will be retained for a minimum of 24 months and must be made available to City upon written request and at no cost to City. City shall, at any time during regular Company business hours, have access to Company’s customer service department for purposes that may include monitoring the quality of customer service or researching Customer Complaints. 4.2.5 Resolution of Customer Complaints A. Disputes between Company and its Customers regarding the services provided under this Agreement, including billing disputes for those services, may be resolved by the City Manager. The decision of the City Manager shall be final and binding. B. Intervention by City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Company. Nothing in this Section is intended to affect the remedies of third parties against Company. 4.2.6 Government Liaison Company must designate in writing a “Government Liaison” who will be responsible for working with City’s designated representatives to resolve Customer Complaints. City has the right to approve Company’s choice of liaison. 4.3 Education and Public Awareness 4.3.1 General Company acknowledges that education and public awareness are essential elements of efforts to achieve the Act’s diversion requirements. Accordingly, Company will implement a public education program to expand public and Customer awareness concerning the necessity for methods of reducing, reusing, 302 and Recycling Solid Waste. The public education program shall include information regarding City’s diversion goals, Bulky Waste pick-ups, and Green and Organic Waste diversion programs. Company shall provide and make available the “Annual Guide to Solid Waste and Recycling”, as required by subsection 4.3.2, to be posted on Company and City websites. Company may also utilize additional promotional activities, such as school assemblies, Chamber of Commerce, or other local activities and events to achieve the goals of the public education program. Company must cooperate fully with City in this regard. Company must submit the public education program for written approval by the City Manager no later than 15 days following to the Operative Date. All materials subject to public distribution shall be subject to review and approval by City prior to release. Any change to the public education program must be approved in writing by the City Manager. 4.3.2 Annual Guide to Solid Waste and Recycling Within 45 days of the Effective Date of this Agreement, and thereafter in the first billing cycle of each calendar year, Company will print, in full color, and insert a double-sided letter-size “Annual Guide to Solid Waste and Recycling” from a camera-ready digital copy provided by City, and include it as an insert in the billing to all Customers. Company shall also make the “Annual Guide to Solid Waste and Recycling” available electronically for all Customers who receive their billing statements electronically. 4.3.3 Community Events At the direction of City, Company must participate in and promote Recycling and other diversion techniques at community events and designated local activities. This participation would normally include providing, at no cost to City, Collection of Solid Waste at the event and educational information promoting the goals of City’s Solid Waste diversion and Recycling program. 4.4 Waste Generation/Characterization Studies Company acknowledges that City may be required periodically to perform Solid Waste generation and disposal characterization studies to comply with the Act or other waste diversion requirements. Company agrees to participate and to cooperate with City and its agents, in the preparation of these studies at no additional cost to City. ARTICLE 5. COMPANY COMPENSATION, RATES, AND FEES; CITY FEES 5.1 General A. The compensation provided for in this Article 5 shall be the full compensation due to Company under this Agreement for all labor, equipment, materials, supplies, taxes, insurance, bonds, overhead, 303 disposal, transfer, profit, and all other things necessary to perform all services required by this Agreement. B. Company shall perform the duties described in this Agreement in consideration of the right to receive compensation for such services rendered at no more than the maximum rates approved by City. 5.2 Compensation to Company A. The initial rates set by Company for services provided pursuant to this Agreement shall not exceed the maximum rates set forth in Exhibit 1. The compensation paid to Company for services rendered from the Operative Date shall not exceed the maximum rates set forth in Exhibit 1, unless otherwise provided for herein or in a written amendment to this Agreement, or adjusted pursuant to Section 5.3. Unless and until the maximum rates set forth in Exhibit 1 are adjusted, Company shall provide the services required by this Agreement charging no more than the maximum rates and fees authorized by Exhibit 1, except as provided herein. B. The Parties agree that the rates to be charged by Company to Customers are set by Company as a private contractor in the marketplace. City’s role with respect to rate setting is to establish rate ceilings for the protection of Customers given the exclusive status afforded Company by this Agreement and given the nature of the services it is to provide. Accordingly, the Parties agree that this Agreement shall be construed to maintain the status of the rates Company chooses to charge its Customers as privately-established rates and not as property-related fees within the scope of Article XIII D of the California Constitution or taxes within the scope of Articles XIII A and XIII C and XIII C Section 1 subd. e of the California Constitution. 5.3 Future Adjustments 5.3.1 Annual Rate Adjustment A. Beginning January 1, 2019 and on each January 1 thereafter, the maximum rates set forth in Exhibit 1, including all of Company’s ancillary fees and charges set forth in Exhibit 1 or otherwise in this Agreement, shall be adjusted as set forth below. All requests for rate adjustments shall be submitted by Company to the City Manager, or his or her designee, by or before November 15 of each year, beginning with November 15, 2018. Failure of Company to request an increase in the maximum rates pursuant to this subsection 5.3.1 in any year shall result in Company waiving its right to escalate the rates for that year. The request for rate adjustment shall be accompanied by all data and documentation necessary to evaluate the request, as reasonably determined by the City Manager. The City Manager shall review the information submitted by Company for completeness and accuracy, and the Parties agree to negotiate in good faith regarding any 304 dispute. No rate adjustment shall become effective unless approved by the City Council. B. Annual Consumer Price Index Adjustment. The rates set forth in Exhibit 1 shall be adjusted to reflect changes in the Consumer Price Index (“CPI”). The adjustment shall equal to 70% of the amount derived by multiplying the previous rate times the percentage increase in the published September Consumer Price Index, All Items for the Los Angeles-Long Beach-Anaheim area compared to the prior year. This rate adjustment shall be applied to the base rate, which excludes the Franchise Fee and AB 939 fee, and is subject to the limitations in subsection 5.3.1.D. C. Landfill Tipping Fee Adjustment. The rates listed below shall be adjusted to reflect changes in the landfill tipping fee. The tipping fee adjustment shall be equal to 30% of the amount derived by multiplying the percent change in the tipping fee from the prior year by the previous rate. This rate adjustment shall be applied to the base rate, which excludes the Franchise Fee and AB 939 fee, for the following rates contained in Exhibit 1: Residential Regular Full Service, Residential Senior Service, Limited/No Yard Trimmings, Trash Cart Upgrades, Additional Trash Carts, Move In/Move Out, Commercial (including Multi-Family) Bins, Temporary Trash Bins, and Temporary Trash Roll-offs. D. Adjustment Limitations. Notwithstanding the above, the rate adjustment may not result in a decrease in the maximum rates, or an increase for any given annual adjustment by more than five percent. In the event the formulas set forth above would have allowed for a greater than five percent increase, or a decrease, in any given year, the unused percentage increase or decrease otherwise permitted shall be carried over until such time as it may be applied without violating the provisions of this subsection. However, if the deferred percentage cannot be fully carried over as part of the next adjustment due to the five percent maximum increase or zero percent maximum decrease, any unused increment would carry over to the subsequent annual adjustment until fully utilized. E. In the event that City is unable by operation of Applicable Law to approve a rate increase pursuant to this Section, the Parties will meet in good faith to resolve the issue. If City is unable to approve the rate increase within a reasonable time, Company has the option to terminate this Agreement, with 12-month written notice to City. 5.3.2 NOT USED 5.3.3 Extraordinary Adjustment. In addition to the annual escalation provided in subsection 5.3.1, commencing with the rate year commencing on January 1, 2019, but not more often than annually, 305 Company may apply for an increase in the rates if Company can demonstrate that Company’s operational costs have substantially increased in an amount greater than the adjustments made pursuant to subsection 5.3.1. For purposes of this subsection, the determination of whether operational costs increased by an amount greater than the adjustments pursuant to subsection 5.3.1 will be calculated based on the full amount of the percentage change in the CPI per subsection 5.3.1.B, as if the five percent limitation in subsection 5.3.1.D was not applied. For the purpose of this subsection, operational costs shall be defined as: motor vehicle fuel; insurance; Company’s personnel costs (salaries and benefits); equipment repair costs; landfill and processing fee; tipping fees; equipment purchases; and Recyclable Materials market conditions, including commodity values, transportation costs, and materials processing costs for Recyclable Materials to return to the market. When applying for an increase, Company shall submit to City information, in writing, in support of the adjustment. Additional factors to be taken into consideration in connection with the adjustment request will include, but are not limited to: • Overall customer satisfaction with Company. • Company’s satisfactory compliance with all provisions of this Agreement. • Company’s compliance with Solid Waste diversion requirements as defined and mandated by the State of California and implemented by City. Company shall submit any and all data requested in the format prescribed by the City Manager. The City Council shall review the information submitted by Company, and in its reasonable judgment, make the final determination as to whether an adjustment to the maximum rates will be made; and, if an adjustment is permitted, the appropriate amount of the adjustment. City may consider increases or decreases in Company’s total revenues and total cost of services when reviewing an extraordinary rate adjustment request. Notwithstanding the preceding sentence, a requested adjustment may not be denied in the case of changed or additional services requested by City (exclusive of any change in the list of City Facilities per subsection 3.5.1), additional reporting required by City, City’s designation of a Disposal Site or processing facility (except as provided in subsection 3.11.4), any change in City’s Municipal Code affecting Company’s operations, or changes in state or local government Solid W aste fees and charges. Any such rate adjustment approved by the City Council shall become effective at a time designated by the City Council. 5.3.4 Notice of Rate Increase Company shall provide all Customers with advance written notice of rate increases, in the form of a bill insert at least 15 days’ prior to the effective date of such increases. Notwithstanding the preceding sentence, Company shall provide 306 all Customers with written notice of the rate increases that become effective on July 1, 2018, in the form of a bill insert in the bills first mailed after the Effective Date. 5.3.5 Applicable Law If a rate adjustment requested per this Section 5.3 is determined by City to be accurately calculated in accordance with this Section, and would otherwise have been approved by the City Council, but is prevented from implementation due to Applicable Law, then Company is permitted to terminate this Agreement upon 12-month written notice to City, but shall not be entitled to compensation from City or Customers for revenue not received due to Applicable Law. 5.4 Most Favored City Company agrees that, should it provide comparable integrated waste management services in a neighboring city during the term of this Agreement, for rates (net of franchise fees or other fees) lower than those charged by Company in the City, the rates charged to Customers in the City of Moorpark shall be reduced to an amount not greater than the average amount charged to customers in those neighboring cities. For purposes of this Section 5.4, “neighboring cities” shall mean the cities of Simi Valley and Thousand Oaks, and “comparable integrated waste management services” shall mean residential service for Refuse, Recyclable Materials, and Green Waste not less than once per calendar week, at generally similar frequencies, and using generally similar equipment and facilities. 5.5 Franchise Fee A. Company shall pay to City a Franchise Fee of six percent of Gross Receipts from Residential Premises and eight percent of Gross Receipts from Commercial Premises. All fees shall be payable by Company to City, on a monthly basis, no later than the 15th day of the following month. Should the 15th day fall on a Saturday, Sunday, or holiday, payment shall be due on the next Business Day following. Fees not received by City by the date due shall be subject to a late fee of $500.00 and a penalty in an amount equal to two percent of the total amount due if fees are one through ten days late; and ten percent of the total amount due if fees are more than ten days late, except to the extent that such lateness is due to extenuating circumstances. B. In the event this Agreement is terminated, the balance due of any unpaid Franchise Fees shall be paid within 30 days after the date services are terminated. C. Commencing December 31, 2018, and each December 31 thereafter, Company shall deliver to City its estimate of Company’s Gross Receipts for the next calendar year, so that City may budget for the amount of the Franchise Fee City can anticipate receiving during the next calendar year. 307 5.5.1 NOT USED 5.5.2 Disputes Regarding Franchise Fee Remittances No acceptance of any payment by City of the Franchise Fee shall be construed as an accord that the amount is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim City may have against Company for any additional sums payable under the provisions of this Agreement. All amounts paid shall be subject to independent audit and recomputation by City. If, after audit, such recomputation indicates a fee underpayment, Company shall pay to City the amount of the underpayment within ten days of receipt of written notice from City that such is the case. In addition, Company shall pay interest on any underpayment as provided in subsection 5.5.A. Such interest shall commence accruing on the date the underpayment would have originally been due. Further, if, after audit, such recomputation indicates a Franchise Fee underpayment of more than two and one-half percent, Company shall reimburse City for all reasonable costs and expenses incurred in connection with the audit and recomputation within ten days of receipt of written notice from City that such is the case. If, after audit, such recomputation indicates a Franchise Fee overpayment, City shall notify Company in writing of the amount of the overpayment. Company may offset the payment or payments (as appropriate) next due following receipt of such notice by the amount specified therein. In case of dispute between City and Company regarding any amounts due, Company shall pay the amount claimed by City as due and notify City in writing at the time of payment as to any portion that is paid under protest, specifying the basis of its claim of overpayment. 5.6 City Fees 5.6.1 Community Services Contribution Within 30 days of the Operative Date, Company shall make a one-time payment of $210,000.00 to be used for community services provided by City. The expenditure of funds shall be at the discretion of City. 5.6.2 Agreement Administrative Costs Within 30 days of the Operative Date, Company shall make a one-time payment of $10,000.00 to reimburse City for expenses incurred in connection with entering into this Agreement. 5.6.3 AB 939 Fees A. Company shall pay to City an AB 939 fee of $1.20 per month per regular full service Residential Account, $1.14 per month per 32-gallon Cart Service/Limited Service/Senior Service Residential Account, and eight percent of Gross Receipts from Commercial Premises. Company shall pay 308 the AB 939 fee at the same time as the Franchise Fee pursuant to Section 5.5. B. In the event this Agreement is terminated, the balance due of any unpaid AB 939 fees shall be paid within 30 days after the date services are terminated. 5.6.4 Annual Impact Fee Within 30 days of the Operative Date, and each July 1 thereafter, Company shall pay to City an annual impact fee of $187,300.00 to compensate City for impacts to its infrastructure from Company’s activities. The expenditure of funds shall be at the discretion of City. 5.6.5 Household Hazardous Waste Contribution Within 30 days of the Operative Date, and each July 1 thereafter, Company shall pay to City a Household Hazardous Waste contribution of $35,000.00 to offset City’s expenditures associated with Collection and disposal of Household Hazardous Waste. 5.6.6 Annual Rate Review Reimbursement On or before November 1, 2018, and each November 1 thereafter, Company shall pay to City $2,700.00 to reimburse City for expenses incurred in calculating, implementing, and preparing staff reports for annual rate adjustments. 5.6.7 Late Payment The provisions set forth in subsection 5.5.A with respect to late payment of the Franchise Fee shall also apply to fee payments made in accordance with subsections 5.6.3, 5.6.4, 5.6.5, and 5.6.6. 5.7 Grants From time to time, federal, state, or local agencies including City may provide to Company grants to assist in financing qualified programs provided by Company (including, without limitation, grants for diversion programs and related equipment, alternative fuel vehicles and equipment, and Household Hazardous W aste Collection/disposal). Company and City shall coordinate grant application and administration efforts as they may arise. 309 ARTICLE 6. RECORDS, REPORTS AND INFORMATION REQUIREMENTS; PERFORMANCE REVIEW 6.1 General Company must maintain such accounting, statistical, and other records related to its performance under this Agreement as may be necessary to develop the financial statements and other reports required by this Agreement. Company shall also conduct data collection, information and record keeping, and reporting activities necessary to comply with Applicable Law and regulations and to meet the reporting and Solid Waste program management needs of City, in particular the reporting obligations imposed by the Act. In this regard, the requirements set out in this and other Articles of this Agreement shall not be considered limiting or necessarily complete. This Article is intended only to highlight the general nature of records and reports and does not define precisely what records and reports are to be submitted, or their content. Upon the written direction of City, the records and reports to be maintained and provided by Company in accordance with this and other Articles of this Agreement must be adjusted in number, format, or frequency. 6.2 Records 6.2.1 General A. Company must maintain records required to conduct its operations, to support requests it may make to City, and to respond to requests from City regarding the performance of Company’s obligations under this Agreement. Adequate security must be maintained to protect records from events that can reasonably be anticipated, such as a fire, theft, or earthquake. Electronically-maintained data and records must be protected and backed up. All records shall be maintained for seven years, and the last seven years of records must be maintained for an additional seven years after the expiration of this Agreement. B. The records of Company shall be made available to City and its official representatives during normal business hours. City may review or use any of the records described in this Article for the purposes set forth in Section 6.5. 6.2.2 Solid Waste Service Records Records relating to the following matters must be maintained by Company for a period of two years: A. Customer service names and addresses. B. Routes. 310 C. Facilities, equipment, and personnel. D. Log of Complaints and actions taken to remedy various issues. E. Missed pick-ups. F. Damage to public and/or private property in connection with performed services. G. Number of Refuse, Recyclable Materials, and Green/Organic Waste containers. H. Tons collected, processed, diverted, and disposed of by type of service, waste stream, and Customer. I. Weight of each category of recyclable material recovered at an MRF. J. Payroll records. K. Other records as directed by City prior to the expiration of this Agreement. 6.2.3 Disposal Records Company must maintain records of the disposal or processing of all Solid Waste collected in the City during the term of this Agreement, including all extensions. If Company ceases to provide Solid Waste Handling Services to City, Company must submit to the City Manager all records of the disposal or processing of Solid Waste collected in the City within 30 days after discontinuing service. These records must be in a chronological and organized form and capable of being readily interpreted. 6.2.4 Other Program Records Records for other Solid Waste programs and services will be tailored to specific needs. In general, they will include: A. Plans, tasks, and milestones; and B. Accomplishments, such as activities conducted, quantities of products used, produced or distributed, and numbers of participants and responses. 6.3 Reports 6.3.1 Report Formats and Schedule A. Records must be maintained in a format that facilitates the use of data contained in them to structure reports, as needed, that can be used, among other things, to: 311 1. Evaluate the efficiency of operations. 2. Evaluate past and current progress towards achieving the Act’s goals and objectives. 3. Determine the needs for adjustments to Solid Waste programs. 4. Evaluate customer service and Complaints. 5. Calculate fees based on the Local Street Access Agreement described in Section 2.5.E. B. City will provide sample report formats, but Company may propose report formats that are responsive to the objectives of each report. The format of each report requires approval by City. Company shall submit all reports on thumb drives or DVD, or by electronic means in a format that is compatible with City’s software and computers at no additional charge, if requested by City. When requested by City, an authorized Company official shall certify, under penalty of perjury, that the report being submitted is true and correct. C. Monthly and quarterly reports must be submitted within 15 calendar days after the end of a month or quarter, as applicable. Should the 15th day fall on a Saturday, Sunday, or Holiday, the report shall be due on the next Business Day following. If requested, Company’s Complaint summary, described in subsection 6.3.3.I, shall be sent to the City Manager within five Business Days of request. Annual reports must be submitted on or before March 31 following the reporting year. All reports will be submitted to: City Manager (or designated representative) City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 6.3.2 Monthly Reports The following information is the minimum required to be reported monthly: Tons of Solid Waste collected by Company for the previous month sorted by type of type of Account (Residential, Commercial, Multi-Family, Roll-offs) and the facilities where the tonnage was processed or disposed. 6.3.3 Quarterly Reports The following information is the minimum required to be reported quarterly: A. Number of Cart Service Accounts billed by Company, including the number of accounts at each service level and the percentage of Accounts 312 participating in the Recycling program and the Green/Organic Waste program. B. Number of Multi-Family Bin or Roll-off Service Accounts billed by Company, including the percentage of Accounts participating in the Recycling program and the Green/Organic Waste program. C. Number of Commercial Accounts billed by Company, including the percentage of Commercial Accounts participating in the Recycling program and the Green/Organic Waste program. D. Statement showing kinds of Recyclable Materials collected and the quantity sold (in tons) and/or disposed of. E. Number of Bulky Waste pick-ups completed. F. Number of missed collections reported to Company. G. Copies of promotional and public education materials sent during the preceding quarter. H. Copies of Hazardous Waste diversion records showing types and quantities, if any, of Hazardous Waste that was inadvertently collected, but diverted from landfilling. I. Complaint summary for the quarter, identifying the nature of Complaints. J. Other information or reports that City may reasonably request. 6.3.4 Annual Report The annual report shall combine the information contained in the monthly and quarterly reports and shall also include: A. A complete inventory of equipment used to provide all services (such as vehicles and whether they comply with Ventura County Air Pollution Control District and California Air Resources Board requirements, containers by size, and the waste stream from each type of container). B. A list of all Accounts billed by Company, including service address, billing address, and service levels, i.e., number of Carts in service by type of service (Refuse, Recyclable Materials, Green Waste), size (32-, 65-, or 95-gallon), and additional Cart charges; and for Bins and Roll-off Service, the number and size of containers, and type and frequency of service. C. The Annual Route Audit required under Section 3.12. D. Disposal records required under subsection 6.2.3. 313 E. A calculation of Street Sweeping Credit Hours as described in Section 1.8 of Exhibit 3. F. General information about Company, including a list of officers and directors, and the most recent annual report and other periodic public financial reports of Company or Company’s parent guarantor. G. Report can be submitted in electronic format. 6.4 Adverse Information A. Reporting Adverse Information. Company must provide to City two copies of all reports, pleadings, applications, notifications, notices of violation, or other communications that materially and adversely affect Company’s performance of services under this Agreement, that are submitted by Company to, or received by Company from, the United States or California Environmental Protection Agency, CalRecycle, the Securities and Exchange Commission, or any other federal, state, or local agency, including any federal or state court. Copies must be submitted to City simultaneously with Company’s filing or submission of such matters to those agencies. Company’s routine correspondence to those agencies need not be submitted to City but must be made available to City promptly upon City’s written request. B. Failure to Report. The refusal or failure of Company to file any required reports, or to provide required information, or the inclusion of any materially false or misleading statement or representation by Company in any required report, will be deemed a material breach of this Agreement, as described in subsection 8.1.4, and will subject Company to all remedies that are available to City. 6.5 Right to Inspect Records City has the right to inspect or review specific documents or records that are required under this Agreement, and that City, in its reasonable discretion, deems necessary to evaluate annual reports, monthly reports, compensation adjustment applications, and Company’s performance. 6.6 Periodic Review City will periodically review Company’s performance based on Customer Complaints, timely payment of sums due, statistical reporting, program progress, etc. This review will be conveyed to the City Council, and Company may review the report and submit its own statement. 314 6.7 Performance Review A. City, at its sole discretion, may require up to three times during the term of this Agreement, a performance review subject to the terms and conditions of this Section 6.7. A qualified firm under contract to City shall perform the performance review. City, in its sole discretion, shall select the qualified firm to conduct the performance review. B. The costs of the performance review shall be equally shared by Company and City, except that Company shall not be obligated to pay more than $2,500.00 for any one performance review. Notwithstanding the preceding sentence, if the performance review finds a material breach or default in Company’s performance, Company shall in a timely manner reimburse City the total cost of the performance review within ten days of written demand from City. C. The performance review shall address all appropriate areas, including, but not limited to, the following areas, and shall provide specific recommendations, as appropriate, for improvement in each area: 1. Compliance with the terms of this Agreement and Applicable Law. 2. Overall organizational structure, management systems, and procedures. 3. Efficiency of collection operations, including an analysis of routes, schedules, and the impact to Agreement requirements. 4. Staffing practices, including the deployment of management and supervisory personnel. 5. Financial management practices, including Company’s billing and collection system and its policies with regard to uncollected Accounts. 6. Personnel management practices, including compensation policies and the resolution of employee grievances. 7. Employee job and safety training and management of Hazardous Waste. 8. Procedures for receiving and resolving Customer Complaints and concerns. 9. Procedures for the acquisition, maintenance, safety check, and replacement of equipment. 10. Utilization and management of facilities, equipment, and personnel. 315 D. Company shall cooperate fully with the performance review, and provide within 30 days of request, all operational, financial, and other information deemed reasonable or convenient by City or the firm for purposes of conducting the performance review. Company’s failure to cooperate or provide all requested information shall be considered an event of default. E. In conjunction with any performance review, City reserves the right to require changes to Company’s operations, which City determines to be necessary or appropriate by reason of the findings or results of the performance review to carry out the intent of the terms and conditions of this Agreement. ARTICLE 7. INDEMNIFICATION, INSURANCE AND BONDS 7.1 Indemnification A. Company shall indemnify and hold harmless City, its elected and appointed boards, officials, commissions, officers, employees, volunteers, contractors, and agents (collectively, “Indemnitees”), from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or in equity of every kind and description (including, but not limited to, injury to and death of any person and damage to property, or for contribution or indemnity claimed by third parties) arising or resulting from and in any way connected with (1) the negligence or willful misconduct of Company, its officers, employees, agents, subsidiaries, or subcontractors in performing services under this Agreement; (2) the failure of Company, its officers, employees, agents, subsidiaries, or subcontractors to comply in all respects with the provisions of this Agreement, Applicable Law (including, without limitation, Environmental Laws), ordinances and regulations, or applicable permits and licenses; or (3) the acts of Company, its officers, employees, agents, subsidiaries, or subcontractors in performing services under this Agreement for which strict liability is imposed by law (including, without limitation, Environmental Laws). The foregoing indemnity applies regardless of whether such loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death, or damage is also caused in part by any of the Indemnitees’ negligence, but does not extend to matters resulting from the Indemnitees’ sole or active negligence, willful misconduct, breach of this Agreement, or violation of law. Company further agrees to and will, upon demand of City, at Company’s sole cost and expense, defend (with attorneys acceptable to City) the Indemnitees against any claims, actions, suits in law or in equity or other proceedings, whether judicial, quasi-judicial or administrative in nature, arising or resulting from any of the events referenced above. B. Company, upon demand of City, made by and through the City Attorney, shall protect City and appear and defend the Indemnitees in any claims or 316 actions by third parties, whether judicial, administrative, or otherwise, including, but not limited to, disputes and litigation over the definitions of “Solid Waste” or “Recyclable Material,” or the limits of City’s authority with respect to the grant of licenses or agreements, exclusive or otherwise, asserting rights under the Dormant Commerce Clause or federal or state laws to provide Solid Waste services in the City. This provision shall survive the expiration of the term during which collection services are to be provided under this Agreement. City and Company will confer following any trial to decide jointly whether to appeal or to oppose any appeal. If City and Company jointly agree to appeal, or to oppose any appeal, City and Company will share equally the costs of appeal. Should either City or Company decide to appeal, or to oppose an appeal, and the other decides not to appeal, or to oppose an appeal, the Party that decides to appeal, or to oppose an appeal, will bear all fees and costs of the appeal or the opposition to the appeal. The foregoing obligations will not apply to the extent of City’s sole or active negligence, willful misconduct, breach of this Agreement, or violation of law. C. Company shall indemnify and hold harmless City, its elected and appointed boards, officials, commissions, officers, employees, volunteers, contractors, and agents (collectively, “Indemnitees”), from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law or in equity of every kind and description related to the cyber liabilities listed below. Company, upon demand of City, made by and through the City Attorney, shall protect City and appear and defend the Indemnitees in any claims or actions by third parties, whether judicial, administrative, or otherwise with respect to the items listed below. This provision shall survive the expiration of the term during which collection services are to be provided under this Agreement. City and Company will confer following any trial to decide jointly whether to appeal or to oppose any appeal. If City and Company jointly agree to appeal, or to oppose any appeal, City and Company will share equally the costs of appeal. Should either City or Company decide to appeal, or to oppose an appeal, and the other decides not to appeal, or to oppose an appeal, the Party that decides to appeal, or to oppose an appeal, will bear all fees and costs of the appeal or the opposition to the appeal. 1. Liability arising from the theft, dissemination, and/or use of a Customer’s confidential or personally identifiable information; including credit monitoring and regulatory fines arising from such theft, dissemination, or use of the confidential information. 2. Network security liability arising from the unauthorized use of, access to, or tampering with computer systems. 3. Liability arising from the failure of technology products (software) required for Company to properly perform the services intended. 317 D. Company’s duty to indemnify and defend against the above-referenced events arising during the term of this Agreement, and as it may be extended, shall survive the expiration or earlier termination of this Agreement. 7.2 Hazardous Substances Indemnification Company must defend with counsel reasonably acceptable to City, indemnify, protect, and hold harmless the Indemnitees from and against all claims, damages (including but not limited to special, consequential, natural resources, and punitive damages), injuries, costs, (including without limitation all response, remediation, and removal costs), losses, demands, claims, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties, attorneys’ fees for the adverse party, and expenses (including without limitation attorneys’ and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity), (collectively, “Damages”) of any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnitees arising from or attributable to the acts or omissions of Company, its officers, directors, employees, subsidiaries, or agents, whether or not negligent or otherwise culpable, in connection with or related to the performance of this Agreement, including without limit Damages 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 governmental action) concerning any Hazardous Substance, Hazardous Waste, Household Hazardous Waste, Solid Waste, or other waste that has been generated, collected, stored, transported, or disposed of in the City. The foregoing indemnity is intended to operate as an agreement pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607(e); Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq.; and California Health and Safety Code Section 25364, to defend, protect, hold harmless, and indemnify the Indemnitees from liability. This provision is in addition to all other provisions in this Agreement and will survive the end of the term of this Agreement. The liability of Company under this Section 7.2 is not limited to the limits of the policies of insurance provided for under Section 7.5. The foregoing obligations will not apply with respect to any facility designated by City under Section 3.9 except for facilities owned and operated by Company or its Affiliate. 7.3 Reduction of CERCLA and Other Liabilities City and Company agree to meet annually, at the request of City, to discuss ways to reduce potential CERCLA and other liabilities to third parties. 7.4 Indemnification for Failure to Meet Diversion Requirements Subject to the requirements of Public Resources Code Section 40059.1, which shall control in the event of any conflict with the provisions of this Section, 318 Company shall indemnify and hold harmless City from and against all fines and penalties imposed by CalRecycle if the source reduction and Recycling goals, or any other requirements of the Act or similar legislative reenactments, are not met by City. In the event CalRecycle provides an administrative process to challenge the imposition of a compliance order or a fine or fines, Company shall be responsible for engaging consultants and/or attorneys to represent City in any challenge. Company shall also be responsible for the retention of and payment to any consultants engaged to perform waste generation studies (diversion and disposal). All consultants and/or attorneys engaged hereunder are subject to the mutual agreement of City and Company. Company’s indemnification of City is subject to all of the following restrictions: A. Company’s obligation to indemnify City shall not be enforceable if the state-imposed penalty is based solely upon the failure of City to establish and maintain a source reduction and recycling element pursuant to the Act. B. No payment required under Company’s obligation to indemnify City may exceed that portion of any penalty assessed by the state against City that was attributable to Company’s breach of or noncompliance with an express obligation or requirement. Further, Company shall not be liable under the indemnity obligation to the extent that Company’s breach or noncompliance resulted from City’s action or failure to act, determined as a result of judicial review, hearing, or appeal to the CalRecycle. 7.5 Insurance Company must maintain in force for the term of this Agreement the policies of insurance specified in this Section. City does not waive any rights against Company that it may have under the above-referenced hold harmless provisions because of acceptance by City of the insurance policies, or the deposit with City by Company of the insurance certificates or endorsements, described below. A. Minimum Scope of Insurance. Coverage must be at least as broad as: 1. The most recent editions of Insurance Services Office Commercial General Liability coverage (“Occurrence” form CG 0001). 2. The most recent editions of Insurance Services Office form number CA 0001 covering Automobile Liability, Code 1 “any auto,” and endorsement CA 0025. 3. Workers’ Compensation insurance (as required by the Labor Code of the State of California) and Employers Liability insurance. B. Minimum Limits of Insurance. Company must maintain in force for the term of this Agreement limits no less than: 319 1. General Liability: Two Million Dollar ($2,000,000.00) limit per occurrence, for bodily injury, personal injury, and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit will apply separately to this project location or the general aggregate limit will be twice the required occurrence limit. 2. Automobile Liability: Two Million Dollars ($2,000,000.00) per accident for bodily injury and property damage. 3. Workers’ Compensation and Employers Liability: Workers’ Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of One Million Dollars ($1,000,000.00) per accident. 4. Pollution Liability: One Million Dollars ($1,000,000.00) per accident. 5. Company agrees that, should it provide greater insurance coverage for a neighboring city during the term of this Agreement, then Company shall provide the same insurance coverage to City. For the purposes of this Section 7.5, “neighboring city” shall mean the cities of Simi Valley and Thousand Oaks. C. Deductibles and Self-Insured Retentions. In the event that City believes that Company is unable or unwilling to pay any deductibles or self-insured retentions, Company shall procure a bond guaranteeing payment of all losses and expenses of related investigations, claims administration, and defense in the amount of those deductibles or self-insured retentions. D. Other Insurance Provisions. The policies must contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages. (a) City and its officers and employees are to be named as additional insureds as respects: liability arising out of activities performed by or on behalf of Company; products and completed operations of Company; premises owned, leased or used by Company; and vehicles owned, leased, hired or borrowed by Company. The coverage must contain no limitations on the scope of protection afforded to City, its elective and appointive boards, commissions, officials, employees, agents or volunteers. (b) The automobile liability policy shall be endorsed to delete the Pollution and/or the Asbestos exclusion and add the Motor Carrier Act endorsement (MCS-90), TL 1005, TL 1007 and/or other endorsements required by federal or state authorities. 320 (c) Company’s insurance coverage must be primary insurance with respect to the Indemnitees. Any insurance or self-insurance maintained by City, its officials, elective and appointive boards, commissions, employees, agents or volunteers will be excess of Company’s insurance and will not contribute to it. (d) Any failure to comply with reporting provisions of the policies will not affect coverage provided to the Indemnitees. (e) Coverage must state that Company’s insurance will 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. 2. Workers’ Compensation and Employers Liability Coverage. The insurer must agree to waive all rights of subrogation against the Indemnitees for losses arising from work performed by Company for City pursuant to this Agreement. 3. All Coverages. Each insurance policy required by this Section must be endorsed to state that coverage will not be canceled except after 30 days’ prior written notice by certified mail, return receipt requested, has been given to City. Further, in addition to the requirements of subsection H below, Company shall provide prompt notice to City upon receipt of a notice of suspension, a reduction in coverage or non-renewal. E. Acceptability of Insurers. The insurance policies required by this Section must be issued by an insurance company or companies authorized to do business in the State of California and with a rating in the most recent edition of Best’s Insurance Guide of category VII or larger, and a rating classification of A- or better. F. Verification of Coverage. Company must furnish City with certificates of insurance and with original endorsements effecting coverage required by this Section. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms provided by or acceptable to City and are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies at Company’s local business office, upon prior written notice to Company. Renewal certificates will be furnished periodically to City to demonstrate maintenance of the required coverage throughout the term of this Agreement. 321 G. Companies and Subcontractors. Company must include all other companies and subcontractors performing activities in City as insureds under its policies or furnish separate certificates and endorsements for each other company and subcontractor. All coverages for companies and subcontractors will be subject to all of the requirements stated in this Section. H. Required Endorsements. 1. The Workers’ Compensation policy must contain an endorsement in substantially the following form: (a) “Thirty (30) days’ prior written notice by certified mail, return receipt requested, will be given to City in the event of cancellation of this policy. Such notice shall be sent to: City Manager City of Moorpark 799 Moorpark Avenue Moorpark, California 93021” 2. The General Liability policy must contain endorsements in substantially the following form: (a) “Thirty (30) days’ prior written notice will be given to City in the event of cancellation of this policy. Such notice will be sent to: City Manager City of Moorpark 799 Moorpark Avenue Moorpark, California 93021” (b) “City, its officers, elective and appointive boards, commissions, employees, and agents are additional insureds on this policy.” (c) “This policy will be considered primary insurance as respects any other valid and collectible insurance maintained by City, including any self-insured retention or program of self-insurance, and any other such insurance will be considered excess insurance only.” (d) “Inclusion of City as an insured will not affect City’s rights as respects any claim, demand, suit or judgment brought or recovered against Company. This policy will protect Company and City in the same manner as though a separate policy had been issued to each, but this will not operate to increase Company’s liability as set forth in the policy beyond 322 the amount shown or to which Company would have been liable if only one party had been named as an insured.” I. Other Insurance Requirement. 1. Company must comply with all requirements of the insurers issuing policies. The carrying of insurance will not relieve Company from any obligation under this Agreement. If any claim exceeding the amount of any deductibles or self-insured reserves is made by any third party against Company, or any company or subcontractor, on account of any occurrence related to this Agreement, Company must promptly report the facts in writing to the insurance carrier and to City. 2. If Company fails to procure and maintain any insurance required by this Agreement, City may take out and maintain, at Company’s expense, such insurance as it may deem proper and deduct its cost from any moneys due Company. 7.6 Faithful Performance Bond A. Performance Bond Required. Within 15 days after the Effective Date, but in any event prior to the Operative Date, Company shall deliver to City a performance bond, from an admitted surety insurer with an A.M. Best rating of not less than A-, in the amount of $200,000.00 substantially in the form provided in Exhibit 4, which secures the faithful performance of this Agreement, including, without limitation, payment of any liquidated damages and the funding of any work to cure a breach of this Agreement. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional, continuously renewed, and remain in force during the entire term of this Agreement and for the period specified in subsection 7.6.C, and shall be null and void at the conclusion of that period only if Company promptly and faithfully performs all terms and conditions of this Agreement. B. Forfeiture of Performance Bond. In the event Company shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the performance bond which is necessary to recompense and make whole City, forfeited to City. Upon partial or full forfeiture of the performance bond, Company shall restore the performance bond to its face amount within 30 days of City’s declaration. Failure to restore the performance bond to its full amount within 30 days shall be a material breach of contract. C. Duty to Maintain Beyond Service Term. Some Agreement requirements extend beyond the term and other requirements, such as minimum 323 Diversion rates per Section 3.6, will not be substantiated until after the final service date. Therefore, Company shall not terminate the performance bond, and will renew it to ensure continuous availability to City, until receiving a written release from City. Any performance bond will automatically expire at the end of 12 months after the end of the term unless City has notified Company in writing as to a specific contractual area of concern yet to be resolved, instructing Company to retain the bond. Neither permission from City to discontinue holding this bond, nor permitted expiration after 12 months, shall relieve Company of payments to City that may be due, or may become due. D. Costs of Collection. If the performance bond is drawn upon, all of City’s costs of collection and enforcement of the provisions relating to the performance bond called for by this Section, including all attorney’s fees and costs, will be paid by Company. 7.7 Property Damage Any physical damage caused by the negligent or willful acts or omissions of employees of Company to public or private property must be promptly repaired or replaced by Company at Company’s sole expense, excluding normal wear and tear. 7.8 Pavement Damage Company is responsible for damage to City’s driving surfaces, whether paved or not paved, beyond normal wear and tear, caused by Company’s vehicles. Company understands that performance under this Agreement may involve the operation of its collection vehicles over private roads and streets. Disputes between Company and its Customers as to damage to private pavement are civil matters, and Complaints of damage received by City will be referred to Company as a matter within the scope of Section 7.1 . Company will obtain permission to enter upon private streets within the City. Company may provide special services to Accounts that are adjacent to private streets, such as scout service, at the rates set forth in Exhibit 1. 7.9 Corporate Guaranty Within 15 days after the Effective Date, Company must provide to City a corporate guaranty (“Guaranty”) executed by Waste Management, Inc., guarantying the complete and timely performance by Company of each and every term of this Agreement that Company is required to perform. The Guaranty must be acceptable to the City Attorney, and substantially the form attached as Exhibit 5 to this Agreement. 324 ARTICLE 8. DEFAULT, REMEDIES AND LIQUIDATED DAMAGES 8.1 Administrative Remedies; Imposition of Damages; Termination 8.1.1 Notice of Deficiencies; Response; Appeal 8.1.1.1 Notice of Deficiencies; Response If the City Manager determines that Company’s performance is not in conformity with the provisions of this Agreement, the Act (including, but not limited to, requirements for diversion, source reduction, and Recycling as to the waste stream subject to this 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 Solid and Hazardous Waste, the City Manager may advise Company in writing of the deficiencies, specifying the deficiencies in reasonable detail. The City Manager, in any written notification of deficiencies, will set a reasonable time within which Company must respond. Unless the circumstances necessitate correction and response within a shorter period of time, Company must respond to the written notification of deficiencies within 30 days from its receipt of that written notice. Unless the circumstances necessitate correction and response within a shorter period of time, Company may request additional time to correct deficiencies. City may approve reasonable requests for additional time. 8.1.1.2 Review by the City Manager: Notice of Appeal A. The City Manager shall review any written response from Company and decide the matter. If the City Manager’s decision is adverse to Company, the City Manager may order remedial actions to cure any deficiencies, assess the bond referred to in Section 7.6, or invoke any other remedy in accordance with this Agreement. If the City Manager determines that there has been a material breach and that termination is the appropriate remedy, then the City Manager may recommend to the City Council that this Agreement be terminated. The City Manager must promptly inform Company of the City Manager’s decision. If the decision is adverse to Company, the City Manager must inform Company, in writing, of the specific facts found and evidence relied upon, the legal basis for the City Manager’s decision, and any remedial action taken or ordered. An adverse decision by the City Manager will be final and binding on Company unless Company files a “Notice of Appeal” with the City Clerk (with copies to the City Manager and the City Attorney) within 30 days of receipt of the City Manager’s notification of the adverse decision. B. In any “Notice of Appeal,” Company must state its factual contentions and include any relevant affidavits, documents, photographs, or videotapes that 325 Company may choose to submit. In addition, Company must include its legal contentions, citing provisions of this Agreement or Applicable Law to support those contentions. 8.1.1.3 Review by the City Manager: Appeal A. Within 30 days of receipt by the City Clerk of a “Notice of Appeal,” the City Manager will decide the matter. If the City Manager’s decision is adverse to Company, the City Manager may order remedial actions to cure any deficiencies, assess the bond provided under Section 7.6, or invoke any other remedy in accordance with this Agreement, except for termination. If the City Manager determines that there has been a material breach and that termination is the appropriate remedy, the City Manager may recommend that the City Council terminate this Agreement. In addition to the foregoing actions, the City Manager may refer the matter to the City Council for proceedings in accordance with subsections 8.1.2 and 8.1.3. The City Manager must promptly inform Company of the City Manager’s decision. If the decision is adverse to Company, the City Manager must inform Company, in writing, of the specific facts found and evidence relied on, the legal basis for the City Manager’s decision, and any remedial action taken or ordered. B. An adverse decision by the City Manager will be final and binding unless Company files a “Notice of Appeal to the City Council” with the City Clerk (and serves a copy, by mail, on the City Manager and the City Attorney) within 30 days of receipt of the decision of the City Manager. A “Notice of Appeal to the City Council” must state the factual basis and all legal contentions and must include all relevant evidence, including affidavits, documents, photographs, or videotapes that Company may choose to submit. 8.1.2 City Council Hearing If a matter is referred by the City Manager to the City Council, or an adverse decision of the City Manager is appealed to the City Council by Company, the City Council shall set the matter for a hearing and act on the matter. The City Clerk must give Company 14 days’ written notice of the time and place of the hearing. At the hearing, the City Council shall consider the administrative record, consisting of the following: A. A staff report from the City Manager, summarizing the proceedings to date and outlining the City Council’s options. B. The City Manager’s written notification of deficiencies. C. Company’s response to the notification of deficiencies. D. The City Manager’s written notification to Company of adverse decision. 326 E. Company’s “Notice of Appeal”. F. The City Manager’s written notification to Company of adverse decision. G. Company’s “Notice of Appeal to the City Council”. 8.1.3 City Council Determination Based on the administrative record, the City Council shall determine by resolution whether the decision or order of the City Manager should be upheld, including any recommended termination of this Agreement. If, based upon the administrative record, the City Council determines that Company’s performance is in breach of any term of this Agreement, or violates any provision of any applicable federal, state, or local statute or regulation, the City Council, in the exercise of its discretion, may order Company to take remedial actions to cure the breach or impose any other remedy in accordance with this Agreement. The City Council may not terminate this Agreement unless it determines that Company is in breach of a material term of this Agreement, or a material provision of any applicable federal, state, or local statute or regulation. Company’s performance under this Agreement is not excused during the period of time prior to a final determination as to whether Company’s performance is in material breach of this Agreement, or during the period of time set by City for Company to discontinue all or a portion of its service under this Agreement. The decision or order of the City Council shall be final and binding. With the exception of draws on the bond, the execution of City’s remedies will be stayed until Company has exhausted its appeals under Sections 8.1 and 8.2 of this Agreement. 8.1.4 Reservation of Rights by City A. City reserves the right to terminate this Agreement, or to impose liquidated damages, temporary suspensions, or any other condition deemed appropriate, short of termination, in the event of any material breach of this Agreement, including, but not limited to any of the following: 1. Fraud or Deceit or Misrepresentation. If Company engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation to City regarding material information. 2. Insolvency or Bankruptcy. If Company becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition, or takes steps to liquidate its assets. 3. Failure to Maintain Coverage. If Company fails to provide or maintain in full force and effect the Workers’ Compensation, liability, and/or indemnification coverage required by this Agreement. 4. Violation of Regulations. If Company violates any orders of any regulatory body having jurisdiction over Company or City that have a 327 material impact on Company’s performance under this Agreement, provided that Company may contest any such orders by appropriate proceedings conducted in good faith, in which case no breach of this Agreement will be deemed to have occurred until a final decision adverse to Company is entered. 5. Failure to Perform. If Company ceases to provide collection, processing, or Recycling services as required under this Agreement over all or a substantial portion of its franchise area for a period of two consecutive days or more, for any reason within the control of Company, but subject to Section 8.3.2. 6. Failure to Pay or Provide Information. If Company fails to make any payments required under this Agreement or refuses to provide to City, within ten days of the demand, required information, reports, or records in a timely manner. 7. Acts or Omissions. Any other act or omission by Company that has a material effect on Company’s performance under this Agreement that violates its terms, conditions, or requirements, the Act, Applicable Law (including any Environmental Law), or any law, statute, ordinance, order, directive, rule, or regulation issued thereunder and which is not corrected or remedied within the time specified in the written notice of the violation or, if Company cannot reasonably correct or remedy the breach within the time set forth in such notice, if Company fails to commence to correct or remedy such violation within the time specified in such notice and to thereafter diligently effect such correction or remedy. 8. False or Misleading Statements. Any representation or disclosure made to City by Company in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, that proves to be false or misleading in any material respect as of the time such representation or disclosure is made. 9. Attachment. There is a seizure of, attachment of, or levy on, the operating equipment of Company, including without limitation its equipment, maintenance, or office facilities, or any part thereof. 10. Failure to Provide Assurance of Performance. If Company fails to provide reasonable assurances of performance as required under Section 8.4. 11. Felonious Conduct. If Company, or any of its officers or directors, is found guilty of felonious conduct related to the performance of this Agreement, or of felonious conduct related to antitrust activities, 328 illegal transport or disposal of hazardous or toxic materials, or bribery of public officials related to the performance of this Agreement. B. Upon a material breach by Company under subsection 8.1.4.A above, City has the right to terminate this Agreement, without the need for any hearing, suit, or legal action, as follows: (i) upon ten days’ notice for any of the events in sub-subsections 1, 2, 8, or 11 above, or if the public health or safety is threatened, or (ii) otherwise upon 30 days’ notice and opportunity to cure. 8.1.5 Cumulative Rights A. City’s rights to terminate this Agreement are not exclusive, and City’s termination of this Agreement shall not constitute an election of remedies. These rights are in addition to all other legal and equitable rights and remedies that City may have. B. Because of the necessity for timely, continuous, and high-quality service, the time required to effect alternative service, and the exclusive rights granted by City to Company, the remedy of monetary damages for a material breach of this Agreement by Company is inadequate, and City may be entitled to obtain injunctive relief. 8.2 Liquidated Damages A. General. The Parties agree that, as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages that would be incurred by City as a result of a breach by Company of its obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (1) substantial damage results to members of the public who are denied service or are denied quality or reliable service; (2) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of this Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity that are incapable of measurement in precise monetary terms; (3) the services provided under this Agreement might be available at substantially lower costs than alternative service, and the monetary loss resulting from denial of service or from denial of quality or reliable service is impossible to calculate in precise monetary terms; and (4) the termination of this Agreement for such breaches, and other remedies are, at best, a means of future correction and not remedies that make the public whole for past breaches. B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties further acknowledge that consistent, reliable Solid Waste Collection service is of utmost importance to City and that City has considered and relied on Company’s representations as to its quality of 329 service commitment in awarding the franchise. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if Company fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it will be impractical and extremely difficult to determine the exact amount of damages that City will suffer. Therefore, without prejudice to City’s right to treat such non-performance as an event of default under this Article 8, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated, and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each Party specifically confirms the accuracy of the statements made above and the fact that each Party has had ample opportunity to consult with legal counsel and to obtain an explanation of these liquidated damage provisions prior to the execution of this Agreement. Company City Initial Here ______ Initial Here ______ Company agrees to pay as liquidated damages, and not as a penalty, the amounts set forth below: 1. Collection Reliability (a) For each failure to commence service to a new Account within five days after order, which exceeds three such failures in any one calendar year: $250.00 (b) For each failure to collect Refuse, Recyclable Material, or Green/Organic Waste which has been properly set out for collection, from an established Account or Accounts, on the scheduled collection day and not collected within the period described in subsection 4.2.3, which exceeds five such failures in any one calendar year: $300.00 for each calendar year plus $10.00 per occurrence per Account (c) For each failure to collect Refuse, Recyclable Material, or Green/Organic Waste which has been properly set out for collection, from the same Account on two consecutive scheduled pick-up days, or three scheduled pick-ups in any one calendar year: $600.00 for each calendar year plus $20.00 per occurrence per Account 330 2. Collection Quality (a) For each occurrence of failure to properly return empty containers to avoid pedestrian or vehicular traffic impediments, or to place containers upright, which exceeds five such occurrences in any one calendar year: $100.00 (b) For each failure to clean up Refuse, Recyclable Material, or Green/Organic Waste spilled from containers (except where caused by overloading by the Customer) that exceeds five such failures in any one calendar year: $100.00 (c) For each occurrence of collecting Refuse, Recyclable Material, or Green/Organic Waste during unauthorized hours: $150.00 (d) For each failure to clean or replace containers in accordance with subsection 3.7.3 of this Agreement, which exceeds five such failures in any one calendar year: $100.00 for each calendar year plus $10.00 per occurrence per Account (e) For each failure to deliver a temporary Roll-off Box or temporary Bin within 48 hours of a Customer’s request: $100.00 3. Customer Responsiveness (a) For each failure to initially respond to a Customer Complaint within one Business Day: $100.00 (b) For each failure to carry out responsibilities for establishing service: $100.00 (c) For each failure to remove graffiti from containers or to replace with containers bearing no graffiti, within five Business Days of request from City or Customers: $100.00 4. Timeliness of Submissions to City Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be: (a) Monthly Reports: $100.00 per day (b) Quarterly Reports: $150.00 per day (c) Annual Reports: $200.00 per day 331 5. Accuracy of Billing (a) Each invoice billing run that is not prepared in accordance with City’s approved rate schedule and not rectified on or before the next billing cycle: $100.00 (b) Each occurrence in which a service address is “double billed” with multiple invoices sent to different billing addresses (for example, both a tenant and an off-site property owner are billed for service at the same location): $150.00 6. Implementation of Public Education Plan Each day past the agreed upon deadline that Company fails to perform a task set forth in its public education plan: $50.00 per day C. Imposition of Liquidated Damages. 1. City may determine the occurrence of events giving rise to liquidated damages through the observations of its own employees or representatives or through the investigation of Customer Complaints. 2. Prior to assessing liquidated damages, City shall give Company notice of its intention to do so. The notice shall include a brief description of the incident or the event of non-performance. Company may review (and make copies at its own expense) all non-confidential information in City’s possession relating to the incident or the event of non-performance. Company may, within ten days after receiving the notice, request a meeting with the City Manager. Company may present evidence in writing and through testimony of its employees and others relevant to the incident or the event of non-performance. The City Manager shall provide Company with a written explanation of the determination on each incident or event of non-performance prior to authorizing the assessment of liquidated damages. The decision of the City Manager shall be final, unless appealed to the City Council in accordance with subsection 8.1.2 (any such appeal requires compliance with subsection 8.1.1.3.B). D. Amount. City may assess liquidated damages for each calendar day or each event, as appropriate, that Company is determined to be liable. E. Timing of Payment. Company must pay any liquidated damages assessed by City within ten days after they are assessed. If assessed damages are not paid within the ten-day period, City may proceed against the performance bond or order the termination of the franchise granted by this Agreement, or exercise any other right or remedy available to City 332 under this Agreement or in law or in equity, or any combination of these remedies. 8.3 Excuse from Performance 8.3.1 Force Majeure. The Parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural disasters, war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the Party claiming excuse from performance hereunder. 8.3.2 Labor Unrest. Labor unrest, including but not limited to strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action conducted by Company’s employees or directed at Company will be considered an excuse from performance to the extent that Company meets the terms of this Section 8.3. Notwithstanding other remedies to which City shall be entitled under this Agreement in event of failure to perform, in the event of Company’s failure to perform, or anticipated failure to perform, due to labor unrest, Company shall: 1. Have provided a contingency plan to City within 90 days of the execution of this Agreement demonstrating how services will be provided during the period of labor unrest. The contingency plan is subject to City approval; and Company shall amend the plan to meet City requirements, including reasonably demonstrating how City’s basic Collection and sanitary needs will be met to City’s satisfaction. The plan shall address, at a minimum, the priority of Collection by customer type (residents, hospitals, restaurants, nursing homes, etc.) and waste streams, additional Collection options to be provided (drop-off sites, etc.), source of additional personnel to be utilized and detailed communications procedures to be used. 2. Notify the City Manager 60 days prior to the expiration of its drivers’ labor agreement. 3. Meet the requirements agreed to in the contingency plan. 4. Meet requirements of subsection 8.3.3 below. Company shall meet all requirements under this Section or City may choose to revoke this excuse from performance offered under this Agreement and may choose to use enforcement provisions under this Agreement, including Sections 8.1, 8.3 and 8.4, in which case Company is not excused from performance; and Company shall be obligated to continue to provide service notwithstanding the occurrence of any or all of such events. 333 8.3.3 Procedures in Event of Excused Performance. The Party claiming excuse from performance under subsection 8.3.1 or 8.3.2 shall, within two days after such party has notice of such cause, give the other Party notice of the facts constituting such cause and asserting its claim to excuse under this Section. Throughout service disruption, Company shall: 1. Provide City with a minimum of daily service updates. 2. Shall notify Customers on a real-time basis as to alternative Collection procedures. At a minimum, Company shall update its website and shall provide ongoing updates to City for use on its website, and a “reverse 911” contact method to reach all possible Customers. Should enhanced contact technologies become available, Company shall use such methods upon approval from City. The interruption or discontinuance of Company’s services caused by one or more of the events excused shall not constitute a default by Company under this Agreement. Notwithstanding the foregoing, however, if Company is excused from performing its obligations hereunder for any of the causes listed in this Section for a period of ten days or more, City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten days’ notice. If Company resumes full performance of its obligations prior to the expiration of the ten-day notice period, the notice shall be of no further force or effect. 8.4 Assurance of Performance City may, at its option and in addition to all other remedies it may have, demand from Company reasonable assurances of timely and proper performance of this Agreement, in such form as City may require. If Company fails or refuses to provide satisfactory assurances of timely and proper performance in the form and by the date required by City, such failure or refusal will be an event of default. ARTICLE 9. OTHER AGREEMENTS OF THE PARTIES 9.1 Relationship of Parties The Parties intend that Company shall perform the services required by this Agreement as an independent contractor engaged by City and not as an officer or employee of City, nor as a partner of or joint venture with City. No employee or agent of Company shall be deemed to be an employee or agent of City. Except as expressly provided herein, Company shall have exclusive control over the manner and means of conducting the Solid Waste Handling Services performed under this Agreement and over all persons performing those services. Company is solely responsible for the acts and omissions of its officers, employees, subsidiaries, subcontractors, affiliates, and agents. Neither Company nor its officers, 334 employees, subsidiaries, subcontractors, affiliates and agents will obtain any rights to retirement benefits, Workers’ Compensation benefits, or any other benefits that accrue to City employees by virtue of their employment with City. 9.2 Compliance with Law In providing the services required under this Agreement, Company must at all times, and at its sole cost, comply with all Applicable Law of the United States, the State of California, and local agencies. City must comply with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies that are now in force and as they may be enacted or amended during the term of this Agreement. 9.3 Governing Law This Agreement is governed by, and will be construed and enforced in accordance with, the laws of the State of California. 9.4 Jurisdiction Any lawsuits between the Parties arising out of this Agreement will be brought and concluded in the courts of the State of California, which will have exclusive jurisdiction over such lawsuits. With respect to venue, the Parties agree that this Agreement is made in and will be performed in Ventura County. 9.5 Assignment A. Neither Party may assign its rights, nor delegate, subcontract, or otherwise transfer its obligations under this Agreement, to any other person without the prior written consent of the other Party. Any such assignment made without the consent of the other Party is void, and the attempted assignment will constitute a material breach of this Agreement. B. For purposes of this Section and when used in reference to Company, “assignment” includes, but is not limited to: (1) a sale, exchange, or other transfer to a third party of substantially all of Company’s assets dedicated to service under this Agreement; (2) a sale, exchange, or other transfer of outstanding common stock of Company to a third party, provided such sale, exchange or transfer may result in a change of control of Company; (3) any dissolution, reorganization, consolidation, merger, re-capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation, or other transaction that results in a change of ownership or control of Company; (4) any assignment by operation of law, including insolvency or bankruptcy, an assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Company’s property, or transfer occurring in the event of a probate proceeding; and (5) any combination of the foregoing (whether or not in related or 335 contemporaneous transactions) that has the effect of a transfer or change of ownership, or change of control, of Company. C. Company acknowledges that this Agreement involves rendering a vital service to Accounts within the City, and that City has selected Company to perform the specified services based on (1) Company’s experience, skill, and reputation for conducting its operations in a safe, effective, and responsible fashion, at all times in compliance with applicable Environmental Laws, regulations, and the best Solid Waste management practices; and (2) Company’s financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Company to perform the services to be rendered under this Agreement. D. If Company requests City’s consideration of and consent to an assignment, City may deny or approve such request in its reasonable discretion. A request by Company for consent to an assignment will require compliance with the following requirements: 1. Any application for a change of ownership or a transfer will be made in a manner prescribed by the City Manager and will include any information reasonably required by the City Manager. The written application must include a transfer application fee in the amount of $35,000.00, to cover the reasonable costs of all direct and indirect administrative expenses of City, including, without limitation, consultants and attorneys necessary to analyze the application. The applicant must pay such transfer fee prior to any authorized change of ownership or franchise transfer becoming effective. Notwithstanding the above, payment of a transfer fee will not be required in the event of an assignment to an Affiliate of Company. 2. Except for an assignment to an Affiliate of Company, in addition to the transfer application fee described in subsection 9.5.D.1, Company shall pay a transfer fee to City of seven percent of Gross Receipts from the last 12 months, upon approved transfer of this Agreement. 3. Except for an assignment to an Affiliate of Company, the proposed assignee must furnish City with audited financial statements of the proposed assignee’s operations for the immediately preceding three operating years. 4. Except for an assignment to an Affiliate of Company, the proposed assignee must furnish City with satisfactory proof: (a) that the proposed assignee has at least ten years of Solid W aste management experience on a scale equal to or exceeding the scale 336 of operations conducted by Company under this Agreement; (b) that in the last five years, the proposed assignee has not received any significant citations from any federal, state, or local agency having jurisdiction over its Solid W aste management operations due to any material failure to comply with state, federal, or local Environmental Laws and that the assignee has provided City with a complete list of such citations; (c) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (d) that the proposed assignee conducts its Solid W aste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state, and local laws regulating the Collection and disposal of Solid Waste, including Hazardous Substances; and (e) any other information required by City to ensure that the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. 5. Under no circumstances shall City be obligated to consider any proposed assignment if Company is in default at any time during the period of consideration. 9.6 Contracting or Subcontracting Company must not engage any subcontractors for the Collection of Solid Waste from Accounts without the prior written consent of City. 9.7 Binding on Assigns The provisions of this Agreement will inure to the benefit of and be binding on the permitted assigns of the Parties. 9.8 Transition to the Next Company If the transition of services to another company occurs by reason of the expiration of the term, default, termination, or otherwise, Company shall cooperate with City and any subsequent solid waste enterprise to assist in an orderly transition that will include, but not be limited to, Company providing route lists and billing information. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this Agreement and/or other equitable relief necessary to enforce this Agreement. Company shall use diligent good faith efforts to provide a new service provider with all keys, security codes, and remote controls used to access garages and Bin enclosures, acknowledging that these are the property of the Customer. Company shall be responsible for coordinating transfer immediately after Company’s final pick-ups, so as not to disrupt service. Company shall provide City with detailed route sheets containing service names and addresses, billing names and 337 addresses, monthly rate and service levels (number and size of containers and pick-up days) at least 90 days prior to the transition date, and provide an updated list two weeks before the transition and a final list of changes the day before the transition. Company shall provide means of access to the new service provider at least one full Business Day prior to the first day of Collection by another party, and always within sufficient time so as not to impede in any way the new service provider from easily servicing all containers. 9.9 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. 9.10 Non-Waiver Provision The waiver by either Party of any breach or violation of any provision 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 moneys that become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation by the other Party of any provision of this Agreement. Failure of either Party to exercise any of the remedies set forth in this Agreement within the time periods specified will not constitute a waiver of any rights of that Party with regard to an event of nonperformance, whether determined to be a breach, excused performance, or unexcused default by the other Party. 9.11 Notice A. All notices, demands, requests, proposals, approvals, consents, and other communications that this Agreement requires, authorizes, or contemplates must be in writing and must either be personally delivered to a representative of the Party at the address set forth below, or be deposited in the United States mail, first class postage prepaid, addressed as follows: If to City: City Manager City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 With copy to: Kevin G. Ennis City Attorney Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071 If to Company: Michael Smith Director of Collection Operations 338 Waste Management 195 W est Los Angeles Avenue Simi Valley, California 93094 With copy to: Waste Management Southern California Market Area 9081 Tujunga Avenue Sun Valley, California 91352 Attn: Legal Counsel B. The address to which communications may be delivered may be changed from time to time by a written notice given in accordance with this Section. C. Notice will be deemed given on the day it is personally delivered or, if mailed, three days from the date it is deposited in the mail. 9.12 Representatives of the Parties A. As set forth in Section 2.6, the administration of this Agreement by City will be under the supervision and direction of the City Manager. B. Company must, by the Operative Date, designate in writing a responsible officer who will serve as the representative of Company in all matters related to this Agreement. Company must inform City in writing of that designation and of any limitations upon that officer’s authority to bind Company. City may rely upon actions taken by that designated representative as actions of Company unless they are outside the scope of the authority delegated by Company as communicated in writing to City. 9.13 City Free to Negotiate with Third Parties Notwithstanding the exclusive nature of this Agreement, City may investigate all options for the Collection, transporting, Recycling, processing, and disposal of Solid Waste at any time prior to the expiration of the term of this Agreement. Without limiting the generality of the foregoing, but subject to the requirements of Section 2.8, City may solicit proposals from Company and from third parties for the provision of collection services, disposal services, Recycling services, Organic Waste services and processing, and any combination thereof, and may negotiate and execute agreements for those services that will take effect upon the expiration or earlier termination of this Agreement under Article 8. 9.14 Compliance with Municipal Code Company must comply with all applicable provisions of the Municipal Code, and with all amendments to those provisions, during the term of this Agreement. 339 9.15 Privacy Company must strictly observe and protect the rights of privacy of Customers. Information identifying individual Customers or the contents of a Customer’s waste stream must not be revealed to any person, governmental unit, or private entity unless directed by a court of law, by statute, or upon authorization of the Customer. This provision shall not be construed to preclude Company from preparing, participating in, or assisting in the preparation of waste characterization studies or waste stream analyses that may be required by the Act. This provision does not apply to reports or records provided to City under this Agreement so long as City maintains reports or records with customer identification as confidential information in accordance with this Section. 9.16 Proprietary Information; Public Records City acknowledges that certain records and reports of Company are proprietary and confidential. Where required by this Agreement, Company is obligated to permit City to inspect its records on demand at Company’s offices. City will endeavor to maintain the confidentiality of all proprietary information provided by Company. Notwithstanding the foregoing, any documents provided by Company to City that are public records may be disclosed in accordance with a proper public records act request. 9.17 Attorneys’ Fees In any action or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party is entitled to an award of attorneys’ fees in the amount reasonably incurred in the prosecution or defense of that action. The term “prevailing party” means the party entitled to recover costs of suit, upon the conclusion of the matter, in accordance with the laws of the State of California. ARTICLE 10. MISCELLANEOUS PROVISIONS 10.1 Entire Agreement This Agreement, including the exhibits, constitutes the entire agreement between the Parties with respect to the matters covered; and no verbal agreement or understanding with any officer, agent, or employee of City, either before, during, or after the execution of this Agreement, will affect or modify any of the obligations herein contained, nor will any such verbal agreement or understanding entitle Company to any additional payment under the terms of this Agreement. 340 10.2 Article and Section Headings The article and section headings in this Agreement are for the convenience of reference only and are not intended to be used in construing this Agreement, nor are they intended to alter or affect any of its provisions. 10.3 References to Laws and Regulations All references in this Agreement to laws and regulations will be understood to include existing laws and regulations as they may be subsequently amended or recodified, unless otherwise specifically provided. 10.4 Interpretation This Agreement, including the attached exhibits, 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. 10.5 Amendments This Agreement may not be amended in any respect except by a written amendment signed by the Parties; and, no verbal agreement or understanding with any officer, agent, or employee of City, either before, during, or after the execution of this Agreement, will affect or modify any of the obligations herein contained, nor will any such verbal agreement or understanding entitle Company to any additional payment under the terms of this Agreement. 10.6 Severability If any provision of this Agreement is for any reason determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, including but not limited to a change in applicable federal, state, or local law, the invalidity or unenforceability of that provision shall not affect any of the remaining provisions of this Agreement, which provisions shall be enforced as if such invalid or unenforceable provision had not been included. 10.7 Exhibits Each of the exhibits identified in this Agreement is attached hereto and is incorporated by this reference. 10.8 Authority and Effective Date A. The persons signing below represent that they have the requisite authority to bind the entities on whose behalf they are signing. B. This Agreement shall become effective on the Effective Date. 341 TO EFFECTUATE THIS AGREEMENT, each of the Parties has caused this Agreement to be executed by its duly authorized representative. CITY OF MOORPARK, a California municipal corporation ________________________________ Janice S. Parvin, Mayor ATTEST: ________________________________ Maureen Benson, City Clerk APPROVED AS TO FORM: ________________________________ Kevin G. Ennis, City Attorney USA WASTE OF CALIFORNIA, INC, a Delaware corporation ________________________________ Michael E. Smith, Director of Operations 342 EXHIBIT 1 INITIAL MAXIMUM RATES 343 Solid Waste Service Fees in the City of Moorpark (Effective July 1, 2018) Residential Rates ......................................................................................... 2 Commercial Rates ........................................................................................ 3 Discard Bin Rates .............................................................................. 3 Recycling/Composting Bin Rates ...................................................... 4 Temporary Bins/Roll-Off Drop Boxes ........................................................... 4 Miscellaneous Services ................................................................................ 5 344 Residential Service Rates BASE SERVICE Option A1: Regular Full Service Rate .............................................. $30.63 per month • 64-gallon trash cart • 64-gallon recyclables cart • 96-gallon yard trimmings cart Option A2: Senior Full Service Rate (62+ years) ............................. $25.64 per month • 64-gallon trash cart • 64-gallon recyclables cart • 96-gallon yard trimmings cart Option B1: 32-Gallon Service Rate .................................................. $25.64 per month • 32-gallon trash cart • 64-gallon recyclables cart • 64-gallon yard trimmings cart Option B2: Senior 32-Gallon Service Rate ....................................... $21.46 per month • 32-gallon trash cart • 64-gallon recyclables cart • 64-gallon yard trimmings cart Option C1: Limited/No Yard Trimmings Rate ................................... $21.80 per month • 32-gallon trash cart • 64-gallon recyclables cart • No yard trimmings cart Option C2: Senior Limited/No Yard Trimmings Rate ........................ $21.46 per month • 32-gallon trash cart • 64-gallon recyclables cart • No yard trimmings cart SERVICE UPGRADES 1. Trash Service Upgrades a. Upgrade trash cart from 32-gallon to 64-gallon ............ $3.35 per month (Only available with Options C1, C2) b. Upgrade trash cart from 64-gallon to 96-gallon ............ $3.35 per month (Only available with Options A1, A2) c. Additional 64-gallon trash cart ..................................... $5.59 per month (Only available with Options A1, A2) 345 d. Additional 96-gallon trash cart ..................................... $8.94 per month (Only available with Options A1, A2) 2. Recycling Service Upgrades a. Upgrade recycling cart from 64-gallon to 96-gallon ..... $1.12 per month b. Additional 64-gallon recycling cart ............................... $2.79 per month c. Additional 96-gallon recycling cart ............................... $3.35 per month d. Downgrade recycling cart from 64-gallon to 32-gallon . No Rate Change 3. Yard Trimmings Service Upgrades a. Upgrade yard trimmings cart from 64-gal. to 96-gal. .... $2.23 per month b. Additional 96-gallon yard trimmings cart ...................... $3.35 per month OTHER CHARGES Customer Service Level Changes .......................................... $5.85 per request Move In/Move Out Service ..................................................... $18.78 Additional Bulky Item Pickup .................................................. $28.22 per item (Two pickups of up to three items each per year are free) 346 Commercial Service Rates DISCARD BIN RATES Option A: One 1.5 Cubic-Yard Discard Bin a. Pick up one time per week ................................................ $151.07 per month b. Pick up two times per week ............................................... $255.59 per month c. Pick up three times per week ............................................ $360.10 per month d. Pick up four times per week .............................................. $464.55 per month e. Non-contracted 1.5 cubic-yard pickup ............................... $64.00 f. Compacted 1.5 cubic-yard pickup ..................................... $302.14 Option B: One 3.0 Cubic-Yard Discard Bin a. Pick up one time per week ................................................ $168.50 per month b. Pick up two times per week ............................................... $290.42 per month c. Pick up three times per week ............................................ $413.87 per month d. Pick up four times per week .............................................. $534.23 per month e. Pick up five times per week ............................................... $656.15 per month f. Pick up six times per week ................................................ $778.06 per month g. Non-contracted 3.0 cubic-yard pickup ............................... $72.71 h. Compacted 3.0 cubic-yard pickup ..................................... $336.99 Option C: One 4.0 Cubic-Yard Discard Bin a. Pick up one time per week ................................................ $185.89 per month b. Pick up two times per week ............................................... $325.18 per month c. Pick up three times per week ............................................ $464.58 per month d. Pick up four times per week .............................................. $603.91 per month e. Pick up five times per week ............................................... $743.24 per month f. Pick up six times per week ................................................ $882.64 per month g. Non-contracted 4.0 cubic-yard pickup ............................... $81.34 h. Compacted 4.0 cubic-yard pickup ..................................... $371.78 347 RECYCLING/COMPOSTING BIN RATES Option A: One 1.5 Cubic-Yard Recycling or Composting Bin a. Pick up one time per week ................................................ $82.58 per month b. Pick up two times per week ............................................... $165.23 per month c. Pick up three times per week ............................................ $247.78 per month d. Pick up four times per week .............................................. $330.39 per month e. Pick up five times per week ............................................... $412.97 per month f. Pick up six times per week ................................................ $495.60 per month g. Non-contracted 1.5 cubic-yard pickup ............................... $56.87 Option B: One 3.0 Cubic-Yard Recycling or Compost Bin a. Pick up one time per week ................................................ $113.75 per month b. Pick up two times per week ............................................... $227.37 per month c. Pick up three times per week ............................................ $341.21 per month d. Pick up four times per week .............................................. $454.81 per month e. Pick up five times per week ............................................... $568.65 per month f. Pick up six times per week ................................................ $682.36 per month g. Non-contracted 3.0 cubic-yard pickup ............................... $79.20 Option C: One 4.0 Cubic-Yard Recycling or Compost Bin a. Pick up one time per week ................................................ $140.17 per month b. Pick up two times per week ............................................... $280.40 per month c. Pick up three times per week ............................................ $420.59 per month d. Pick up four times per week .............................................. $560.84 per month e. Pick up five times per week ............................................... $701.00 per month f. Pick up six times per week ................................................ $841.25 per month g. Non-contracted 4.0 cubic-yard pickup ............................... $97.33 TEMPORARY BINS/ROLL-OFF DROP BOXES Temporary 3.0 Cubic-Yard Bin ............................................... $160.42 Redelivery and Reinstatement ................................................ $31.29 Roll-Off Disposal Bin .............................................................. $231.24 (Plus Landfill/Recycling Fee) Roll-Off Recycling Bin ............................................................. $231.24 (Market Value Negotiable) Roll-Off Compactor ................................................................. $462.48 (Plus Landfill/Recycling Fee) Roll-Off Recycling Compactor ................................................ $462.48 (Market Value Negotiable) 348 MISCELLANEOUS SERVICES A. Scout Service .................................................................... Case by Case B. Special Bin Lids (Locking/CBL) (one-time fee) .................. $35.35 C. Deodorizing/Replacing Bin (1x per calendar year) ............ No Charge D. Additional Deodorizing/Replacing Bin ............................... $35.35 E. Charge for Returned Checks ............................................. $17.68 F. Charge for Delinquent Payments ...................................... $5.89 G. Credit Card Convenience Fee (by Phone) ........................ $5.89 H. Extra Pick Up .................................................................... $3.56 per bag $5.92 per cart I. Extra Collection on Non-Scheduled Pick Up Day .............. $29.64 J. Residential Cart Re-Delivery Fee ...................................... $31.29 K. Temporary Roll-Off Extra Day Fee .................................... $11.86 per day (post 7 days, trash only) L. Temporary 3.0 Cubic-Yard Bin Rate ................................. $11.86 per day (post 7 days, trash only) M. Permanent Customer Roll-Off Extra Day Fee ................... $11.90 per day (post 30 days, trash only) N. Solid Waste Bin Locking/Unlocking Fee ............................ $23.81 per month O. Overage Fee ..................................................................... $10.00 Contamination Fee $100.00 349 EXHIBIT 2 CITY FACILITIES This Exhibit 2 may be amended by the City pursuant to Section 3.5.1 of this Agreement. Location Bins Frequency of Pickup Moorpark Civic Center 799 Moorpark Avenue 1 – Trash (3.0) 2 – Recyclables (3.0) 3x per Week 2x per Week Moorpark City Library – Sand Bags 699 Moorpark Avenue (Across from Post Office) 1 – Roll-off (10) On Call Ruben Castro Human Services Center 612 Spring Road 1 – Trash (3.0) 1 – Recyclables (3.0) 3 – Food Waste (64) 1x per Week 1x per Week 1x per Week Moorpark Public Services Facility 627 Fitch Avenue Dirt Lot in Back of Facility 1 – Trash (40) 1 – Recyclables (3.0) 1 – Yard Waste (40) 1 – Concrete (10) 1x per Week 1x per Week 1x per Week On Call Moorpark Chamber of Commerce Building 18 High Street 1 – Trash (3.0) 1 – Recyclables (3.0) 1x per Week 1x per Week Arroyo Vista Recreation Center 4550 Tierra Rejada Road Lot A Trash Enclosure 2 – Trash (3.0) 1 – Recyclables (3.0) 5x per Week 4x per Week Arroyo Vista Community Park 4550 Tierra Rejada Road 1 – Trash (3.0) 2 –Recyclables (3.0) 2x per Week 1x per Week Moorpark Police Services Center 610 Spring Road 1 – Trash (3.0) 1 – Recyclables (3.0) 3x per Week 2x per Week High Street Arts Center 33 High Street 1 – Trash (64) 1 – Recyclables (64) 1x per Week 1x per Week High Street Arts Center 45 High Street 1 – Trash (3.0) 1 – Recyclables (1.5) 1x per Week 1x per Week 350 Location Bins Frequency of Pickup Campus Park 6400 Harvard Street 1 – Trash (3.0) 3x per Week Mammoth Highlands Park 7000 Elk Run Loop 1 – Trash (3.0) 1x per Week Mountain Meadows Park 4350 Mountain Meadows Drive 1 – Trash (3.0) 3x per Week Peach Hill Park 13200 Peach Hill Road 1 – Trash (3.0) 3x per Week Poindexter Park 500 Poiondexter Avenue 1 – Trash (3.0) 2x per Week Tierra Rejada Park 11900 Mountain Trail Street 1 – Trash (3.0) 2x per Week 351 EXHIBIT 3 STREET SWEEPING SPECIFICATIONS At no additional cost and expense to City, Company shall provide street sweeping in accordance with these specifications. 1.1 Street Sweeping Service Generally. A. Location. Company is responsible for sweeping all City streets within the corporate limits of the City of Moorpark Franchise Area; State Highways (portions of Los Angeles Avenue, Moorpark Avenue, and Walnut Canyon Road, which comprise State Routes 23 and 118); those City Facilities identified in Section 1.1.E below, and private residential streets described in Section 1.1.E below, where an agreement is in place for Company to provide sweeping. City shall forward the full amount of any reimbursement from the State of California for sweeping State Highways to Company. Company shall provide City with required documentation to meet State reimbursement requirements. B. Option to Sweep State Highways. At the City’s sole discretion, City may elect to not have Company sweep California State Highways. City shall give Company written notice at least 30 days’ advance notice if City elects to exercise this option. If City elects to exercise this option, then City shall not forward the full amount of any reimbursement from the State of California for such services to Company. C. Minimal Impact. Sweeping is to be performed at times that provide the best results with minimal impact to residents and commercial businesses, flow of vehicular traffic, and the public in general. D. National Pollutant Discharge Elimination System (“NPDES”). Sweeping shall be done in a manner to ensure compliance with all NPDES mandates. E. Route. Company shall develop a route schedule and map that best accomplishes the above criteria according to the following requirements for sweeping frequency: (1) The following streets shall be swept at the following frequency: a. All public streets, at the same intervals as are currently in effect. Residential and commercial/industrial streets are swept twice per month. Arterial streets are swept weekly. Any changes to the current schedule must be approved by City before taking effect. b. Within 60 days of the Effective Date of this Agreement, Company shall make an offer to the owners (typically a homeowners’ association) to sweep private residential streets having a curb and gutter once per month at no cost to City or 352 the homeowners’ associations. Agreements to provide such sweeping services shall be between Company and individual homeowners’ associations; and Company shall not unreasonably withhold, delay, or otherwise burden the creation of such an agreement for sweeping private streets. The Parties shall jointly develop a standard agreement template between Company and a homeowners' association to facilitate the creation of such agreements. If a homeowners’ association does not accept the standard agreement, then Company shall not be required to sweep the homeowners’ association’s private streets. c. Within 30 days of receiving a written notice from City that a new homeowners’ association within the franchise area is becoming responsible for street sweeping, Company shall make an offer to sweep private residential streets as described in subsection (b), above. d. If a homeowners’ association opts to utilize Company’s street sweeping services pursuant to this Section, Company shall begin providing the service within 30 days of execution of an agreement to provide such services, unless otherwise specified in the agreement. e. Nothing in this Section precludes City from notifying a homeowners’ association who is not utilizing Company’s street sweeping services pursuant to this Section that such service is available. (2) The following City parking lots shall be swept (locations and frequency): a. First Friday of each month: i. Arroyo Vista Community Park (Countrywood Drive), 6:00 a.m. ii. Tierra Rejada Park (Mountain Trail Street and Mountain Meadows Drive), 7:00 a.m. iii. Mountain Meadows Park (Mountain Meadows Drive), 8:30 a.m. iv. Peach Hill Park (Peach Hill Road), 9:30 a.m. v. Country Trail Park (Mountain Trail Street), 10:00 a.m. b. Third Friday of each month: 353 i. Monte Vista Nature Park (Spring Road), 5:00 a.m. ii. Villa Campesina Park (Leta Yancy Road), 6:00 a.m. iii. College View Park (College View Avenue), 7:00 a.m. iv. Poindexter Park (Poindexter Avenue), 8:00 a.m. v. Mammoth Highlands Park (Elk Run Loop), 9:00 a.m. vi. Miller Park (Miller Parkway), 10:00 a.m. c. First Saturday of each month: i. Metrolink Station North Lot (High Street) ii. Metrolink Station South Lot (Moorpark Avenue) iii. Civic Center (Moorpark Avenue) iv. Reuben Castro Center (Spring Road) v. U.S. Post Office (High Street) vi. Moorpark Public Services Facility (Fitch Avenue) d. The list of City Facilities to receive sweeping services pursuant to this Agreement may be changed by City, in its sole discretion, as City constructs, demolishes, acquires, or disposes of City Facilities or as operational requirements necessitate changes to the scheduling. e. Additional hours for unscheduled or infrequent events using banked hours described in Section 1.8. F. Coordination with Solid Waste Collection. Company must coordinate street sweeping routes with residential Solid Waste collection routes so new streets shall be swept the following business day after Solid Waste collection. Street sweeping shall not be on the same day as Solid Waste collection except in emergency situations. G. Sweeping Hours of Operation. At no time shall sweeping be conducted before 7:00 a.m. or after 7:00 p.m. weekdays or anytime on the weekends in residential areas without the written approval of the City Manager. Sweeping of arterial streets must take place between 9:00 a.m. and 3:00 p.m. to avoid conflict during peak rush hour traffic. H. Holiday Adjustments. Company may adjust the sweeping schedule to reflect changes in route due to holidays which result in changes to Solid Waste collection schedules or days off for street sweeping staff. Company will notify the City Manager, in writing, of potential changes to the schedule due to Holidays at least 30 days in advance 354 and receive prior approval for any changes to sweeping frequencies as noted in Section 3.7.1 of this Agreement due to Holiday schedule adjustments. When the collection day is the same as the street sweeping day due to a Holiday schedule, the containers will need to be relocated by the Company (e.g., up behind curb) so the sweeper can sweep. I. Transitional Assistance. For the first 90 days of this Agreement, City will designate a City Field Representative (Street Maintenance Supervisor) to work with Company’s staff in the field to help ensure service meets City’s minimum standards and to address issues that arise as the result of the transition of services to Company. 1.2 Promotion and Outreach. A. General. With approval of City staff, Company shall provide promotional materials as required to publicize street sweeping operations in the community. B. Notification of Route Changes. Company shall notify all residents and businesses along routes of changes to sweeping schedules, delivered at least one month in advance to Solid Waste Customers. Company will develop promotional materials and media suitable for inclusion on City’s website to include sweeping schedule route maps and contact information with appropriate links and/or and e-mail addresses. C. If signage needs to be updated, the Party initiating the change shall be responsible for the cost of updating the signage. If Company is responsible for the cost, the new signs will be purchased and installed by City and billed to Company. The change cannot occur until the new signs are approved, delivered and installed. 1.3 Equipment. A. Vehicle Types. Company is required to use low-emission or alternative fueled, state-of-the-art, regenerative air, mechanical broom sweepers that are certified to meet all State and Federal EPA and NPDES compliance mandates. Sweepers shall be equipped with operational strobe and a back-up alarm and shall conform to all applicable safety requirements. All sweeper vehicles cannot exceed nine years in age and must be overhauled at the end of year five. The average age of the sweeping fleet cannot exceed seven years. Company will maintain vehicles in good operating condition at all times. B. GPS. All vehicles serving the franchise area are to be equipped with GPS tracking devices. Company shall furnish to City at no additional cost or expense any software and equipment necessary for City to track the location of sweeping vehicles in real time and to generate reports as needed. C. Storage. Vehicles, when not in service, will be stored at a facility that has been approved in writing by the City Manager. At no time will vehicles be stored, maintained or repaired in areas not appropriately zoned for that use. D. Vehicle Maintenance. Equipment shall be maintained in clean appearance and clearly identify Company or its street sweeping subcontractor. All related vehicle equipment shall be maintained in good mechanical condition. Brushes 355 and brooms shall be replaced at regular intervals. Equipment is subject to inspection by City at any time. E. Available Vehicles. Company shall maintain or have access to equipment sufficient to meet all obligations under this Agreement. 1.4 Sweeping Methods. A. General. Company shall make as many passes as are necessary to remove debris including all litter, sand, dirt, rocks, gravel, vegetation, and other sweepable debris from the streets and parking areas during sweeping operations. If City determines that street sweeping was completed unsatisfactorily, City may require Company to re-sweep an area. City has up to 24 hours to notify Company of a re-sweep requirement. Sweeping shall be accomplished on the outer edge and along any median (and bullnoses), with the flow of traffic. B. Permitted Operations. Company will operate equipment within manufacturer guidelines subject to the quality limits. C. Noise Limits. All equipment to be operated in compliance with all applicable noise ordinances. All sweeping shall be conducted as quietly as possible and shall conform to applicable federal, state, county, and City noise level regulations as they now exist or may be amended in the future. City may conduct random checks of noise emission levels to ensure compliance. D. Water Usage. Adequate water shall be used at all times to maximize dust control. Company shall not discharge liquid waste from sweeper units onto City streets or into the storm drain system. E. Unsweepable Debris. Unsweepable items that impede sweeping, such as palm fronds, rocks, and other debris, shall be removed from the sweeping path and properly disposed of by the operator. F. Parked Vehicles. Company shall not be responsible for areas missed due to parked vehicles or other personal property blocking sweeping paths. 1.5 Staff. A. General. All staff associated with sweeping operations will be uniformed and have the ability to contact a supervisor from the vehicle. All vehicle operators shall be appropriately licensed to operate sweeping vehicles on public streets and shall obey all applicable traffic laws. B. Reserves. Adequate reserve staff shall exist to meet all obligations under this Agreement. C. Additional Staff. One staff person shall be assigned as needed to pick-up large debris that impedes sweeper operations. 356 D. Contact Information. City shall be provided with phone number to contact the sweeping supervisor 24 hours per day, seven days per week. E. Training. All staff shall be trained to recognize illicit discharges and stormwater pollution sources. All staff training will be documented and available for review by the City Manager upon request. F. Communications. Company shall maintain direct communications with all sweeping equipment and staff in the field. Each sweeper operator shall have the ability to communicate verbal information immediately to their supervisor, City staff, police and fire personnel, and for the reporting of pollutant discharge observations. 1.6 Debris. A. General. Company is responsible for the disposal of all debris collected in accordance with the terms of this Agreement. B. Debris Disposal Location. If Company disposes of street sweeping debris at a location other than the Simi Valley Landfill and Recycling Center, Company shall notify City in writing before switching locations. C. Diversion. Company shall use reasonable efforts to divert sweeping debris collected by Company from landfill disposal. Diversion and disposal shall meet AB 939 waste diversion requirements and all other applicable regulations. All recyclable materials shall be separated from general waste. Any waste identified as hazardous or potentially hazardous shall be disposed of in compliance with all Applicable Laws. 1.7 Water Usage. Company is responsible for all water usage and associated costs and coordination with individual water purveyors to obtain hydrant meters. Company shall operate in accordance with all applicable City and area water agencies’ water conservation program requirements. Company shall report the volume of water utilized (in hundred cubic feet) from hydrants within the City water system to the City Manager, if requested by City. 1.8 Credit Hours. A. General. Company shall provide credit hours for those hours of sweeping not performed due to inclement weather. Credit hours shall be “banked” and available for use by City for specific sweeping projects outside the scope of the established routes and route schedules. Any unused portion of the credit hours shall “roll over” at the end of each annual period and will be applied to subsequent years. 357 EXHIBIT 4 FORM OF PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS, City of Moorpark, California, a municipal corporation (“City”) has awarded to USA Waste of California, Inc., a Waste Management company (“Principal”), an exclusive franchise for the collection, processing, and disposal of residential solid waste generated within City; and WHEREAS, the exclusive franchise, identified as “Franchise Agreement for Providing Residential and Commercial Solid Waste Services” is incorporated by this reference; and WHEREAS, the Principal is required under the terms of the exclusive franchise to furnish a bond for its faithful performance; NOW, THEREFORE, we, Principal and ________________________, as Surety, are held and firmly bound unto City in the penal sum of Two Hundred Thousand Dollars ($200,000.00), lawful money of the United States, for the payment of which we bind ourselves, our heirs, successors, executors, administrators, jointly and severally, firmly by these presents. The condition of this obligation is such that the obligation will become null and void if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, will in all things stand to, abide by, well and truly keep and perform the covenants, conditions, and provisions in the exclusive franchise and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to his or their true intent and meaning, and will indemnify and save harmless City, its officers, agents, and employees, as therein stipulated; otherwise, this obligation will be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees will be included, including reasonable attorneys’ fees, incurred by City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered. The Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the exclusive franchise, the work to be performed thereunder, or the specifications accompanying the exclusive franchise will in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration, or addition to the terms of the exclusive franchise, the work, or the specifications. 358 IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety on ______________________, 2018. (Type name of Principal) (Type address of Principal) By: (Signature of authorized officer) (Title of officer) (Type name of Surety) (Type address of Surety) By: (Signature of authorized officer) (Title of officer) APPROVED AS TO FORM: CITY ATTORNEY Note: This Bond must be executed in duplicate and dated, all signatures must be notarized, and evidence of the authority of any person signing as attorney-in-fact must be attached. DATE OF BOND MUST NOT BE BEFORE DATE OF CONTRACT. Surety companies executing Bonds must appear on the Treasury Department’s most current list (Circular 570 as amended) and be authorized to transact business in the State where the project is located. 359 EXHIBIT 5 FORM OF CORPORATE GUARANTY THIS GUARANTY (“Guaranty”) is given as of the ____ day of __________ 2018, and is made with reference to the following facts and circumstances: A. USA Waste of California, Inc. (“Owner”) is a corporation organized under the laws of the State of Delaware. Waste Management, Inc. (“Guarantor”) is a corporation organized under the laws of the State of Delaware. Owner is an indirect wholly-owned subsidiary of Guarantor. B. Owner and the City of Moorpark (“City”) have negotiated an Agreement entitled Franchise Agreement for Providing Residential and Commercial Solid Waste Services (“Agreement”). C. It is a requirement of the Agreement that Guarantor guarantee Owner’s performance of the Agreement. D. Guarantor is providing this Guaranty and other considerations to induce City to enter into the Agreement. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Agreement. Guarantor irrevocably and unconditionally guarantees to City the complete and timely performance by Owner of each and every term of the Agreement that Owner is required to perform. If Owner fails to perform any term of the Agreement, Guarantor will promptly and fully perform it in the place of Owner, or cause it to be performed. Guarantor also guarantees all obligations to City, including, without limitation, payment to City of any damages, costs, or expenses that might become recoverable by City from Owner due to its breach of the Agreement. 2. Guarantor’s Obligations are Absolute. The obligations of Guarantor under this Guaranty are continuing, unconditional, and unlimited, and, with respect to any payment obligation of Owner under the Agreement, constitute a guarantee of payment and not of collection, and are not conditional upon the validity or enforceability of the Agreement. In any action brought against Guarantor to enforce, or for damages or breach of, its obligations under this Guaranty, Guarantor will be entitled to all defenses, if any, that would be available to Owner in an action to enforce, or for damages for breach of, the Agreement (other than discharge of, or stay of proceedings to enforce, obligations under the Agreement under bankruptcy law). 3. Waivers. Guarantor has no right to terminate this Guaranty, or to be released, relieved, exonerated, or discharged from its obligations under this Guaranty for any reason, including, without limitation: (a) the insolvency, bankruptcy, reorganization, or cessation of existence of Owner; (b) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from 360 the actual or purported termination of the Agreement; (c) any waiver with respect to any of the obligations of the Agreement guaranteed hereunder, or the impairment or suspension of any of City’s rights or remedies against Owner; or (d) any merger or consolidation of Owner with any other entity, or any sale, lease, or transfer of any or all the assets of Owner. Without limiting the generality of the foregoing, Guarantor waives the rights and benefits under California Civil Code Section 2819. Guarantor waives all benefits and defenses under California Civil Code Sections 2846, 2849, and 2850, including, without limitation, the right to require City to (a) proceed against Owner; (b) proceed against or exhaust any security or collateral City may now or later hold; or (c) pursue any other right or remedy for Guarantor’s benefit. Guarantor agrees that City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Owner, or any other guarantor or pledgor, and without proceeding against or exhausting any security or collateral City may now or later hold. City may, in its sole discretion, exercise all rights and remedies available to it against Owner, or any other guarantor or pledgor, without impairing City’s rights and remedies in enforcing this Guaranty. Guarantor expressly waives diligence, presentment, demand for payment or performance, protest, and all notices whatsoever, including, but not limited to, notices of non-payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed under this Guaranty are paid or performed, Guarantor’s obligations will continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from City as a preference, fraudulent transfer, or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Owner prior to such avoidance or recovery; and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but will continue in full force and effect until all of the terms of the Agreement have been fully performed or otherwise discharged. Guarantor will remain fully responsible under this Guaranty without regard to the acceptance by City of any performance bond or other collateral to assure the performance of Owner’s obligations under the Agreement. Guarantor will not be released from its obligations under this Guaranty so long as there is any claim by City against Owner arising out of the Agreement based on Owner’s failure to perform, which failure has not been settled or discharged. 5. No Waivers. No delay by City in exercising any rights under this Guaranty, nor City’s failure to exercise those rights, will operate as a waiver of those rights. No notice to or demand on Guarantor will be a waiver of any obligation of Guarantor, or right of City, to take other or further action without notice or demand. No modification or waiver of any provisions of this Guaranty will be effective unless it is in writing and signed by City and by Guarantor, nor will any waiver be effective except in the specific instance or matter for which it is given. 361 6. Attorneys’ Fees. If Guarantor breaches its obligations under this Guaranty Guarantor will pay reasonable attorneys’ fees, and all other reasonable costs and expenses that are incurred by City in enforcing this Guaranty, or that are incurred in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties under this Guaranty. 7. Governing Law: Jurisdiction. This Guaranty is and will be deemed to be a contract entered into under the laws of the State of California and will be governed and construed in accordance with the laws of California without regard to its conflicts of laws rules for all purposes including, but not limited to, matters of construction, validity, and performance. Guarantor agrees that any action brought by City to enforce this Guaranty may be brought in any court of the State of California, and Guarantor consents to personal jurisdiction over it by those courts solely for the purpose of any action brought by City to enforce this Guaranty. Guarantor appoints the following person as its agent for service of process in California: The Corporation Trust Company 1209 Orange Street Wilmington, DE 19801 With a copy by certified mail to: Waste Management, Inc. 1001 Fannin Street Houston, TX 77002 Attn: General Counsel GCLegal@wm.com 8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will not affect the remaining portions of this Guaranty, which portions are severable and will continue in full force and effect. 9. Binding On Successors. This Guaranty inures to the benefit of City and its successors and shall be binding upon Guarantor and its successors, including any transferee of substantially all of Guarantor’s assets, and its shareholders in the event of Guarantor’s dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that the execution of this Guaranty has been authorized by all necessary action under its articles of incorporation and by-laws, and that the person signing this Guaranty on its behalf has the authority to do so. 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: 362 To City: City Manager Moorpark City Hall 799 Moorpark Avenue Moorpark, CA 93021 with a copy to the City Attorney at the same address. To the Guarantor: Waste Management, Inc. 1001 Fannin Street Houston, TX 77002 Attn: General Counsel GCLegal@wm.com IN WITNESS WHEREOF, THE FOREGOING IS EXECUTED AS OF THE DATE FIRST WRITTEN ABOVE. WASTE MANAGEMENT, INC. a Delaware corporation By: Authorized Representative Title: Date: By: Authorized Representative Title: Date: SIGNATURES TO BE NOTARIZED 363 EXHIBIT 6 DEPICTION OF 125 ACRE AND 131 ACRE SITES 364 Comparison of Current and Proposed RatesCurrent Moorpark RateProposed Rate(Phased)Proposed Rate(Not Phased)Dollar Increase(Not Phased)Percent Increase(Not Phased)RESIDENTIAL RATES (Trash‐Recyclables‐Yard Waste Sizes, Gallons)Regular Full Service (64‐64‐96)$26.36 $28.50 $30.63 $4.27 16.21%*Senior Service Rate (64‐64‐96)$26.36 $26.00 $25.64‐$0.72‐2.74%32‐gallon Service Rate (32‐64‐64)$19.45$22.55$25.64$6.1931.83%*32‐gallon Senior Service Rate (32‐64‐64)$19.45$20.46$21.46$2.0110.33%Limited/No Yard Trimmings (32‐64‐0)$18.27$20.04$21.80$3.5319.34%*Senior Limited/No Yard Trimmings (32‐64‐0)$18.27$19.87$21.46$3.1917.46%Upgrade Trash Cart from 32 to 64 (Service Level A or E)$3.00 (Same as Not Phased) $3.35$0.3511.70%Upgrade Trash Cart from 64 to 96 (Service Level A or E)$3.00 (Same as Not Phased) $3.35$0.3511.70%Additional 64‐Gallon Trash Cart (Service Level A)$5.00 (Same as Not Phased) $5.59$0.5911.70%Additional 96‐Gallon Trash Cart (Service Level A)$8.00 (Same as Not Phased) $8.94$0.9411.70%Additional 96‐Gallon Yard Cart (Service Level A)$3.00 (Same as Not Phased) $3.35$0.3511.70%Upgrade Recycling Cart from 64 to 96$1.00 (Same as Not Phased) $1.12$0.1211.70%Upgrade Yard from 64 to 96$2.00 (Same as Not Phased) $2.23$0.2311.70%Additional 64‐Gallon Recycling Cart$2.50 (Same as Not Phased) $2.79$0.2911.70%Additional 96‐Gallon Recycling Cart$3.00 (Same as Not Phased) $3.35$0.3511.70%Recycle cart change from 64 to 32 ‐ no rate change$0.00 (Same as Not Phased) $0.00n/an/aCustomer Service Level Changes$5.00 (Same as Not Phased) $5.85$0.8517.02%Move In/Move Out$15.00 (Same as Not Phased) $18.78$3.7825.23%Additional Bulky Item Pickup$25.00 (Same as Not Phased) $28.22$3.2212.88%COMMERCIAL RATESDiscard Bin Rates1.5‐Yd Trash Bin, 1x/week$122.08 $136.57 $151.07 $28.99 23.75%1.5‐Yd Trash Bin, 2x/week$213.62 $234.60 $255.59 $41.97 19.65%1.5‐Yd Trash Bin, 3x/week$305.21 $332.65 $360.10 $54.89 17.98%1.5‐Yd Trash Bin, 4x/week$396.80 $430.68 $464.55 $67.75 17.07%Non‐Contracted 1.5‐Yd Pickup$46.48 (Same as Not Phased) $64.00 $17.5237.69%Compacted 1.5‐Yd. Pickup ‐ 2X Weekly Rate$244.16 (Same as Not Phased) $302.14 $57.9823.75%* Denotes New Fee365 Comparison of Current and Proposed RatesCurrent Moorpark RateProposed Rate(Phased)Proposed Rate(Not Phased)Dollar Increase(Not Phased)Percent Increase(Not Phased)COMMERCIAL RATES (Continued)3.0‐Yd Trash Bin, 1x/week$142.02 $155.26 $168.50 $26.48 18.64%3.0‐Yd Trash Bin, 2x/week$253.54 $271.98 $290.42 $36.88 14.55%3.0‐Yd Trash Bin, 3x/week$365.06 $389.46 $413.87 $48.81 13.37%3.0‐Yd Trash Bin, 4x/week$476.57 $505.40 $534.23 $57.66 12.10%3.0‐Yd Trash Bin, 5x/week$588.06 $622.11 $656.15 $68.09 11.58%3.0‐Yd Trash Bin, 6x/week$699.56 $738.81 $778.06 $78.50 11.22%Non‐Contracted 3.0‐Yd Pickup$54.98 (Same as Not Phased) $72.71 $17.7332.24%Compacted 3.0‐Yd Pickup ‐ 2X Weekly Rate$284.04 (Same as Not Phased) $336.99 $52.9518.64%4.0‐Yd Trash Bin, 1x/week$160.10$173.00$185.89$25.7916.11%4.0‐Yd Trash Bin, 2x/week$289.67$307.42$325.18 $35.5112.26%4.0‐Yd Trash Bin, 3x/week$419.25$441.92$464.58 $45.3310.81%4.0‐Yd Trash Bin, 4x/week$548.86$576.39$603.91 $55.0510.03%4.0‐Yd Trash Bin, 5x/week$678.40$710.82$743.24 $64.849.56%4.0‐Yd Trash Bin, 6x/week$807.96$845.30$882.64 $74.689.24%Non‐Contracted 4.0‐Yd Pickup$63.56 (Same as Not Phased) $81.34 $17.7827.97%Compacted 4.0‐Yd Pickup ‐ 2X Weekly Rate$320.20 (Same as Not Phased) $371.78 $51.5816.11%Recycling Bin Rates1.5‐Yd Recycling/Yard Bin, 1x/week$58.64$70.61$82.58 $23.9440.83%1.5‐Yd Recycling/Yard Bin, 2x/week$117.33$141.28$165.23 $47.9040.83%1.5‐Yd Recycling/Yard Bin, 3x/week$175.96$211.87$247.78 $71.8240.82%1.5‐Yd Recycling/Yard Bin, 4x/week$234.63$282.51$330.39 $95.7640.81%1.5‐Yd Recycling/Yard Bin, 5x/week$293.31$353.14$412.97 $119.66 40.80%1.5‐Yd Recycling/Yard Bin, 6x/week$351.94$423.77$495.60 $143.66 40.82%Non‐Contracted 1.5‐Yd Pickup$19.20 (Same as Not Phased) $56.87 $37.67 196.18%* Denotes New Fee366 Comparison of Current and Proposed RatesCurrent Moorpark RateProposed Rate(Phased)Proposed Rate(Not Phased)Dollar Increase(Not Phased)Percent Increase(Not Phased)COMMERCIAL RATES (Continued)3.0‐Yd Recycling/Yard Bin, 1x/week$74.31$94.03$113.75 $39.4453.07%3.0‐Yd Recycling/Yard Bin, 2x/week$148.71$188.04$227.37 $78.6652.89%3.0‐Yd Recycling/Yard Bin, 3x/week$223.01$282.11$341.21 $118.20 53.00%3.0‐Yd Recycling/Yard Bin, 4x/week$297.38$376.09$454.81 $157.43 52.94%3.0‐Yd Recycling/Yard Bin, 5x/week$371.69$470.17$568.65 $196.96 52.99%3.0‐Yd Recycling/Yard Bin, 6x/week$446.07$564.22$682.36 $236.29 52.97%Non‐Contracted 3.0‐Yd Pickup$24.26 (Same as Not Phased) $79.20 $54.94 226.46%4.0‐Yd Recycling/Yard Bin, 1x/week$90.90$115.53$140.17 $49.2754.20%4.0‐Yd Recycling/Yard Bin, 2x/week$179.13$229.77$280.40 $101.27 56.54%4.0‐Yd Recycling/Yard Bin, 3x/week$289.69$355.14$420.59 $130.90 45.19%4.0‐Yd Recycling/Yard Bin, 4x/week$358.26$459.55$560.84 $202.58 56.54%4.0‐Yd Recycling/Yard Bin, 5x/week$447.89$574.45$701.00 $253.11 56.51%4.0‐Yd Recycling/Yard Bin, 6x/week$537.43$689.34$841.25 $303.82 56.53%Non‐Contracted 4.0‐Yd Pickup$29.64 (Same as Not Phased) $97.33 $67.69 228.38%Temporary Bins / Roll‐Off Drop BoxesTemporary 3.0‐Yard Bin$100.27 (Same as Not Phased) $160.42 $60.1559.98%Redelivery and Reinstatement$30.40 (Same as Not Phased) $31.29$0.892.94%Roll‐Off Trash Bin$191.95 (Same as Not Phased) $231.24 $39.2920.47%Roll‐Off Recycling Bin$191.95 (Same as Not Phased) $231.24 $39.2920.47%Roll‐Off Compactor$383.90 (Same as Not Phased) $462.48 $78.5820.47%Roll‐Off Recycling Compactor$383.90 (Same as Not Phased) $462.48 $78.5820.47%*Roll‐Off Trip Load/Relocation Feen/a (Same as Not Phased) $59.52n/an/a* Denotes New Fee367 Comparison of Current and Proposed RatesCurrent Moorpark RateProposed Rate(Phased)Proposed Rate(Not Phased)Dollar Increase(Not Phased)Percent Increase(Not Phased)ORGANICS COLLECTION*64‐Gal Cart, 1x/weekn/a (Same as Not Phased) $62.71n/an/a*64‐Gal Cart, 2x/weekn/a (Same as Not Phased) $125.42n/an/a*64‐Gal Cart, 3x/weekn/a (Same as Not Phased) $188.15n/an/a*64‐Gal Cart, 4x/weekn/a (Same as Not Phased) $250.86n/an/a*64‐Gal Cart, 5x/weekn/a (Same as Not Phased) $313.57n/an/aMISCELLANEOUS SERVICES*"Hard to Service Fee" ‐ vehicle usage raten/a n/a Case‐by‐Case n/an/a*"Hard to Service Fee" ‐ bin moving raten/an/aCase‐by‐Case n/an/aSpecial Bin Lids (Locking/CBL) one time fee$30.00 (Same as Not Phased) $35.35$5.3517.84%Deodorizing/Replacing Bin ‐ one free per year$0.00 (Same as Not Phased) $0.00$0.000.00%Additional Deodorizing/Replacing Bin$30.00 (Same as Not Phased) $35.35$5.3517.84%Returned Check$15.00 (Same as Not Phased) $17.68$2.6817.87%Delinquent Payments$5.00 (Same as Not Phased) $5.89$0.8917.72%Credit Card Convenience Fee (Phone)$5.00 (Same as Not Phased) $5.89$0.8917.72%Extra Bag Pickup/Scheduled Day$3.00 (Same as Not Phased) $3.56$0.5618.68%Extra Container Pick‐up/Scheduled Day$5.00 (Same as Not Phased) $5.92$0.9218.39%Extra Collection/Non‐Scheduled Day$25.00 (Same as Not Phased) $29.64$4.6418.56%Residential Cart Re‐Delivery Fee$15.00 (Same as Not Phased) $31.29 $16.29 108.63%Temporary Roll‐Off Extra Day Fee (after 7 days)$10.00 (Same as Not Phased) $11.86$1.8618.61%Long‐Term Bin Rental, per Day (after 7 days)$5.00 (Same as Not Phased) $11.86$6.86137.21%Permanent Customer Rolloff Extra Day Fee (post 30 days, trash $10.00 (Same as Not Phased) $11.90$1.9019.05%Solid Waste Bin Locking/Unlocking Fee, per month$20.00 (Same as Not Phased) $23.81$3.8119.05%*Overage Feen/a (Same as Not Phased) $10.00n/an/a*Contamination Feen/a (Same as Not Phased) $100.00n/an/a* Denotes New Fee368 RESOLUTION NO. 2018-____ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, RESCINDING, IN PART, RESOLUTION NO. 95-1169 AND UPDATING AB 939 FEES WHEREAS, it is appropriate for the City to establish fees relative to collection and management of solid waste collection and diversion; and WHEREAS, on June 6, 2018, the City Council granted an exclusive Solid Waste Franchise Agreement to USA Waste of California, Inc., for the collection, transportation, recycling, and disposal of solid waste within the City limits; and WHEREAS, the City Council declares its intention to minimize the increases in the maximum monthly solid waste rate increases for seniors (aged 62+) who request trash carts smaller than the City’s Regular Service standards; and WHEREAS, Section 1 of Resolution No. 95-1169 established a residential Senior Citizen Rate for AB 939 Fees of $1.20 per month, per account. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. Effective July 1, 2018, Section 1 of Resolution No. 95-1169 is repealed. SECTION 2. Effective July 1, 2018, the monthly residential AB 939 Fee shall be as follows: Single Family Service (Regular Service) $1.20 Senior Citizen Rate (Regular Service) $1.14 Single Family Service (32-Gallon Service) $1.14 Senior Citizen Rate (32-Gallon Service) $0.95 SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions. PASSED AND ADOPTED this 6th day of _____________, 2018. __________________________________ Janice S. Parvin, Mayor ATTEST: ___________________________________ Maureen Benson, City Clerk 369 . ' SUSTAINABILITY FEE MEMORANDUM OF UNDERSTANDING BETWEEN COUNTY OF VENTURA AND CITY OF MOORPARK This Sustainability Fee Memorandum of Understanding (MOU) is entered into by and between the County of Ventura (County) and the City of Moorpark (City) and shall become effective on the date last signed by the parties below. The County and City are collectively referred to herein as "parties" and each individually as "party." RECITALS WHEREAS, on July 19, 2011 , the County and Waste Management of California , Inc . (Waste Management) entered into an Addendum Agreement for a Sustainability Fee at the Simi Valley Landfill and Recycling Center (Landfill) pursuant to which Waste Management agreed to provide County with susta inability fee payments (Sustainability Fees) for certain solid waste and recovered materials received by the Landfill originating from outside the geographic boundaries of the County; and WHEREAS, County is willing to provide a portion of the anticipated Sustainability Fees to City to help fund City's proposed project to construct a sound wall along Los Angeles Avenue (SR 118) and to help acquire open space property or acquire conservation easements in the eastern portion of the City and in a portion of the City 's Area of Interest (collectively the "Designated Area,") as shown on Exhibit A-1 and described on Exhibit A-2 hereto ; and WHEREAS , the parties des ire to memorialize their mutual understanding of these matters in this MOU ; AGREEMENT NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: Section 1. The above recitals are incorporated by reference and made a part of this MOU. Section 2. On or before June 30 , 2015 , County agrees to pay City One M illion Five Hundred Thousand Dollars ($1,500 ,000 .00) (Funds) for the acquis it ion of open space and conservation easements on or bj:!fore September 30, 2017 , within the Designated Area , as provided below. A. City shall select the property to be acquired, subject to County 's express written consent which shall not be unreasonably withheld , which may consist of one or more parcels within the Designated Area . Both parties agree that matters related to water rights and oil and natural gas extraction and operations will be cons idered in selection of any property to be 370 acquired. B. The parties must agree to the purchase price prior to close of escrow for each parcel of property. By mutual agreement of the parties, purchase price may include a separate purchase of mineral rights for the property. Both parties agree to cooperate in accomplishing this task in an expeditious manner. C. In addition to the purchase price for the property or the price to acquire conservation easements, the City shall be entitled to expend the Funds for the City's acquisition costs in an amount not to exceed twenty percent (20%) of the purchase price of each parcel acquired or conservation easement acquired. Acquisition costs are limited to property appraisals, phase 1 and phase 2 environmental studies, CEQA compliance, engineering, legal and real estate services (title insurance, typical closing costs, escrow and commissions) (hereinafter, Acquisition Costs). D. Acquisition may be by fee title or in the form of a conservation easement. If acquisition is in fee title, fee ownership shall be held by City with a conservation easement granted to County pursuant to Section 2.E below. If acquisition is in the form of a conservation easement, such e.asement shall be consistent with Civil Code Section 815. 1 with separate easements granted to City and County . E. After each property is acquired and before City's transfer of any property to an Authorized Transferee pursuant to Section 2.F. below, City shall convey to County, and County shall immediately record in the official records of Ventura County, a permanent conservation easement as defined in Civil Code Section 815 .1 in a form approved by County and City for the purpose of ensuring the acquired property remains as permanent open space and in its then-natural condition. F. After each property is acquired or after each conservation easement is acquired , City, with the prior written consent of County which shall not be unreasonably withheld, may transfer fee title or City's conservation easement to another governmental entity or non-profit entity (Authorized Transferee) as permitted and provided by Civil Code Sections 815.2 (a) and 815.3 so long as the property remains subject to the County's conservation easement and is maintained as permanent open space with no development. G. Neither City nor any Authorized Transferee shall engage in any new oil or natural gas production from any property acquired pursuant to this Section 2 . H. After close of escrow of each property acquired or after the recordation of 2 371 each conservation easement pursuant to this Section 2, City shall, within forty-five (45) days, provide County with a full . accounting and supporting documentation of the purchase price and Acquisition Costs incurred by City (Accounting Date). I. Upon receipt, City agrees to immediately place the Funds in the County of Ventura Investment Pool until such time as all or a portion of said Funds are expended or repaid to the County pursuant to Section 2.J. below. lhe interest earned on the Funds may be used by City in the same manner as the Funds. J. Any Funds not expended by City for purchase prices and Acquisition Costs in accordance with this Section 2 , including any interest accrued on said Funds, shall be repaid to County on the earlier to occur of: (1) sixty (60) days after the Accounting Date following City's acquisition of the last parcel(s) of real property hereunder provided that said parcel(s) is/are acquired on or before September 30, 2017; or (2) October 15, 2017. K. County shall not be responsible for any costs or potential liabilities related to ownership and maintenance of any property acquired pursuant to this MOU, including but not limited to weed abatement, liability risk and insurance, property taxes, and all other fees , costs, liabilities (including but not limited to that arising from oil and gas operations) and assessments. Section 3. In addition to the Funds specified in Section 2 of this MOU, County agrees to contribute to City 's proposed sound wall project as provided below: A The City 's sound wall project shall be to construct a sound wall along any portion of the south side of Los Angeles Avenue (SR 118) between the current western City limits and 150 feet west of Maureen Lane. The sound wall shall be designed to serve as a noise barrier from Los Angeles Avenue traffic and be no less than eight feet (8') high from sidewalk grade. The City shall award a contract to construct the sound wall project no earlier than July 1, 2017, and no later than July 1, 2025. B. Within forty-five (45) days following City's filing of a notice of completion for the sound wall project, City shall provide County with a full accounting and supporting documentation of City's Sound Wall Project Costs as defined below. County shall remit payment to City within forty-five (45) days of County's receipt of said accounting and supporting documentation. County's payment shall not exceed one-half of the Sound Wall Project Costs up to a maximum amount of Five Hundred Thousand Dollars ($500,000 .00). C . Sound wall project costs toward which County will contribute pursuant to this MOU shall only consist of the following: amount of awarded 3 372 construction contract and any City-approved change orders thereto , CEQA compliance, engineering (conceptual design , project design , preparation of plans and specifications, preparation of legal description, contract adm inistration , and project inspection), assessment engineering if an assessment d istrict is proposed for the sound wall whether or not formed , permits , and other costs charged by other governmental entities for the project including but not limited to Caltrans and public utilities , utility relocations , landscap ing and irrigation installation (excluding ongoing maintenance), any items required by Caltrans encroachment permits, and legal services regarding project procurement (collectively, "Sound Wall Project Costs"). Sound Wall Project Costs shall not include any land acquisition-related expenses , fees or costs . Section 4. County , in its sole discretion , may suspend any or all of its obligations under this MOU upon thirty (30) days written notice to City if the validity of the Sustainability Fees is challenged in a legal action against County . County , in its sole discretion , may also term inate any or all of its obligations under this MOU upon thirty (30) days written notice to City if the Sustainability Fees are legally invalidated through judicial or leg islative action that is binding on County . County shall re imburse City for its eligible costs in acquiring property or conse rvation easements under Section 2 and its Sound Wall Project Costs .under Section 3 to the extent incurred by City prior to the effective date of MOU suspension. Except as provided herein , County shall have no other liability to C ity in the event County exercises its right to suspend and/or t erminate its obligations under th is MOU in accordance with this Section 4. Section 5 . Miscellaneous. A. Integrated Agreement. This MOU is an integrated agreement and constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements , communications , representations , or warranties , whether oral or written , by either party or any agent, officer, partner, employee , or representative of either pa rty. B. Amendments. This MOU may not be modified , altered , amended , or rescinded except by an instrument in writing, which is signed by both parties hereto. C . Severab ili ty. Should any part, term or provision of this MOU be declared or determ ined by any court to be illegal or inval id, the validity of the remain ing parts , terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this MOU. D. Construction. This MOU is the product of negotiation , drafting and preparation by and among the parties and their respective attorneys . The 4 373 parties expressly acknowledge and agree that this MOU shall not be deemed prepared or drafted by one party or another and its attorneys, and will be construed a'ccordingly. Any rule of construction to the effect that ambiguities are to be resolved against the drafting parties shall not apply in the interpretation of this MOU . E. Notices . All notices that are required to be delivered under this MOU in writing shall be personally delivered or sent by overnight mail, registered or certified mail , postage prepaid, or facsimile, as follows : To City : City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Attention : City Manager Fax : 805-529-8270 To County: County of Ventura 800 South Victoria Avenue #1940 V~ntura, California 93009 Attention: County Executive Office Fax : 805-658-4500 Such addresses may be changed from time to time by the addressee by serving notice as heretofore provided. Service of such notice or demand shall be deemed complete on the date of actual delivery as shown by the addressee 's registry or certification receipt or at the expiration of the third day after the date of mailing (whether or not actually received by the addressee), whichever is earlier in time. F. Governing Law. This MOU is made and entered into in the State of California and shall, in all respects, be interpreted, governed and enforced in accordance with the laws of the State of California applicable to contracts entered into and fully to be performed therein . G . Further Assurances . Each party shall from and after the date hereof execute , acknowledge and deliver such further instruments and perform such additional acts as any other party may reasonably request to effectuate the intent of this MOU. H. Third Party Beneficiaries. No term or provision of this MOU is intended to or shall be for the benefit of any person or entity not a party hereto , and no such other person or entity shall have any right or cause of action hereunder. I. Defense and Indemn ity . City agrees to indemnify, hold harmless and defend at its sole expense , with counsel reasonably acceptable to County , 5 374 any claims, actions, proceedings, demands, judgments, damages, fines and liabilities of whatever nature (Claims and Liabilities) against County and all of County's boards, agencies, departments, officers, employees, agents and volunteers (County Parties) arising from or related to this MOU including but not limited to the acquisition, ownership and maintenance of the open space property and implementation, design and construction of the proposed sound wall project, unless the Claims and Liabilities be caused by the sole negligence or willful misconduct of County Parties. County may, at its sole discretion, participate in the defense of any Claims and Liabilities at County's cost, but such participation shall not relieve City of its obligations under this section. . J. Budgeting. County's obligations to provide funding under this MOU are subject to County's annual budget process and the making of necessary budget appropriations in the fiscal year in which County would pay the obligations, and would receive the benefits of the projects, set forth in this MOU. The obligation of the County to provide funding under this MOU does not constitute an obligation for which County is obligated to levy or pledge any form of taxation or for which County has levied or pledged any form of taxation. Nor do the obligations of County to provide funds under th is MOU constitute an indebtedness of County within the meaning of any constitutional debt limitation or restriction. County shall use reasonable efforts to make such budget decisions and appropriation of funds. Except for the $1,500,000 referenced in Section 2 above, in the event such budget decisions and appropriations do not occur, County may, upon five (5) days written notice to City, terminate this MOU as to that obligation and project. IN WITNESS WHEREOF, the undersigned each has executed this MOU as of the date written below. COUNTY OF VENTURA /~ .. a.. By :~-~-'---~------ CITY OF MOORPARK Date: I 1-1 'I-~{)/ 'f Attachments : Exhibit A-1 and A-2 6 . . 375 \/i a,l le y Thousand City of :M.oorpar~ Legend L- -1 Moorpark Area oflnlerest _ .... Camari llo Area of Interest E:J Fillmor'l Area of Interest [=:! Las Posas Area of Interest .. Plru Area of Interest IT] Simi Valley Area of Interest Thousand Oaks Area of Interest ---Freeway _ ____,.___. Railroad Arroyo Simi Parcels c ..:-J City of Moorpark .. Potential Open Space Designated Area ••m:=:::J Miles 0.4 0 .8 Sources: City or Moorplf1<, Mardi 2014 County of Ventura GIS data . Ma rch 201-i County of Ventere RMA dale Prepared: Marcil 2014 Nole: A capy of the City's Planning Area F1gure is available for download at http://www.mo0fll•r1<oa .gov or for purchase at Moorpark City Hall. 799 Moorpar1<Avenue, Mo0fllar1t , CA9302t . Designated Area in Moorpark and its Area of Interest Updated August 2014 r 376 t C-1 I , .. f Exhibit A-2 Parcels Included in Designated Area in Moorpark and its Area of Interest (Listed by Assessor Parcel Number) 500-0-120-065 500-0-17 0-135 500-0-180-125 ; -135 ; -145 ; -155 ; -165; -175 ; -185 ; -195 ; -205 ; -215 ; -225 ; -235 ; -255 500-0-281-035 ; -045 ; -165 ; -185 ; -195 ; -205 ; -215 ; -465 ; -475 ; -535 ; -545 500-0-292-015 ; -035 ; -135 ; -195 ; -215 ; -225 6 15-0-010-045 615-0-110-165 ; -175 ; -205 ; -215 615-0-150-185 377