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RPVCCA_SR_2010_06_01_08_Universal_Waste_Systems_License_AgreementCITY OF RANCHO PALOS VERDES MEMORANDUM TO: FROM: DATE: SUBJECT: REVIEWED: Project Manager: HONORABLE MAYOR &CITY COUNCIL MEMBER RAY HOLLAND,DIRECTOR OF PUBLIC WO JUNE 1,2010 LICENSE AGREEMENT WITH UNIVERSAL WASTE SYSTEMS,INC. CAROLYN LEHR,CITY MANAGER ofL,. Lauren Ramezani,Sr.Administrative Analyst IJl-- RECOMMENDATION Authorize the Mayor and City Clerk to execute the attached license Agreement with Universal Waste Systems,Inc.for the temporary use of a portion of the City Yard facility. BACKGROUND AND DISCUSSION On May 5,2009,City Council approved a negotiated agreement with Universal Waste Systems,Inc.(UWS)for exclusive residential solid waste collection for Service Area 2. UWS has serviced that area since 2004.In mid June 2010,new trash,recycling and green waste carts (for curbside automated collection)and cans (for manual backyard collection) will be delivered to UWS's single-family homes.In preparation of the deliveries,UWS requested the temporary use of a portion (approximately 1/5 acre)of the City Yard facility for the storage of approximately 3,000 containers as they are received from the manufacturer,prior to their delivery to customers in the City.Having this local storage and staging area will assist UWS make the transition in a more organized fashion.On May 18, 2010,City Council approved the use of another section of the City Yard by EDCO Disposal Corporation.There will be no conflict in the areas used by these two haulers. The attached license agreement has been prepared by the City Attorney's office and authorizes UWS to use the license area for the temporary storage of new trash carts,subject to the terms and conditions of this agreement.UWS has also provided the City with the required additional insured endorsements. FISCAL IMPACT There is no fiscal impact. W:\LAUREN\STAFFRPTIREFUSE\2010\UWS licensing agreement.doc 5/24/201 0 8-1 LICENSE AGREEMENT BETWEEN THE CITY OF RANCHO PALOS VERDES AND EDCO DISPOSAL CORPORATION THIS LICENSE AGREEMENT (this "Agreement")is made and entered into on this __day of June,2010,by and between THE CITY OF RANCHO PALOS VERDES,a public body,corporate and public ("Licensor"),and UNIVERSAL WASTE SYSTEMS,INC.,a California Corporation ("Licensee"),collectively the "Parties." RECITALS A.Licensor is the owner of real property located in the City of Rancho Palos Verdes, California,at 30938 Hawthorne Boulevard,Rancho Palos Verdes (the "Property").The Property is described as the City of Rancho Palos Verdes'City Yard area. B.Licensor and Licensee have entered into that certain Agreement for Integrated Solid Waste Management Services dated May 5,2009,and first amendment approved on November 17,2009 (the "Waste Management Agreement"). C.Licensee has requested the right to use a portion of the Property (the "License Area"),approximately 1/5 acres in area,for the temporary storage of new trash carts and bins as they are received from the manufacturer,prior to their delivery to customers in the City of Rancho Palos Verdes.The License Area is depicted in Exhibit A,which is attached hereto and incorporated herein by this reference.Licensor is willing to authorize Licensee to use the License Area for the temporary storage of new trash carts and bins,subject to the terms and conditions of this Agreement. NOW,THEREFORE,the Parties agree as follows: 1.LICENSE. Licensor hereby grants to Licensee a license to use the License Area (the "License"), subject to the terms and conditions of this Agreement,for the uses described in Section 3 of this License Agreement.During the term of this License,the Licensor shall not grant any other party the right to occupy or use the License Area. 2.TERM. A.Subject to the terms and conditions of this Agreement,the term of this License shall commence on the Effective Date and end at 11:59 p.m.on July 15,2010.The City Manager may extend the term,in his or her sole discretion,for a period not to exceed thirty (30) days. B.The Effective Date shall be the date that all of the following conditions have been satisfied: R6876-0333\I227999v I.doc 05/1 0/1 08-2 (1)Licensee shall have submitted and Licensor's City Manager shall have approved the proof of insurance required by Section 9.4 of the Waste Management Agreement; (2)License shall have paid to Licensor a license fee in the amount of $1.00;and (3)Licensee shall not be in default under the Waste Management Agreement. 3.USE. A.Subject to the terms and conditions of this Agreement,Licensee and its employees,agents,consultants,and contractors are authorized to use the License Area as follows: (1)For the temporary storage of new,clean carts and bins designed for the storage of solid waste and recyclables.Only those carts and bins scheduled for delivery to customers in the City of Rancho Palos Verdes pursuant to the Waste Management Agreement may be stored on the License Area. B.Licensee has inspected and accepts the License Area In an "as is" condition. C.During the term of this License,Licensee shall bear the entire cost and expense of maintenance of the License Area. 4.PERMITS.Licensee shall obtain all permits required for the use of the License Area pursuant to this Agreement. 5.ACCESS TO LICENSE AREA BY CITY.Licensee agrees that representatives of the City of Rancho Palos Verdes shall have access to the License Area as necessary to verify compliance with the provisions of this Agreement.These access rights are in addition to any other right of access granted to the City. 6.DEFAULT AND TERMINATION.In the event of (a)any default under the Waste Management Agreement,or (b)any default by failing to fulfill any obligations hereunder, the party not in default may declare a default and termination of this Agreement by written notice to the defaulting party,which default and termination shall be effective on a date to be stated in such notice,which date shall not be less than ten (10)days after mailing or personal service of such notice,unless such default is cured before the effective date of termination stated in such notice.Any necessary removal of improvements and restoration of the License Area subsequent to the effective date of termination shall be in conformance with Section 11 below,which shall survive the termination of this Agreement. 7.MAINTENANCE.During the term of the License,Licensee shall,at its sole risk and expense,maintain the License Area,provide security as necessary,and keep the License Area in a safe,clean and sanitary condition at all times. R6876-0333\I227999v I.doc 2 05/10110 8-3 8.ASSUMPTION OF RISK. A.Licensee shall inspect the License Area prior to taking control thereof. Licensee shall exercise its privileges hereunder at its own risk and its own expense,assuming full responsibility for all risks incidental to the performance of this Agreement and the use of the License Area and improvements thereon. B.Licensor assumes no responsibility whatsoever for the safe condition, security or maintenance of the License Area and improvements thereon,nor for the protection of persons and property thereon,and,during the term of this License,Licensee shall be solely responsible for maintenance and security of the License Area and improvements thereon,or changes in the condition of the License Area or of improvements thereon caused by or arising from:(i)any activity,use or performance by Licensee or its contractors,agents or employees under this Agreement;or (ii)any activity,use or performance by Licensee or its contractors, agents or employees on or in the License Area. 9.INDEMNIFICATION. A.Licensee agrees,at its sole cost and expense,to indemnify,hold harmless, release and defend,to the maximum extent permitted by law,Licensor,its City Council and each member thereof,and its officers,employees,agents and representatives from any and all liability,loss,suits,claims,damages,costs,and expenses,including attorney's fees and costs of litigation,which in whole or in part result from,or arise out of,or are claimed to result from,or to arise out of any activity,use or performance by Licensee or its employees,agents,consultants, or contractors under this Agreement or otherwise in,on,or about the License Area including, without limitation,the release of any Hazardous Substances occurring in,on,or about the License Area by Licensee or its employees,agents,consultants or contractors,but excluding any release occurring prior to the Effective Date of this Agreement or after the expiration or termination of this Agreement.Licensee agrees that this indemnity provision is effective without reference to the existence or applicability of any insurance coverage,and that this indemnity provision shall survive the expiration or termination of this Agreement. B.This agreement to indemnify includes,but is not limited to,personal lnJury,including death,and property or other damage sustained by any person or persons (including,but not limited to,companies or corporations,Licensee and its employees,agents,or contractors,and members of the general public)from the causes specified in Section 9.A, including,but not limited to,any act,error,or omission of Licensee or its employees,agents,or contractors. C."Hazardous Substances"shall mean any hazardous substance or waste, hazardous material,chemical compound or element,pollutant or contaminant,as those terms are defined in their broadest sense by any Environmental Law,petroleum or refined petroleum products,flammable explosives,radioactive materials,asbestos,polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity,substances described in California Civil Code Section 2929.5(e)(2)and California Code of Civil Procedure Section 738(f)(3),as those sections may be amended from time to time,as well as,without limitation,all other substances included within the definitions of hazardous substance,hazardous waste,hazardous R6876-0333\I227999v I.doc 3 05/10/108-4 material,toxic substance,solid waste,or pollutant or contaminant in CERCLA,RCRA,TSCA, HMTA (each as defined below)or under any other Environmental Law,and any pollutants, contaminants,hazardous wastes,toxic substances or related materials. D."Environmental Laws"shall mean all federal,state and local laws,rules, orders,regulations,statutes,ordinances,codes,decrees,or requirements of any government authority regulating,relating to,or imposing liability or standards of conduct concerning any Hazardous Substance,or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws,ordinances,or regulations relate to Hazardous Substances on,under,or about the Property),occupational or environmental conditions on,under,or about the Property,as now or may at any later time be in effect, including without limitation,the Comprehensive Environmental Response,Compensation and Liability Act of 1980 ("CERCLA")[42 USCS §9601 et seq.];the Resource Conservation and Recovery Act of 1976 ("RCRA")[42 USCS §6901 et seq.];the Clean Water Act,also known as the Federal Water Pollution Control Act ("FWPCA")[33 USCS §1251 et seq.];the Toxic Substances Control Act ("TSCA")[15 USCS §2601 et seq.];the Hazardous Materials Transportation Act ("HMTA")[49 USCS §1801 et seq.];the Insecticide,Fungicide,Rodenticide Act [7 USCS §136 et seq.];the Superfund Amendments and Reauthorization Act [42 USCS § 6901 et seq.];the Clean Air Act [42 USCS §7401 et seq.];the Safe Drinking Water Act [42 USCS §300f et seq.];the Solid Waste Disposal Act [42 USCS §6901 et seq.];the Surface Mining Control and Reclamation Act [30 USCS §1201 et seq.];the Emergency Planning and Community Right to Know Act [42 USCS §11001 et seq.];the Occupational Safety and Health Act [29 USCS §655 and 657];the California Underground Storage of Hazardous Substances Act [H &S C §25280 et seq.];the California Hazardous Substances Account Act [H &S C §25300 et seq.];the California Hazardous Waste Control Act [H &S C §25100 et seq.];the California Safe Drinking Water and Toxic Enforcement Act [H &S C §24249.5 et seq.];the Porter-Cologne Water Quality Act [Wat C §13000 et seq.]together with any amendments of or regulations promulgated under the statutes cited above and any other federal,state,or local law, statute,ordinance,or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws,ordinances,or regulations relate to Hazardous Substances on,under,about,near,or within the Property),or the regulation or protection of the environment,including ambient air,soil,soil vapor,groundwater,surface water,or land use. 10.AUTHORITY.Licensee certifies that it is properly authorized to enter into and to perform this Agreement and that it shall retain a licensed contractor to perform the work described in paragraphs A(2)and A (3)of Section 3.Licensor certifies that it is properly authorized to enter into and to perform this Agreement. 11.REMOVAL AND RESTORATION. A.If this Agreement expires or is terminated for any reason,Licensee shall, in the sole discretion of Licensor and upon written notice from Licensor,and at the sole expense of Licensee,and within such reasonable period of time determined in writing by the City's Director of Planning,Building and Code Enforcement,remove all of Licensee's equipment and personal property from the License Area and restore the License Area to the extent necessary to leave the License Area in a clean and safe condition. R6876-0333\1227999vl.doc 4 05/10/108-5 B.If Licensee is obligated pursuant to Section II.A,and fails to complete the work necessary to leave the License Area in a clean and safe condition and/or to remove all equipment and personal property from the License Area,after notification by Licensor,Licensor is authorized to complete the work and/or remove all equipment and personal property from the License Area.In that event,Licensee shall reimburse Licensor for all costs incurred by Licensor, within ten (10)days of receipt of a written demand therefore from Licensor. C.This Section 11 shall survive the termination of this Agreement. 12.WAIVER.Licensor's waiver of one term or condition of this Agreement is not a waiver of breach of other terms or conditions of this Agreement,or of a subsequent breach of the term or condition waived. 13.SUCCESSORS.Licensee's rights,obligations and benefits under this Agreement shall run with the land and shall benefit and be binding on Licensee's executors, heirs,successors and assigns. 14.NO ESTATE.This Agreement provides only a right of use of temporary duration and does not give Licensee any added interest,title,estate or right of any kind or extent whatsoever,whether legal or equitable prescriptive or otherwise,in the Property,no matter how much money is expended on the Property nor how long this Agreement runs.Neither a partnership nor a joint venture is in any way intended by this Agreement.Licensee agrees that it will not claim at any time any interest,estate or right in the Property by virtue of this Agreement or by virtue of Licensee's occupancy,use or expenditures under this Agreement. 15.ASSIGNMENT.Licensee shall not assign any interest in this Agreement or a portion of this Agreement without the prior written consent of Licensor,which consent may be granted or withheld in the sole discretion of Licensor. 16.RESTRICTION.Licensee agrees to place no other facilities or improvements, except as herein described,within the Property. 17.LAWS.All acts and activities of Licensee pursuant to this Agreement shall comply with all applicable laws,ordinances,codes and regulations of the federal,state and local governments. 18.ATTORNEY'S FEES.If any action at law or in equity is brought to enforce or interpret the terms of this Agreement,the prevailing party shall be entitled to reasonable attorney's fees,costs and necessary disbursements in addition to any other relief to which such party may be entitled. 19.INTERPRETATION. A.This Agreement,and the rights and duties of the Parties hereunder,shall be governed by and construed according to the laws of the State of California. B.This Agreement,including any exhibits attached hereto,constitutes the entire agreement and understanding between the Parties regarding its subject matter and R6876-0333\1227999v l.doc 5 051101108-6 supersedes all prior or contemporaneous negotiations,representations,understandings, correspondence,documentation and agreements (written or oral). C.This Agreement may be changed by written amendment signed by Licensee and the City Manager or other authorized representative of Licensor,subject to any requisite authorization by the City Council.Any oral representations or modifications concerning this Agreement shall be of no force or effect. D.If any provision in this Agreement is held by any court of competent jurisdiction to be invalid,illegal,void,or unenforceable,such portion shall be deemed severed from this Agreement,and the remaining provisions shall nevertheless continue in full force and effect as fully as though such invalid,illegal,or unenforceable portion had never been part of this Agreement. E.This Agreement is deemed to have been prepared by both of the Parties hereto,after consulting with legal counsel,and any uncertainty or ambiguity herein shall not be interpreted against the drafter,but rather,if such ambiguity or uncertainty exists,it shall be interpreted according to the applicable rules of interpretation of contracts under the law of the State of California. 20.NOTICE.Any notice shall be in writing and given by delivering the same in person or by sending the same by registered,certified or express mail,return receipt requested, with postage prepaid,to the following addresses: Licensor: With a copy to: City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes,California 90274 Tel:(310)544-5228 Fax:(310)544-5293 Carol W.Lynch,City Attorney Richards,Watson &Gershon 355 South Grand Avenue,40th Floor Los Angeles,California 90071 Any such notice shall be deemed to have been given upon delivery,if personally delivered,or if mailed,upon receipt or upon expiration of three (3)days from the date of deposit in the United States mail,whichever is earlier.Either party may change the address at which it desires to receive notice upon giving ten (l0)days written notice to the other party. 21.POSSESSORY INTEREST TAX.In entering into this Agreement,Licensee understands and agrees that the interest created by the Agreement may be a possessory interest subject to property taxation which Licensee,alone,would be responsible for paying. IN WITNESS WHEREOF,Licensee and Licensor have executed this Agreement as of the date first hereinabove written. R6876-0333\I227999v I.doc 6 05/10/108-7 CITY OF RANCHO PALOS VERDES a municipal corporation and general law city By:_ Mayor ATTEST City Clerk R6876-0333\1227999vl.doc 7 CONTRACTOR By:_ Mark Blackburn,President Universal Waste Systems,Inc. P.O.Box 3038,9016 Norwalk Blvd. Santa Fe Springs,CA 90670 05/10/10 8-8 2 1 :3 ..a 9 8 T 11 12 13 20 19 1.8 EXHIBIT A Site Showing UW$License Area uws License Area 5/12/20108-9