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20220719 Late CorrespondenceFrom:Teresa Takaoka To:CityClerk Subject:FW: City Council Meeting: 07/19/22 - Agenda Item #3, City Entry and Park Monuments Date:Tuesday, July 19, 2022 5:05:32 PM Lc From: Mickey Rodich <mickeyrodich@gmail.com> Sent: Tuesday, July 19, 2022 4:31 PM To: CC <CC@rpvca.gov> Subject: City Council Meeting: 07/19/22 - Agenda Item #3, City Entry and Park Monuments CAUTION: This email originated from outside of the City of Rancho Palos Verdes. I think it is ludicrous to spend $397,400 (I guess that also includes consultants) on City entry and Park Monument Signs. Our staff complains that they are short of help, but they have a lot of time to spend on projects such as this. Is this project a want or a need? I don't believe it is a need. $ 397,400 is an awful lot of taxpayer money to spend on entry signs. Who are we trying to impress? We already spent around $200,000 on Preserve signs. That's over a half million dollars. That's a lot of taxpayer money. I have always said that; "Our City Council and staff should be spending the City's money as if it is their own personal money". One day there may be a day of reckoning when we have to pay for it all. With spending $20 million on Ladera Linda Park, at least $30 million, if not a lot more, on the landslide and a Civic Center cost estimate of $40 million to $140 million we will quickly exceed our ability to pay it all back. Don't worry we can use P3 financing to pay for it all. This does not need voter approval when we use P3 financing. I have heard comments from staff and Council that it was a 3 bargain to get a $8 million loan at only 2% interest. That's only $160,000 interest per year. In our City's mind that's peanuts. Keep adding up all the peanuts and the number will surprise you. We are being set up for deficit spending. 1 Nathan Zweizig From:Jesse Villalpando Sent:Tuesday, July 19, 2022 4:46 PM To:CC Cc:CityClerk Subject:Pano AI Revised Cost Memo Attachments:20210719_Memo_KB_AM.pdf Good afternoon Honorable Mayor and City Councilmembers, Please refer to the attached memorandum regarding the Pano AI agenda item for tonight's Council meeting, which reflects recent changes to the proposed cost estimate for the installation of the wildfire monitoring detection system and will also be distributed as late correspondence for tonight's meeting. Please let me know of any questions you may have at this time. Thank you Jesse Villalpando  Senior Administrative  Analyst  Emergency Preparedness  Jvillalpando@rpvca.gov      Phone ‐ (310) 544‐5209   City of Rancho Palos Verdes  30940 Hawthorne Blvd.  Rancho Palos Verdes, CA 90275  Website: www.rpvca.gov  This e-mail message contains information belonging to the City of Rancho Palos Verdes, which may be privileged, confidential and/or protected from disclosure. The information is intended only for use of the individual or entity named. Unauthorized dissemination, distribution, or copying is strictly prohibited. If you received this email in error, or are not an intended recipient, please notify the sender immediately. Thank you for your assistance and cooperation. 4 MEMORANDUM RANCHO PALOS VERDES  CITY MANAGER’S OFFICE  TO: Rancho Palos Verdes City Council FROM: Jesse Villalpando, City Manager’s Office CC: Ara Mihranian, Karina Bañales, City Manager’s Office DATE: July 19, 2022 SUBJECT: Agenda Item No. 4 - Pano AI Wildfire Detection Camera System Since the transmittal of the July 19 City Council agenda packet last week, Staff has obtained additional information regarding the Pano AI agenda item for consideration this evening. Background As presented, Pano AI is seeking a minimum three-year contract for the full deployment of four camera systems within the City at an annual cost of $140,000, for a total contract cost of $420,000. In addition, Pano's proposal assumes the City will pay up to $25,000 for each of the two proposed standalone camera stations to covers costs for the installation of solar or electrical connections, pole installation, landscaping, etc. Based on this information, the total cost of a three-year contract would be $470,000. Recent Updates Recently, Pano AI informed staff that it is willing to execute a one-year subscription for its wildfire detection services with the option to renew for an additional three to four years if desired. In addition, Pano AI informed staff that it is willing to absorb the additional one- time cost of $50,000 for construction costs associated with the two independent sites. This would potentially avoid jeopardizing the Cal OES grant that as previously reported, would not cover the project if construction occurred before a decision on the grant is rendered. The revised cost estimate presented to the City Council at tonight's meeting for consideration calls for a one-year minimum contract at $140,000 with the option to renew for additional years at a cost of $140,000 per year. Cal OES Grant Funding On April 8, 2022, City staff submitted a sub-application to Cal OES requesting Hazard Mitigation Grant Program (HMGP) funding for the installation of an early wildfire detection system. Specifically, the grant request sought funding in the amount of $650,000. In addition, since the HMGP is a cost-sharing program that requires matching funds from non-federal sources, the City's contribution to the non-federal match is $162,500, or 25% of the anticipated $650,000. The City Council approved this match on April 5, 2022. Notably, if the City receives the full $650,000 as requested, it would essentially cover most of the service costs for approximately four years with the City contributing $162,500 in matching funds. At this time, staff is waiting to hear from CalOES regarding the delay in construction as a result of securing the grant funds. ARPA Funds In addition, on October 5, 2021, the City Council approved $125,000 in ARPA funds designated for the purchase of wildfire monitoring cameras. This money will go towards the City’s matching funds of $162,500 resulting in a balance of $37,500. The balance could be offset by reallocating ARPA funds at the upcoming September 6, 2022 meeting (the meeting the Council is tentatively scheduled to review its ARPA funding) or absorbed by the General Plan. Alternatively, the $125,000 of ARPA funds could go towards the first year of service with Pano AI. Revised Recommendations In light of recent information, Staff has revised tonight’s recommendations in track changes as follows: (1) Receive and file a status report on the Request for Proposal selection process; (2) Review the features of Pano AI's Wildfire Camera Detection System and the associated costs, and if deemed acceptable, direct Staff to proceed with a professional service agreement for the City Council's consideration at a future meeting; (3) Receive and file a status report on the City’s FEMA Hazard Mitigation Grant Program application and direct Staff to only proceed with an agreement based on a subscription of services provided by Pano AI without any construction or postpone the installation of the project provided that Cal OES confirms this will not jeopardize the grant applicationuntil a determination on the grant is made in mid- 2023; and, (4) Affirm using the $125,000 of ARPA funding towards the City’s matching funds of the project iIf the FEMA Hazard Mitgation Grant is awarded to the City.for the first year, provide direction to Staff on whether to use the General Fund, or other funding sources, to fund the project for fiscal years 2023-24 through 2024-25. Attachments Pano AI Email Correspondence 1 Jesse Villalpando From:Stephen Murdock <smurdock@pano.ai> Sent:Tuesday, July 19, 2022 2:28 PM To:Ara Mihranian; Jesse Villalpando Cc:Arvind Satyam Subject:Late Correspondence for 7/19 City Council Meeting Attachments:How Tech Startups Are Helping Fight America's Wildfire Problem - Bloomberg (1).pdf CAUTION: This email originated from outside of the City of Rancho Palos Verdes.     Hi Ara and Jesse,      It's great to hear that RPV has submitted an application to the CAL OES / FEMA grants that we suggested could be a  great source of funding. The Pano 360 Platform would be a great use of these funds however there are some  peculiarities to this grant that you've outlined in your report to council around 'groundbreaking'.    Knowing this, Pano wanted to provide an option to our proposed commercial structure that would enable the City of  RPV to:   1) Get up and running with Pano this year   2) Be fully compliant with the CAL OES grant process and   3) reduce overall costs    Rather than a multi‐year initial subscription, for FEMA grants, we execute a 1 year‐subscription for the Pano 360  Platform and remove the $50,000 of upfront Station construction costs. This alone saves RPV $50,000 of upfront costs in  the first contract year; bringing the total from $190,000 down to $140,000!    Once the FEMA grant is approved we use that funding towards a longer, 3 year subscription where the CAL OES grant  covers 75% of the City's costs going forward in the years 2023‐2025.    The reason we are able to do this is there's actually no 'groundbreaking' that occurs under our actual contract ‐ the City  of RPV is simply subscribing to a wildfire detection service that Pano provides. Pano fully manages and owns all of the  hardware, leasing, and construction costs making this fully inline with the scope of the City's recent grant application.    I also wanted to forward along a recent Bloomberg article (also attached) highlighting the work we've been doing in  other parts of the country.      Regards,    Stephen Murdock Director, Utility Sales  Pano AI | www.pano.ai  smurdock@pano.ai | 315.272.7685  6/30/22, 8:44 AM How Tech Startups Are Helping Fight America's Wildfire Problem - Bloomberg https://www.bloomberg.com/news/articles/2022-06-24/tech-companies-want-more-eyes-in-the-sky-for-wildfire-season 1/4 Green Cleaner Tech Tech Companies Want More Eyes in the Sky for Wildfire Season As US fires have become more frequent and devastating, a cottage industry in fire detection technology has emerged. A camera in the hills overlooking Cloverdale, California — one of seven pilot stations Pano AI has installed in Sonoma, Napa and Lake counties.Photo: Pano AI By Mark Bergen June 24, 2022 at 3:00 AM PDT Sign up to receive the Bloomberg Green newsletter in your inbox. 6/30/22, 8:44 AM How Tech Startups Are Helping Fight America's Wildfire Problem - Bloomberg https://www.bloomberg.com/news/articles/2022-06-24/tech-companies-want-more-eyes-in-the-sky-for-wildfire-season 2/4 Dan Nuñez pulls up a video feed on his computer. More from BloombergGreen Prada Seeks to Fashion Greener Luxury Brand Under Future CEO California Getting Back Into Energy Business to Save Wobbly Grid Supreme Court Curbs EPA’s Climate Authority in Blow to Biden Italy’s Drought Worsens as Salty Sea Creeps Further Into Vital River “Can you see that?” he asks, pointing to some rolling, fogy hills in rural Oregon. The footage was captured seven minutes before Nuñez opened up his browser. Barely perceptible on the screen is a rising plume of smoke. “I would not have caught that,” Nuñez said after hitting replay. “But the AI does.” The artificial intelligence Nuñez is referring to comes from Pano AI, a California startup that makes high-definition cameras to detect, track and manage flames. As the manager of wildfire planning and analytics at Portland General Electric, Nuñez is responsible for doing everything possible, as early as possible, to find and put out fires. A cottage industry in fire detection technoloy has taken root, especially in the western US, as fires have become more frequent, larger and financially ruinous. PGE so far has installed five Pano cameras, with plans to add 17 more across Oregon this summer. The hardware offers minute-by-minute snapshots of the surroundings. According to Sonia Kastner, the startup’s founder and chief executive officer, Pano’s software can distinguish benign clouds from What on Earth?What on Earth?What on Earth? The Bloomberg Green newsletter is your guide to the latest in climate news, zero-emission tech and green finance.The Bloomberg Green newsletter is your guide to the latest in climate news, zero-emission tech and green finance.The Bloomberg Green newsletter is your guide to the latest in climate news, zero-emission tech and green finance. Sign up to this newsletter 6/30/22, 8:44 AM How Tech Startups Are Helping Fight America's Wildfire Problem - Bloomberg https://www.bloomberg.com/news/articles/2022-06-24/tech-companies-want-more-eyes-in-the-sky-for-wildfire-season 3/4 troubling smoke. The artificial intelligence that makes that possible has become the main selling point. For firefighters, government agencies and utilities, spotting wildfires early is critical to limiting the damage. “Minutes matter here,” said Mark Miller, chief commercial officer for AEM, an environmental technoloy company owned by Union Park Capital. AEM sells weather stations and panoramic cameras for weather detection, along with satellite data. Like Pano, AEM says it relies on advanced AI that has learned to identify what a wildfire looks like and when it arrives. False alarms do occur, but less than some might expect. Pano operates a call center where staff analyze the video footage before alerting local customers or authorities. Kastner said Pano’s 32 active camera systems have  spotted actual wildfires with 90% accuracy. Cameras aren’t particularly novel solutions. Marin County, north of San Francisco, installed a fleet of remote security cameras to replace volunteer fire lookouts in 2014, after a record drought. The county had to swap them out within four years because they couldn’t properly distinguish smoke from fog. Now Marin uses a statewide camera system that multiple utilities finance. Nuñez believes additional use cases for the devices will emerge. “From a safet y and environmental risk perspective, it’s probably one of the most important projects in our portfolio,” he said. PGE has spent $4.5 million on Pano’s systems so far. Certainly, utilities and state governments are spending more to combat the problem. PGE has budgeted $32 million for wildfire operations this year. In 2021, the agency reported incremental costs of $45 million from wildfire responses, up threefold from the year before. The sums are miniscule compared with what Pano and other consumer or enterprise tech companies can earn in revenue. (Pano declined to disclose that figure.) Pano’s Kastner used to work on smart- home devices for Google’s Nest. She founded the company in 2019, then recruited other alums from Google, Apple and Tesla. The startup estimated that California would only need 1,800 of its cameras to have fully equipped statewide detection, if the money arrives. “We’re a team that’s used to shipping millions of products a month,” said Kastner.  Pano also markets its cameras to private businesses, including a timber company in Australia, where the startup will install six cameras this summer. It is working with t wo resorts in Big Sky, Montana. Do you own an electric car? US residents, Bloomberg Green wants to learn more about your experience with EVs. Take our brief surve y. 6/30/22, 8:44 AM How Tech Startups Are Helping Fight America's Wildfire Problem - Bloomberg https://www.bloomberg.com/news/articles/2022-06-24/tech-companies-want-more-eyes-in-the-sky-for-wildfire-season 4/4 AEM, according to Miller, has more than 6,500 customers, primarily in government; there are some prospective deals AEM is exploring with insurance companies. Chris Martinelli, the fire captain for Marin Count y, has seen waves of demos from companies pitching AI for fire detection. “Some of them are really expensive,” he said. He’s mostly interested in adding the software to the count y’s existing cameras. And he’s yet to see any product that helps with detection at night. For that, the AI tech might not offer any advantage. “It’s not as beneficial as just getting a visual,” he said. Terms of Service Do Not Sell My Info (California) Trademarks Privacy Policy ©2022 Bloomberg L.P. All Rights Reserved Careers Made in NYC Advertise Ad Choices Help TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS FROM: CITY CLERK DATE: JULY 19, 2022 SUBJECT: ADDITIONS/REVISIONS AND AMENDMENTS TO AGENDA _____________________________________________________________________ Attached are revisions/additions and/or amendments to the agenda material presented for tonight’s meeting. Item No. Description of Material 1 Emails from: Mickey Rodich; Jeremy Davies; Lisa Gladstone; Claudia Gutierrez; William and Marianne Hunter ** PLEASE NOTE: Materials attached after the color page(s) were submitted through Monday, July 18, 2022.** Respectfully submitted, _______________ Teresa Takaoka L:\LATE CORRESPONDENCE\2022\2022 Coversheets\20220719 additions revisions to agenda.docx 1 Nathan Zweizig From:Teresa Takaoka Sent:Tuesday, July 19, 2022 3:37 PM To:CityClerk Subject:FW: City Council Meeting: 07/19/22 - Agenda Item #1, Landslide. lc  From: Mickey Rodich <mickeyrodich@gmail.com>   Sent: Tuesday, July 19, 2022 3:35 PM  To: CC <CC@rpvca.gov>  Subject: City Council Meeting: 07/19/22 ‐ Agenda Item #1, Landslide.  CAUTION: This email originated from outside of the City of Rancho Palos Verdes.       In reading this staff report I see some things that need to be further  discussed. I am not aware of the issues our Landslide Consultant has been  working on for the last year. Unlike our existing geologists, I feel that the  Landslide Monitoring Program is the most important part of this project.  It can allow us to follow the land movement of our Landslide, by the  minute, if we use the proper procedures. The staff report does not  emphasize the importance of their Landslide Monitoring Program.       Our staff, rarely if ever, provides our Council with an alternate plan for  any given project that our City considers. About a year ago our City  Manager and a Councilperson attended a meeting that was set up by a  resident of RPV that had actual experience with one of the largest  landslides in the United States. He invited 2 geotechnical engineers from  the University of Arizona that he knew, to look at our landslide and  provide off the cuff comments of their opinions. They both have actual  experience with following the movements of a huge landslide and  predicted its failure before it happened. Think of PVDS with all of the  traffic that passes on it every day. Would it be beneficial to know that  something is happening? They developed a step by step program to  monitor the minute by minute movement of the landslide.      A brief summary of their recommendations were:  1 2  Hire a recent Geotechnical Engineer graduate as a full time  employee. The Geotechnical Engineer will be involved with the  landslide remediation from the beginning and oversee the total  project. The staff would rather hire a Project Manager, which would  be a waste of money because if we had a Project Manager, the staff  would still use an outside contract Project Manager on every  project.   Because of the size of the landslide area, provide at least 24  monitoring stations throughout the landslide area (and it could  include the Abalone Cove landslide) to sense any movement  anywhere in the landslide area.   Use a combination of low cost satellite programs to follow minute  by minute movements in the landslide as compared to staff  recommendation to provide only a monthly report. They also  recommended a joint effort between our City and the University of  Arizona or Long Beach State Geotechnical Departments to use their  students to actually follow the minute by minute landslide  movements as hands‐on class projects.   A recommendation to fill all cracks in the landslide area soil with  dirt, unlike staff recommendation to fill them with a solid concrete  like material. Using the solid concrete like material will create rigid  dams that would impede the normal flow of the underground water  in the landslide and within a few weeks of concrete fill, new cracks  will occur around the concrete fill anyway. The idea is to keep the  surface water from entering via the cracks.   Once we know where the extent of the movement is occurring, then  you can focus on which remedial actions to take in order to  minimize the movement in that specific area. This will allow you to  execute an action and immediately track the ground movement  change in that specific area. To accomplish this, you need many  more than 2 monitoring stations.  3 What ever happened to the project that involved drilling 5 or 6 deep (300  feet) wells, above the actual landslide area a few years ago? If I  remember correctly, upon drilling the 3rd well, they started to see quite a  bit of water and were trying to formulate plans to remove that water  before it entered the landslide. They would have to somehow cross into  the actual landslide area of the Preserve in order to remove that water,  but somehow the Land Conservancy got involved and all of a sudden the  drilling was ended. Why?      The Landslide Monitoring Program we begin with, will determine the  success of the overall project to greatly reduce the land movement of the  Landslide. I recommend that we discuss and implement the  recommendations of the 2 Geotechnical Engineers from the University of  Arizona. This could have been done a year ago, but nothing ever  happened.  From:Ron Dragoo To:CityClerk; Teresa Takaoka Subject:FW: Abalone Cove Sanitary Sewer System Fees Date:Tuesday, July 19, 2022 1:50:32 PM Teri, please include as late correspondence item #1 at tonight’s meeting. Thank you. Ron Dragoo, PE Principal Engineer Some members of the City’s workforce are working remotely during this time. Inquiries will continue to be reviewed on a daily basis. Please be patient with us as there may be delays or minor inconveniences in responding to your inquiry. From: Ramzi Awwad <rawwad@rpvca.gov> Sent: Monday, July 18, 2022 9:44 AM To: Ron Dragoo <RonD@rpvca.gov> Subject: FW: Abalone Cove Sanitary Sewer System Fees From: Jeremy Davies <jeremydavies2014@gmail.com> Sent: Sunday, July 17, 2022 12:39 PM To: David Bradley <david.bradley@rpvca.gov>; Barbara Ferraro <barbara.ferraro@rpvca.gov>; Eric Alegria <Eric.Alegria@rpvca.gov>; John Cruikshank <John.Cruikshank@rpvca.gov>; Ken Dyda <Ken.Dyda@rpvca.gov>; Ara Mihranian <AraM@rpvca.gov>; Ramzi Awwad <rawwad@rpvca.gov> Cc: Claire Leon <claire.pbca@gmail.com>; Claudia Gutierrez <claudia.pbca@gmail.com>; Kent Attridge <kent.pbca@gmail.com>; Matt Nelson <Matt.pbca@gmail.com>; Ben Zask <bzask.pbca@gmail.com>; Gordon & Claire Leon <gordon.leon@gmail.com>; kimnelson <kimnelson@cox.net> Subject: Fwd: Abalone Cove Sanitary Sewer System Fees CAUTION: This email originated from outside of the City of Rancho Palos Verdes. Abalone Cove Sanitary Sewer System Dear Ara and City of RPV Council Members, I see that the agenda for your July 19 meeting includes certain deliberations on the above in order to reduce the City's subsidy of the above (Page 8). Before the system was built, as homeowners we were not informed that the system would not meet the standards of the Los Angeles County Sewer Maintenance District (SMD). Had the system been designed in conjunction with the SMD in a manner that allowed the SMD to assume maintenance of the system the City would not be required to subsidize these costs. Furthermore, the fees that we are charged that vary from property to property (four different levels) could have been those more in line with those charged to other RPV residents. 1 Consequently, the Abalone Cove Collection Sewer System is owned, operated and maintained by the City separately from the rest of the City's sewer system which is operated and maintained by the LA County Sewer Maintenance District (CSMD). A 2017 study stated "Because this system does not meet the standards of the Los Angeles County Sewer Maintenance District (SMD) the SMD would not accept this portion of the City's sewer system for maintenance. As such, the responsibility for the maintenance and operation of the Abalone Cove system rests with the City" (not the homeowners). In 2017 it was also stated that the system is aging and repairs /upgrades are needed to minimize the probability of sewer overflows in this system. I see that the City has hired NV5 to review the condition, life-cycle, rehabilitation (?) etc. costs of the system and to identify the deficiencies in the design. In multiple EIRs and meetings with the City, homeowners have asked the City to confirm that the system complies with State, County and City plumbing codes. This confirmation has never been received. We have provided the City multiple examples of system failures resulting in raw sewage in the streets and on individuals' properties as well as non compliance with the California Plumbing Code. We expect the consultants to address and report on these issues. When the sewer fees system was established, percentage increases were capped by law. Jeremy Davies From:Ron Dragoo To:CityClerk; Teresa Takaoka Subject:Late Correspondence FW: Portuguese Bend Sewer System Date:Tuesday, July 19, 2022 1:50:10 PM Teri, please include as late correspondence item #1 at tonight’s meeting. Thank you. Ron Dragoo, PE Principal Engineer Some members of the City’s workforce are working remotely during this time. Inquiries will continue to be reviewed on a daily basis. Please be patient with us as there may be delays or minor inconveniences in responding to your inquiry. From: Ramzi Awwad <rawwad@rpvca.gov> Sent: Monday, July 18, 2022 9:44 AM To: Ron Dragoo <RonD@rpvca.gov> Subject: FW: Portuguese Bend Sewer System From: Lisa Gladstone <Lisa@coastalobesity.com> Sent: Friday, July 15, 2022 12:46 PM To: David Bradley <david.bradley@rpvca.gov>; Barbara Ferraro <barbara.ferraro@rpvca.gov>; Eric Alegria <Eric.Alegria@rpvca.gov>; John Cruikshank <John.Cruikshank@rpvca.gov>; Ken Dyda <Ken.Dyda@rpvca.gov>; Ara Mihranian <AraM@rpvca.gov>; Ramzi Awwad <rawwad@rpvca.gov> Subject: Portuguese Bend Sewer System CAUTION: This email originated from outside of the City of Rancho Palos Verdes. Dear Council, The City of RPV designed and installed our sewer system as part of an agreement to acquire Abalone Cove Shoreline Park. The sewer system was substandard. The residents of Portuguese Bend had no input, nor had they requested the sewer system be installed. Property owners accepted the sewers based on a fixed cost with Cpi inflation. The City ignored terms of the Horan lawsuit in terms of funding and completing water abatement issues. They ignored their own Panel of Experts who recommended a list of priorities regarding landslide abatement issues like drainage facilities, storm drains and the Altimura Canyon drainage project, choosing instead the ‘low priority’ sewer project. It is unconscionable now for the City to increase our current fee schedule due to higher maintenance costs than they expected. They have been short sighted in their recognition of land movement in our community. You’ve received a letter and history of this ongoing issue from our Portuguese Bend Homeowners Association. Please familiarize yourselves with this issue rather than continue to make statements wondering “how the City got stuck with these sewers” and attempt to foist the costs onto our community.1 Sincerely, Lisa Gladstone Milton Owens 18 Cinnamon Lane Rancho Palos Verdes, From:Ron Dragoo To:CityClerk; Teresa Takaoka Subject:FW: City Council Agenda July 19, 2022 Item Abalone Cove Sewer System Date:Tuesday, July 19, 2022 1:49:59 PM Attachments:PBCA Letter To City Council Agenda July 19, 2022 Sewers.pdf PB Land Movement History.pdf PBCA Leaks July 15, 2022.pdf Teri, please include as late correspondence item #1 at tonight’s meeting. Thank you. Ron Dragoo, PE Principal Engineer Some members of the City’s workforce are working remotely during this time. Inquiries will continue to be reviewed on a daily basis. Please be patient with us as there may be delays or minor inconveniences in responding to your inquiry. From: Ramzi Awwad <rawwad@rpvca.gov> Sent: Monday, July 18, 2022 9:45 AM To: Ron Dragoo <RonD@rpvca.gov> Subject: FW: City Council Agenda July 19, 2022 Item Abalone Cove Sewer System From: Claudia Gutierrez <claudia.pbca@gmail.com> Sent: Friday, July 15, 2022 7:34 AM To: David Bradley <david.bradley@rpvca.gov>; Barbara Ferraro <barbara.ferraro@rpvca.gov>; Eric Alegria <Eric.Alegria@rpvca.gov>; John Cruikshank <John.Cruikshank@rpvca.gov>; Ken Dyda <Ken.Dyda@rpvca.gov>; Ara Mihranian <AraM@rpvca.gov>; Ramzi Awwad <rawwad@rpvca.gov> Cc: Claire Leon <claire.pbca@gmail.com>; Ben Zask <bzask.pbca@gmail.com>; Matt Nelson <Matt.pbca@gmail.com>; Kent Attridge <kent.pbca@gmail.com> Subject: City Council Agenda July 19, 2022 Item Abalone Cove Sewer System CAUTION: This email originated from outside of the City of Rancho Palos Verdes. Good Morning Mayor, City Council & RPV Staff, Please find attached a PBCA letter from the Directors regarding the July 19th Agenda item, Abalone Cove Sewer System, along with PB Movement graph using City of RPV geologist reports and a record the PBCA keeps regarding all leaks (gas, water, sewer & road sinkholes) in our area. If you have any questions please let me know. Sincerely, Claudia Gutierrez PBCA Director 1 VP, Treasurer, Roadsides West & East 310 872-4874 claudia.pbca@gmail.com July 14, 2022 City of Rancho Palos Verdes City Council Mayor Bradley, David.bradley@rpvca.gov Mayor Pro Tem Ferraro, Barbara.ferraro@rpvca.gov Councilman Alegria, eric.alegria@rpvca.gov Councilman Cruikshank, john.cruikshank@rpvca.gov Councilman Dyda, ken.dyda@rpvca.gov Ara Mihranian, City Manager, AraM@rpvca.gov Ramzi Awwad, Public Works Director, rawwad@rpvca.gov Re: July 19, 2022 Agenda Item; Consideration and possible action to receive a status update on various projects associated with the Landslide Complex The Portuguese Bend Community Association Board of Directors represents the property owners within the Abalone Cove Sewer Maintenance District. We will formally file a protest to any increase in our current sewer fee schedule due to higher than normal maintenance costs, and will protest the City passing on the subsidy onto the property owners. These expenses are caused by improperly engineered and installed equipment, inequitable assessments to different property owners within the district and the fact that our sewer fees over the course of the years have been well above other Rancho Palos Verdes resident’s sewer fees for equal service. The Abalone Cove Sewer Collection System is owned, operated and maintained by the City separately from the rest of the City’s sewer system, which is operated and maintained by the LA County Sewer Maintenance District ((CSMD). History 1974 Frank Vanderlip Jr. sold 40 acres at Abalone Cove to LA County. 1975 LA County Department of Beach & County Engineers study for toilet facilities and drainage and sewage requirements 1978 County of Los Angeles sewer improvement project for Narcissa Drive, a draft resolution for the County to do the project was presented and approved by the Mayor Dyda of RPV and the City Council on December 18, 1978. 1978 Abalone Cove Landslide activated 1984 Redevelopment Agency formed, funded by tax increment, RDA is comprised of RPV City Council Members 1984 Liens which are labeled bonds by the City of RPV, Portuguese Bend Residents had liens on our homes to fund the projects from the panel of experts appointed by the RDA. 1987 Horan Settlement, to purchase $10 million worth of assessment bonds to pay for landslide abatement improvements within the Abalone Landslide Abatement District boundaries. 1989 EIR report of Abalone Cove Landslide Stabilization Project done by the County of Los Angeles Public Works, construct domestic sewers to connect to the County Sanitation Dist rict 1989 RPV City Council passed a Resolution to place bonded liens on PB residents’ homes to fund projects deemed necessary by the RDA (City Council Members) 1992 Letter from PBCA Board of Directors to Judge Chernow, presiding Judge of Horan Lawsuit. Letter is in opposition to the liens placed on PB property owners who were not involved in the Horan lawsuit, liens range from $21,000 to $93,000 of resident’s homes. The letter also states the Panel of Experts appointed by the RDA are expanding their activities to the Portuguese Bend Landslide, which these funds are restricted to use for the Abalone Cove Landslide only. At the date of this letter April 23, 1992, of the $10 million award (bonds/liens), only $6 million remained in the fund abatement measures and yet no abatement work has commended as of the date of the April 23, 1992 letter. 1993 April 28th RPV Agenda, Panel of Experts Priority list of improvements from the Horan Settlement Funds for landslide abatement projects. #1 Additional dewatering wells $300,000; #2 Drainage Facilities $1 to $1.5 million (never done); #3 Shoreline Protection $5 million (never done); #4 Domestic Sewers $1 million; #5 Toe berm and shoreline protection $7 million to $9 million (never done) Note that the Panel of Experts deemed the sewers not a high priority. 1994 Rancho Palos Verdes formation of Sewer Maintenance District for Abalone Cove Sanitary Sewers funded by the RDA. Which is funded by Horan Settlement, bonds described in the 1987 settlement agreement. 1996 Panel of Experts’ priorities concerning landslide abatement for Abalone Cove Landslide, remains as stated above in 1992, Sewers are #4 on the list of 5 items. 1998 Letter from the City of RPV to PB residents dated September 22, 1998, stating that they will be installing the sewer system along with the storm drains. Note the storm drain project never happened. 2000 City awards contract for construction of the Abalone Cove Combined Pressure/Gravity Sewer System. Portuguese Bend residents had no input on the design nor did the PB residents give approval of the sewer design. 2001 Letter from City of RPV to PB residents dated June 1 st stating that the City Council has agreed to contribute 47% of the estimated costs. 2002 Completed the Abalone Cove Sewer System, RDA advises ACLAD that they did not have adequate funds to proceed with the Altamira Canyon Drainage Project, which on the Panel of Experts was #2. 2017 City of Rancho Palos Verdes Update Study – Abalone Cove Sewer Maintenance Fee. A-34 page 31 under Grinder Pump Systems states “It is typical for an e-one pump to have a service life of approximately seven to ten years. However, due to service requirements, the pumps at some locations require replacement at 3 to 4 year intervals.” This grinder pump replacement is part of the subsidy the City of RPV pays for. Where else in the City of RPV does a resident have to replace sewer parts every 3 to 4 year s at the cost of $10,000 to $15,000? It is unjust for the City of RPV to pass on this expense to the PB residents when the City of RPV designed and installed the substandard sewer system that we did not request to have. Example: My home has 3 adults with low use of the system, and the grinder pumps last approximately 6 years. (Claudia Gutierrez) The RPV City Council at past meetings have asked the question,” how did we get stuck with these sewers.” The answer is: Abalone Cove Shoreline Park was acquired from the County of Los Angeles by Rancho Palos Verdes Redevelopment Agency on October 13, 1987. Remember in the timeline above in 1975 Los Angeles County Engineers were already designing a sewer and drainage system for Abalone Cove, then in 1978 Los Angeles County engineers presented a sewer system designed which included Narcissa Drive in the PB community along with Abalone Cove beach sewer system, which was approved by Mayor Dyda and the City Council on December 18, 1978. In order for the City of Rancho Palos Verdes to obtain title to Abalone Cove Shoreline Park the City of RPV had to take the responsibility for the construction of the Abalone Cove sewer system. Otherwise, ownership of Abalone Cove Shoreline Park title would remain with Los Angeles Co unty and then Los Angeles County would be responsible for the Abalone Cove Sewer System. By the City of RPV choosing the design as they did ( different that the 1975 LA County sewer design), the City of RPV have excluded the possibility of the L.A. County Sanitation District from taking over maintenance. This precludes the Abalone Cove Sewer District’s landowners from benefiting with the economy of scale of fees the Sanitation District charge with similar neighborhoods. As a result, the cost of the Abalone Cove Sewer System is in some cases 3 times higher than the rest of RPV. Property owners were enticed to accept the sewer system based upon a fixed cost with a CPI inflation factor. To increase the fee and place all of the maintenance costs of a deficient system on the property owners would be unfair. As stated in the City of RPV’s letter to PB landowners on June 1, 2001. The City in their April 2015 Abalone Cove Sewer System Management Plan acknowledges that the system is jointly funded through Abalone Cove Sewer Maintenance District and augmented with an annual City subsidy. This has always been the understanding of the property owners , to change this agreement with a fee increase to the property owners in order to cover a deficient system would be unfair. Note part of the subsidy amount the City of RPV pays is for Administrative expense of $21,948. The property tax revenue the City of RPV receives from property in Portuguese Bend should be con sidered to offset the subsidy the City of RPV funds for the sewers. Homes in the Sewer District are selling for $3 million to $5 million, vacant lots in Zone 2 are selling for $1 million. The PBCA pays for our roads and gates 100%, no City funds are ever used. Portuguese Bend does not have City lights, the two light posts at our entry gates, we pay for. PBCA pays for fire and weed abatement in our community, even on City owned vacant lots within our association. The Portuguese Bend landowners did not petition the City of RPV to install the sewer system. Sewer Rates for FY 2020 to 2021 Portuguese Bend Residents on the Abalone Cove Sewer System pay: Zone A $176.76 Zone B $694.81 Zone C $239.93 Zone D $774.81 Portuguese Bend Residents also pay on to the LA County Sanitation District $167.00 Portuguese Bend Residents pay to ACLAD for dewatering wells $441.49 some pay more depends on the square footage of the home You will find attached to this email the ongoing list of road sinkholes, gas leaks, water pipe breaks, sewage leaks on the West Side of Portuguese Bend, which have the sewer system. Also attached is a graph of the land movement on the West Side of Portuguese Bend as documented by the City Geologist. Sincerely, Claire Leon, President of Portuguese Bend Community Association, claire.pbca@gmail.com Claudia Gutierrez, VP, Treasurer, Roadsides West & East, Claudia.pbca@gmail.com Matt Nelson, Secretary, Roads West, Matt.pbca@gmail.com Kent Attridge, City Liaison, kent.pbca@gmail.com Ben Zask, Access Control, Roads East, bzask.pbca@gmail.com PORTUGUESE BEND LEAKS – LIST IS CONSTANTLY BEING UPDATED 09/09/2019 Sinkhole at Sweetbay & Narcissa, Cal Water leak PBCA repaired $15,136.35 09/16/2020 Cracks on the road, lower Cinnamon from 1 to 3 Cinnamon, PBCA repaired $21,184.00 10/08/20 Cal Water break on Burma Trail, mud and water flowed onto Narcissa all the way down to Sweetbay. Residents used their own Bobcats to direct the flow of mud away from homes. Road damage, Cal Water refuses to pay for. 3/19/2021 Sinkhole at Clovetree, Cal Water leak. PBCA repaired $23,868.00 03/19/2021 Gas leak on Clovetree 02/2021 Gas leak on Cinnamon near Clovetree 02/2021 Cal Water break on Cinnamon near Clovetree 07/17/2021 Cal Water break above Vanderlip 10/17/2021 Cal Water break at Fruit Tree and Narcissa 10/21/2021 Gas leak on Cinnamon 11/02/2021 large crack in the road on Cinnamon in front of Shears vacant lot 11/11/2021 Pipe break at Narcissa gate lot, sprinkler pipe stretched and leaking 11/24/2021 Cal water break at Vanderlip Trail 11/30/2021 main line break at 28 Narcissa, end of pipe separated 1.5” due to land movement 12/02/2021 Cal Water break at 5 corners, (Ginger Root, Narcissa & Cinnamon) 12/02/2021 Gas leak at Clovetree, also detected on lower Cinnamon 12/05/2021 Sewer alarms going off at Sweetbay Pump Station, night crew working 12/05/2021 Raw sewage leaking out of pipes near 28 and 30 Cinnamon, crews working all night and the next day 12/06/2021 Sewage smell reported on lower Narcissa 12/07/2021 Gas smell reported at 1 Cinnamon 12/19/2021 Sewer smell reported and repaired near 20 Narcissa 12/20/2021 Gas smell repair work again at 1 Cinnamon 1/4/2022 Pipe break at Narcissa gate lot, sprinkler pipe stretched and leaking 1/5/2022 City of RPV repairing sewer line on PV Drive South near Wayfarer’s Chapel/Smell 4/13/2022 Cal Water pipe leak on Vanderlip Trail (Upper Cinnamon no water) 5/31/22 Cal Water pipe leak in front of 5 Cinnamon in the road 7/2/22 Water leak at 1 Narcissa 7/5/22 Water leak on Vanderlip Drive Currently the PBCA roads of lower Cinnamon down Narcissa in alignment with the road movement damage the City of RPV has repaired three times near Wayfarer’s Chapel. That is the in alignment with the front side of an old slide in Portuguese Bend, which has not been active since the 1970’s, the Horan lawsuit settlement is when the Dewatering Wells and Sewer proposals were created from. 0 0.1 0.2 0.3 0.4 0.5 0.6 2015 2016 2017 2018 2019 2020 Portuguese Bend Horizontal Land Movement AB20 AB50 AB53 AB68Annual Movement (Feet)Bean Field @ Inspiration Point Sweetbay @ WW8 PV Drive South, East of Narcissa Cinnamon and CloveTree McGee Point ID: Data Collection Period:9/19/2014 - 10/8/2015 10/8/2015 - 4/19/2016 10/5/2016 - 10/4/2017 10/4/2017 - 10/10/2018 10/10/2018 - 11/1/2019 11/1/2019 - 9/24/2020 Calendar Year Annual Precipitation (Inches):5.1 9.19 14.97 7.07 21.51 8.28 1 Nathan Zweizig Subject:FW: Abalone Cove Sewer Collection System Importance:High From: Hunter Studios <2hunter@cox.net>   Sent: Tuesday, July 19, 2022 1:26 PM  To: CC <CC@rpvca.gov>; Ara Mihranian <AraM@rpvca.gov>  Cc: Ken Dyda <Ken.Dyda@rpvca.gov>; David Bradley <david.bradley@rpvca.gov>; Barbara Ferraro  <barbara.ferraro@rpvca.gov>; Eric Alegria <Eric.Alegria@rpvca.gov>; John Cruikshank <John.Cruikshank@rpvca.gov>  Subject: Abalone Cove Sewer Collection System  Importance: High  CAUTION: This email originated from outside of the City of Rancho Palos Verdes.   July 18, 2022   For 7/19 City Council meeting on agenda item…Abalone Cove Sewer maintenance .  We ask that you provide our community with safer, better engineered water and sewer service.  Our family  doesn’t believe we should be charged for the City correcting problems we did not cause, for equipment we  neither installed or own.  Are other communities charged for City  infrastructure repairs, neighborhood by  neighborhood, or are those costs not part of the general budget?   Thank you for your reply.  We are not attending public gatherings.   William and Marianne Hunter  1 Cinnamon Lane, RPV  310‐377‐1871 2hiunter@cox.net  City of Rancho Palos Verdes City Council  Mayor Bradley, David.bradley@rpvca.gov  Mayor Pro Tem Ferraro, Barbara.ferraro@rpvca.gov Councilman Alegria, eric.alegria@rpvca.gov  Councilman Cruikshank, john.cruikshank@rpvca.gov Councilman Dyda, ken.dyda@rpvca.gov  Ara Mihranian, City Manager, AraM@rpvca.gov  Ramzi Awwad, Public Works Director, rawwad@rpvca.gov   Re: July 19, 2022 Agenda Item; Consideration and possible action to receive a status update on various  projects associated with the Landslide Complex   The Portuguese Bend Community Association Board of Directors represents the property owners within the  Abalone Cove Sewer Maintenance District. We will formally file a protest to any increase in our current sewer  fee schedule due to higher than normal maintenance costs, and will protest the City passing on the subsidy  1 2 onto the property owners. These expenses are caused by improperly engineered and installed equipment,  inequitable assessments to different property owners within the district and the fact that our sewer fees over  the course of the years have been well above other Rancho Palos Verdes resident’s sewer fees for equal  service.   The Abalone Cove Sewer Collection System is owned, operated and maintained by the City separately from  the rest of the City’s sewer system, which is operated and maintained by the LA County Sewer Maintenance  District ((CSMD).     TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS FROM: CITY CLERK DATE: JULY 18, 2022 SUBJECT: ADDITIONS/REVISIONS AND AMENDMENTS TO AGENDA _____________________________________________________________________ Attached are revisions/additions and/or amendments to the agen da material received through Monday afternoon for the Tuesday, July 19, 2022 City Council meeting: Item No. Description of Material 2 Attachments A (Non-Exclusive Franchise Agreement for Commercial Solid Waste Services) and B (Amendment No. 1 to the Agreement with MSW Consultants for Solid Waste Programs and Implementation of SB 1383) Respectfully submitted, __________________ Teresa Takaoka L:\LATE CORRESPONDENCE\2022\2022 Coversheets\20220718 additions revisions to agenda thru Monday.docx 1 From:Ramzi Awwad Sent:Friday, July 15, 2022 4:01 PM To:CC Cc:CityClerk; Ara Mihranian; Lauren Ramezani Subject:Late Correspondence - Commercial Solid Waste SB 1383 Compliance Attachments:Attachment A- Non-Exclusive Franchise Agreement for Commercial Solid Waste.pdf; Attachment B- Amendment No 1 to PSA w MSW for Solid Waste Services.PDF Honorable Mayor and Councilmembers,  Attached as late correspondence is:  Attachment A: Non‐Exclusive Franchise Agreement for Commercial Solid Waste Services Attachment B: Amendment No. 1 to the Professional Services Agreement with MSW Consultants for Solid Waste Programs and Implementation of SB 1383 These are the attachments pertaining to:  Regular Business Item 2:   Consideration and possible action to approve non‐exclusive franchise agreements for commercial solid waste services  with the City’s authorized commercial solid waste companies in compliance with the requirements in Senate Bill No.  1383 (SB 1383) to divert organic waste from landfills.  Dependent on Council action, the signed and notarized versions will be forthcoming. Please let me know if you have any  questions or if I can provide any further information. Thank you.  Sincerely,  Ramzi Awwad  Public Works Director  rawwad@rpvca.gov       Phone ‐ (310) 544‐5275   City of Rancho Palos Verdes  30940 Hawthorne Blvd.  Rancho Palos Verdes, CA 90275  Website: www.rpvca.gov  This e-mail message contains information belonging to the City of Rancho Palos Verdes, which may be privileged, confidential and/or protected from disclosure. The information is intended only for use of the individual or entity named. Unauthorized dissemination, distribution, or copying is strictly prohibited. If you received this email in error, or are not an intended recipient, please notify the sender immediately. Thank you for your assistance and cooperation. 2 NON-EXCLUSIVE COMMERCIAL FRANCHISE AGREEMENT FOR PROVISION OF SOLID WASTE HANDLING SERVICES BETWEEN THE CITY OF RANCHO PALOS VERDES` AND ___________________ JULY 19, 2022 A-1 i CONTENTS SECTION 1. DEFINITIONS ................................................................................................ 4 1.1 AB 32 ............................................................................................................ 4 1.2 AB 341 .......................................................................................................... 4 1.3 AB 876 .......................................................................................................... 4 1.4 AB 901 .......................................................................................................... 4 1.5 AB 939 .......................................................................................................... 4 1.6 AB 939 Fee ................................................................................................... 5 1.7 AB 1826........................................................................................................ 5 1.8 Administrator .............................................................................................. 5 1.9 Affiliate ........................................................................................................ 5 1.10 Agreed Upon Procedures ............................................................................ 6 1.11 Agreement ................................................................................................... 6 1.12 Annual Diversion Report ............................................................................. 6 1.13 Animal Waste .............................................................................................. 6 1.14 Applicable Laws ........................................................................................... 6 1.15 Back-haul ..................................................................................................... 6 1.16 BASIC Score .................................................................................................. 7 1.17 Billings .......................................................................................................... 7 1.18 Bin ................................................................................................................ 7 1.19 Blue Container ............................................................................................. 7 1.20 Bulky Waste ................................................................................................. 7 1.21 C&D .............................................................................................................. 7 1.22 California Code of Regulations (CCR) .......................................................... 8 1.23 CalRecycle .................................................................................................... 8 1.24 Cart .............................................................................................................. 8 1.25 City ............................................................................................................... 8 1.26 City Limits .................................................................................................... 8 1.27 City Manager ............................................................................................... 8 1.28 Collect/Collection/Collecting ...................................................................... 8 1.29 Commercial or Commercial Business .......................................................... 8 1.30 Commercial Edible Food Generators .......................................................... 9 1.31 Commercial Generator ................................................................................ 9 1.32 Commercial Premises .................................................................................. 9 1.33 Community Composting .............................................................................. 9 1.34 Compactor ................................................................................................... 9 1.35 Compliance Review ..................................................................................... 9 A-2 ii 1.36 Complaint .................................................................................................. 10 1.37 Compost .................................................................................................... 10 1.38 Compostable Plastics ................................................................................. 10 1.39 Construction and Demolition Debris (C&D) or C&D Materials ................. 10 1.40 Container or Franchisee Provided Container ............................................ 10 1.41 Contamination or Contaminated Container ............................................. 10 1.42 Customer ................................................................................................... 10 1.43 Discarded Materials ................................................................................... 11 1.44 Disposal or Dispose ................................................................................... 11 1.45 Disposal Site(s) .......................................................................................... 11 1.46 Divert or Diversion .................................................................................... 11 1.47 EDCO Residential Agreement .................................................................... 11 1.48 Edible Food ................................................................................................ 12 1.49 Effective Date ............................................................................................ 12 1.50 Electronic or E Waste ................................................................................ 12 1.51 Environmental Laws .................................................................................. 12 1.52 Excluded Waste ......................................................................................... 12 1.53 Facility(ies) ................................................................................................. 13 1.54 Food Recovery ........................................................................................... 13 1.55 Food Recovery Organization ..................................................................... 13 1.56 Food Recovery Service .............................................................................. 13 1.57 Food Scraps ............................................................................................... 14 1.58 Food-Soiled Paper ..................................................................................... 14 1.59 Food Waste ................................................................................................ 14 1.60 Franchisee.................................................................................................. 14 1.61 Franchise Area ........................................................................................... 14 1.62 Franchise Fee ............................................................................................. 14 1.63 Generator .................................................................................................. 14 1.64 Gray Container .......................................................................................... 14 1.65 Gray Container Waste ............................................................................... 15 1.66 Green Container ........................................................................................ 15 1.67 Green Container Waste ............................................................................. 15 1.68 Green Waste or Yard Waste ...................................................................... 15 1.69 Gross Receipts ........................................................................................... 15 1.70 Hauler Route .............................................................................................. 15 1.71 Hazardous Substance ................................................................................ 15 1.72 Hazardous Waste....................................................................................... 16 1.73 Infectious Waste ........................................................................................ 16 1.74 Holiday ....................................................................................................... 17 1.75 Landfill ....................................................................................................... 17 A-3 iii 1.76 Large Event ................................................................................................ 17 1.77 Large Venue ............................................................................................... 17 1.78 Manure ...................................................................................................... 17 1.79 Materials Recovery Facility ....................................................................... 18 1.80 Medical Waste ........................................................................................... 18 1.81 Multi-family or Multi-family Dwelling. ...................................................... 18 1.82 Mulch ......................................................................................................... 18 1.83 Non-Compostable Paper ........................................................................... 19 1.84 Non-Exclusive Franchise Agreement ......................................................... 19 1.85 Non-Organic Recyclables ........................................................................... 19 1.86 On-Call ....................................................................................................... 19 1.87 Organic Waste ........................................................................................... 19 1.88 Organic Waste Generator ......................................................................... 19 1.89 Owner ........................................................................................................ 19 1.90 Party or Parties .......................................................................................... 20 1.91 Person ........................................................................................................ 20 1.92 Premises .................................................................................................... 20 1.93 Printing and Writing Papers ...................................................................... 20 1.94 Process, Processed, or Processing ............................................................. 20 1.95 Prohibited Container Contaminants ......................................................... 20 1.96 Property Owner ......................................................................................... 21 1.97 Putrescible Waste ...................................................................................... 21 1.98 Reasonable Business Effort ....................................................................... 21 1.99 Recyclables or Recyclable Materials ......................................................... 21 1.100 Recycle/Recycling ...................................................................................... 21 1.101 Refuse ........................................................................................................ 21 1.102 Refuse Impact Reduction Laws ................................................................. 22 1.103 Remodel ..................................................................................................... 22 1.104 Renewable Natural Gas (RNG) .................................................................. 22 1.105 Roll-off Box ................................................................................................ 22 1.106 Route Reviews ........................................................................................... 22 1.107 SB 1383 ...................................................................................................... 22 1.108 SB 1383 Regulations .................................................................................. 23 1.109 Single-family .............................................................................................. 23 1.110 Self-hauler (or Self-haul) ........................................................................... 23 1.111 Service Level .............................................................................................. 23 1.112 Solid Waste ................................................................................................ 23 1.113 Solid Waste Enterprise .............................................................................. 23 1.114 Source Separated ...................................................................................... 24 1.115 Source Separated Blue Container Organic Waste (SSBCOW) ................... 24 A-4 iv 1.116 Source Separated Green Container Organic Waste (SSGCOW) ................ 24 1.117 Source Separated Recyclable Materials .................................................... 24 1.118 Split Container ........................................................................................... 24 1.119 State ........................................................................................................... 24 1.120 Term........................................................................................................... 24 1.121 Temporary Bin Service. ............................................................................. 25 1.122 Tier One Commercial Edible Food Generators. ........................................ 25 1.123 Tier Two Commercial Edible Food Generators ......................................... 25 1.124 Transfer...................................................................................................... 26 1.125 Transformation .......................................................................................... 26 1.126 Transportation or Transport...................................................................... 26 1.127 Universal Waste ......................................................................................... 26 1.128 Work Days ................................................................................................. 26 1.129 White Goods .............................................................................................. 26 SECTION 2. Representations and Warranties of Franchisee ........................................ 27 2.1 Corporate Status ....................................................................................... 27 2.2 Corporate Authorization ........................................................................... 27 2.3 Accuracy of Representation and Warranties ............................................ 27 SECTION 3. Grant of Franchise; Scope of Franchise; Exclusions .................................. 28 3.1 Grant and Acceptance of Agreement........................................................ 28 3.2 Annexations ............................................................................................... 28 3.3 Rights in Annexed Territories .................................................................... 28 3.4 Acknowledgment that Modification to Rights is Occurring ...................... 29 3.5 “Five-year Notice” Pursuant to Public Resources Code Section 49520 ......................................................................................................... 29 3.6 Scope of Franchise; Exceptions ................................................................. 29 3.7 Legally-Required Exemptions .................................................................... 31 3.8 Effective Date; Commencement of Services ............................................. 32 3.9 Term and Extended Term .......................................................................... 32 3.10 Conditions to Effectiveness of Agreement ................................................ 32 3.11 Delegation of Authority ............................................................................. 33 SECTION 4. General Agreement ................................................................................... 34 4.1 Ownership of Discarded Materials ............................................................ 34 4.2 Subcontracting .......................................................................................... 34 SECTION 5. COLLECTION SERVICES .............................................................................. 35 5.1 General Standards. .................................................................................... 35 Commercial Collection- General ............................................................... 36 A-5 v 5.2 36 5.2.1 Automated Rollout of SB 1383-compliant Services ....................... 36 5.2.2 Bin Collection – Gray Container Waste (Refuse) ........................... 36 5.2.3 Source Separated Blue Container Waste ....................................... 36 5.2.4 Bin Collection – Source Separated Green Container Organic Waste ................................................................................ 37 5.2.5 Special Collection Consideration for Commercial Premises .......... 37 5.3 On-Call Container Services ........................................................................ 38 5.4 Encroachment Permits Required .............................................................. 38 5.5 On-Call Services for Collection of Bulky Waste ......................................... 38 SECTION 6. Other Services ........................................................................................... 40 6.1 Designated Disposal Site ........................................................................... 40 6.2 Contamination Monitoring........................................................................ 40 6.2.1 Route Reviews ................................................................................ 40 6.2.2 Waste Evaluations .......................................................................... 40 6.2.3 Quarterly Contamination Reporting Requirements ...................... 41 6.3 Education and Outreach ............................................................................ 41 6.3.1 General ........................................................................................... 41 6.3.2 Program Objectives ........................................................................ 41 6.3.3 Minimum Content Requirements .................................................. 42 6.3.4 Annual Education Plan ................................................................... 43 6.3.5 On-going Education Requirements ................................................ 43 6.4 Materials Distribution Methods ................................................................ 44 6.4.1 Personnel ........................................................................................ 44 6.5 Technical Assistance Program ................................................................... 45 6.5.1 Site Visits and Waste assessments ................................................. 45 6.5.2 Recordkeeping and Reporting Requirements ................................ 46 6.6 Procurement of Products with Recycled and Organic Contents .............. 46 6.6.1 Recycled – Content Paper .............................................................. 46 6.6.2 Provision of Mulch.......................................................................... 47 6.6.3 Renewable Natural Gas .................................................................. 47 6.6.4 Recordkeeping Requirements ..................................................... 48 6.7 Billings ........................................................................................................ 48 6.7.1 Direct Billing ................................................................................... 48 6.7.2 Delinquent Accounts ...................................................................... 48 6.8 Customer Waiver Program Coordinator ................................................... 48 6.8.1 Franchisee Waiver Request on Behalf of Customer ...................... 48 6.8.2 Waiver Reverification ..................................................................... 49 6.8.3 Franchisee Recordkeeping of Customer Granted Waivers ............ 49 6.9 Inspection and Enforcement ..................................................................... 49 A-6 vi 6.9.1 Annual Compliance Reviews .......................................................... 49 6.9.2 Compliance Review Process ........................................................... 50 6.10 Service Complaints .................................................................................... 51 6.10.1 General ........................................................................................... 51 6.10.2 SB 1383 Regulatory Non- Compliance Complaints ........................ 51 6.10.3 Investigation of SB 1383 Regulatory Non-Compliance Complaints ...................................................................................... 51 6.10.4 Reporting ........................................................................................ 52 6.11 Solid Waste Composition Studies ............................................................. 52 SECTION 7. Standard of Performance .......................................................................... 53 7.1 General ...................................................................................................... 53 7.2 Availability of Franchisee .......................................................................... 53 7.3 Franchisee Liaison to the City.................................................................... 53 7.4 Hours and Dates of Collection ................................................................... 53 7.5 Changes in Collection Schedule ................................................................. 54 7.6 Citizen Complaints ..................................................................................... 54 7.7 Record of Complaints. ............................................................................... 55 7.8 Disputes. .................................................................................................... 55 7.9 Tags and Records of Non-Collected Materials. ......................................... 55 7.10 Property Damage Caused by Franchisee. ................................................. 55 7.11 Quality of Service Surveys. ........................................................................ 56 7.12 Annual Route Audit. .................................................................................. 56 7.13 On-Call Equipment and Personnel. ........................................................... 56 7.14 Collection Standards. ................................................................................. 56 7.15 Collection Vehicle Requirements. ............................................................. 56 7.15.1 General ........................................................................................... 56 7.16 Truck Bodies. ............................................................................................. 57 7.16.1 Backup Alarm. ................................................................................ 57 7.16.2 Gross Vehicle- Weight Limit. .......................................................... 58 7.16.3 Preventive Maintenance and Repair Program. .............................. 58 7.16.4 Vehicle Cleaning. ............................................................................ 58 7.16.5 Vehicle Storage. .............................................................................. 58 7.16.6 Litter Abatement. ........................................................................... 58 7.17 City Inspections ........................................................................................ 59 7.17.1 Brake Inspections. .......................................................................... 59 7.18 Correction of Defects. ............................................................................... 60 7.19 Containers Condition. .............................................................................. 60 7.19.1 Bins. ................................................................................................ 60 7.20 Personnel ................................................................................................... 61 7.20.1 General ........................................................................................... 61 A-7 vii 7.20.2 Driver Qualifications ....................................................................... 61 7.20.3 Uniforms and Identification Badges ............................................... 61 7.20.4 Employee Appearance and Conduct .............................................. 62 7.20.5 Safety Training ................................................................................ 62 7.20.6 Safety .............................................................................................. 62 7.20.7 Non-Discrimination ........................................................................ 62 7.20.8 No Gratuities .................................................................................. 63 7.20.9 Notice of Labor Disputes ................................................................ 63 7.21 Hazardous Materials Inspection and Handling ......................................... 63 7.22 Diversion Requirements ............................................................................ 64 7.22.1 State Mandate ................................................................................ 64 7.22.2 Development of Diversion Program............................................... 64 7.23 Oversight of City Manager or Designee .................................................... 64 SECTION 8. Recordkeeping and Reporting ................................................................... 65 8.1 Recordkeeping ........................................................................................... 65 8.1.1 Record Retention and Security ...................................................... 65 8.1.2 City Ownership of Data Provided by Franchisee ............................ 66 8.1.3 Billing Records ................................................................................ 66 8.1.4 CERCLA Defense Records ............................................................... 66 8.2 Inspection of Franchisee’s Other Accounts and Records.......................... 66 8.3 Payments and Refunds .............................................................................. 66 8.4 Cost of Agreed Upon Procedures .............................................................. 67 8.5 Reporting and Information Transfer ......................................................... 67 8.5.1 Reports and Data – Purpose and Format ....................................... 67 8.5.2 Customer Data Transfer. ................................................................ 67 8.5.3 Reports-Schedule. .......................................................................... 68 8.5.4 Reports – Quarterly. ....................................................................... 68 8.6 Annual Reports .......................................................................................... 69 8.6.1 Proprietary Information: Public Records ....................................... 70 8.6.2 Reporting of Adverse Information ................................................. 71 8.6.3 Failure to Report ............................................................................ 71 SECTION 9. City Fees ..................................................................................................... 72 9.1 Franchise Fee ............................................................................................. 72 9.2 AB 939 Fee ................................................................................................. 72 9.3 Payment Protocol ...................................................................................... 72 SECTION 10. Rates .......................................................................................................... 74 10.1 Franchisee Sets Rates; Discounted Rate for Recyclables .......................... 74 A-8 viii SECTION 11. Insurance and Indemnity ........................................................................... 75 11.1 Insurance. .................................................................................................. 75 11.1.1 Proof of Insurance .......................................................................... 75 11.1.2 Duration of Coverage ..................................................................... 75 11.1.3 Primary Noncontributing ............................................................... 75 11.1.4 Agency’s Right to Enforcement ...................................................... 75 11.1.5 Acceptable Insurance ..................................................................... 76 11.1.6 Waiver of Subrogation ................................................................... 76 11.1.7 Enforcement of Contract Provision (Non-Estoppel) ...................... 76 11.1.8 Requirements Not-limiting ............................................................. 76 11.1.9 Notice of Cancellation .................................................................... 76 11.1.10 Additional Insured Status ......................................... 77 11.1.11 Prohibition of Undisclosed Coverage Limitation 77 11.1.12 Separation of Insured ............................................... 77 11.1.13 Pass-through Clause ................................................. 77 11.1.14 Agency’s Right to Revise Specifications ................... 77 11.1.15 Self-insured Retentions ............................................ 78 11.1.16 Timely Notice of Claims............................................ 78 11.1.17 Additional Insurance ................................................ 78 11.2 Indemnification. ........................................................................................ 78 11.3 Refuse Impact Reduction Laws Guarantee Indemnification..................... 79 SECTION 12. Transfer of Interest. ................................................................................... 81 12.1 Restrictions on Transfer ............................................................................ 81 12.2 Definition of Transfer ................................................................................ 81 12.3 Transfers Require City Approval ................................................................ 81 12.4 Exceptions.................................................................................................. 82 12.5 Assumption of Obligations ........................................................................ 83 12.6 Release of Franchise .................................................................................. 83 SECTION 13. Defaults and Remedies .............................................................................. 84 13.1 California Law ............................................................................................ 84 13.2 Dispute; Default ......................................................................................... 84 13.3 Waiver ....................................................................................................... 84 13.4 Rights and Remedies are Cumulative........................................................ 85 13.5 Legal Action ............................................................................................... 85 13.6 City’s Right to Perform or Transfer Service ............................................... 85 13.7 Attorneys’ Fees .......................................................................................... 85 13.8 Cooperation Following Termination ......................................................... 86 13.9 Default for Criminal Activity ...................................................................... 86 A-9 ix 13.10 Basis for Liquidated Damages ................................................................... 86 13.11 Remedies for Nuisance Violations; Liquidated Damages ......................... 87 13.11.1 Liquidated Damages ................................................. 87 13.11.2 Nuisance Conditions ................................................ 87 13.12 No Waiver of City’s Police Powers or Legal Rights .................................... 88 13.13 Force Majeure ........................................................................................... 88 SECTION 14. Other Agreements of the Parties .............................................................. 89 14.1 Relationship of Parties .............................................................................. 89 14.2 Permits and License ................................................................................... 89 14.3 Notice ........................................................................................................ 89 SECTION 15. Miscellaneous Agreements ....................................................................... 91 15.1 Entire Agreement ...................................................................................... 91 15.2 Section Headings ....................................................................................... 91 15.3 Laws and Regulations ................................................................................ 91 15.4 No Liability of City Officials ........................................................................ 91 15.5 Interpretation ............................................................................................ 91 SECTION 16. Integration Amendments .......................................................................... 93 16.1 Severability ................................................................................................ 93 16.2 Exhibits ...................................................................................................... 93 16.3 Conflict of Interest ..................................................................................... 93 16.4 No Joint Venture ........................................................................................ 94 A-10 1 of 94 AGREEMENT This Non-Exclusive Commercial Franchise Agreement for Provision of Commercial Solid Waste Handling Services (“Agreement”) is made and entered into this 19th day of July 2022, by and between _____________ ("Franchisee") and the City of Rancho Palos Verdes, a municipal corporation of the State of California (‘City”). City and Franchisee are occasionally in this Agreement referred to each as a “Party” and collectively as the “Parties”. R E C I T A L S: WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ("AB 939") declares that a city may determine all aspects of solid waste handling which are of local concern, including, but not limited to, frequency of Collection, means of Collection and transportation, level of services, charges and fees and the nature, location and extent of providing so lid waste handling services; and WHEREAS, the passage of AB 32, the California Global Warming Solutions Act of 2006, (“AB 32”), required by law a sharp reduction of greenhouse gas (“GHG”) emissions. AB 32 requires California to reduce its GHG emissions to 1990 levels by 2020 — a reduction of approximately 15% below emissions expected under a “business as usual” scenario. Local governments will play a vital role in the implementation of AB 32 by identifying opportunities and best practices to increase waste reduction and recycling, thereby reducing carbon emissions. Franchisee's operation of a mixed waste processing system will contribute to GHG emissions reductions by maximizing diversion to reduce gas-producing landfill deposits and utilizing latest fuel and vehicular technologies to reduce carbon emissions produced by waste hauling vehicles in performing waste Collection and Diversion activities for the City and by recovering and recyclin g commodities in the waste stream; and WHEREAS, in 2011, the State of California enacted Assembly Bill 341 (“AB 341”), which provides further procedures for complying with AB 32. The purpose of AB 341 is to achieve the reduction in GHG by increasing the amount of commercial waste recycled in California, specifically, by requiring businesses and public entities that generate four cubic yards or more of solid waste per week, and multifamily residences with five or more units, to recycle. The provision of commercial recycling services is required by this Agreement; and A-11 2 WHEREAS, the Legislature of California, by enactment of Chapter 12.9 of Part 3 of Division 30 of the Public Resources Code (Section 42649.8, et seq.; also known as the Mandatory Commercial Organics Recycling Act of 2014, or “AB 1826”), requires each jurisdiction to implement an Organic Waste Recycling program on and after January 1, 2016, and requires business that generate eight or more cubic yards of waste per week to arrange for organic waste recycling services by April 1, 2016. The provision of organic waste recycling services is required by this agreement; and WHEREAS, AB 939, AB 32, AB 341, AB 1826, SB 1383 and Related Laws pertaining to the environmental impacts of solid waste, as may be enacted or amended in the future, are collectively referred to in this Agreement as the “Refuse Impact Reduction Laws.” Pursuant to California Public Resources Code Section 40059(a)(2), and Rancho Palos Verdes Municipal Code Section 8.20.110260, the City Council of the City of Rancho Palos Verdes has determined that the public health, safety, and welfare require that a non - exclusive franchise be awarded to qualified Solid Waste Enterprises for Commercial Solid Waste handling and On-Call Commercial Bin and Rolloff Box services in the City; and WHEREAS, the successful implementation of Commercial solid waste handling and On-Call Commercial Bin and Roll-off Box services in the City will entail the expenditure of large sums of capital by the Franchisee, for which the Franchisee is entitled to be compensated. City intends that this Agreement will contribute to safeguarding public health by providing the most cost -effective, efficient, reliable, and environmentally appropriate solid waste services to its citizens; and WHEREAS, the State of California has found and declared that the amount of Solid Waste generated in California, coupled with diminishing Disposal capacity and interest in minimizing potential environmental impacts from landfilling and the need to conserve natural resources, have created an urgent need for State and local agencies to enact and implement an aggressive integrated waste management program. The State has, throug h enactment of AB 939 and subsequent related legislation including, but not limited to: the Jobs and Recycling Act of 2011 (“(AB 341”),), the Event and Venue Recycling Act of 2004 (“(AB 2176”),), SB 1016 (Chapter 343, Statutes of 2008 [Wiggins, “SB 1016”]),]), the Mandatory Commercial Organics Recycling Act of 2014 (AB 1826), and the Short -Lived Climate Pollutants Bill of 2016 (“(SB 1383”),), directed the responsible State agency, and all local agencies, to promote a reduction in Landfill Disposal and to maximize the use of feasible waste reduction, Reuse, Recycling, and Composting options in order to reduce the amount of material that must be Disposed; and, WHEREAS, SB 1383 establishes regulatory requirements for jurisdictions, Generators, haulers, Solid Waste facilities, and other entities to support achievement of State-wide Organic Waste Disposal reduction targets; and, A-12 3 WHEREAS, SB 1383 Regulations require the City to implement Collection programs, meet Processing facility requirements, conduct contamination monitoring, provide education, maintain records, submit reports, monitor compliance, conduct enforcement, and fulfill other requirements; and the City has chosen to delegate some of its responsibilities to the Franchisee, acting as City’s designee, through this Agreement; and WHEREAS, the successful implementation of Commercial solid waste handling and On-Call Commercial Bin and Rolloff Box services in the City will entail the expenditure of large sums of capital by the Franchisee, for which the Franchisee is entitled to be compensated. City intends that this Agreement will contribute to safeguarding public health by providing the most cost -effective, efficient, reliable, and environmentally appropriate solid waste services to its citizens; and WHEREAS, prior to entering into this Agreement, City entered into an exclusive franchise agreement, and a subsequent amendment thereto, with EDCO Disposal Corporation for Residential Solid Waste Management Services (“EDCO Agreement”). The current Agreement is intended to compliment and not conflict with the EDCO Agreement.; NOW, THEREFORE, in consideration of the promises and covenants contained in this Agreement, the above recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: A-13 4 SECTION 1. DEFINITIONS Whenever any term used in this Agreement has been defined by the provisions of Chapter 8.20 of the Rancho Palos Verdes Municipal Code (hereafter “Chapter 8.20”) or by Division 30, Part 1 or Part 3 of the California Public Resources Code, the definitions in the Municipal Code or the Public Resources Code shall apply unless the term is otherwise defined in this Agreement, in which case this Agreement shall control. 1.1 AB 32 “AB 32” shall mean Assembly Bill 32, the Global Warming Solutions Act of 2006. 1.2 AB 341 “AB 341” shall mean the Assembly Bill approved by the Governor of the State of California on October 5, 2011, which amended Sections 41730, 41731, 41734, 41735, 41736, 41800, 42926, 44004, and 50001 of, and added Sections 40004, 41734.5, and 41780.01 and Chapter 12.8 (commencing with Section 42649) to Part 3 of Division 30 of, and added and repealed Section 41780.02 of, the Public Resources Code, relating to Solid Waste, as amended, supplemented, superseded and replaced from time to time. shall mean Regular Session of the California Legislature (Chapter 476, Statutes 2011). 1.3 AB 876 “AB 876” shall mean the Assembly Bill approved by the Governor of the State of California on October 8, 2015, which added Section 418214 to the Public Resources Code, relating to Solid Waste as amended, supplemented, superseded, and replaced from time to time. 1.4 AB 901 “AB 901” shall mean Assembly Bill approved by the Governor of the State of California on October 10, 2015, which amended Section 41821.5 of, amended, renumbered and added Section 41821.6 of, and added Sections 41821.7 and 41821.8 to, the Public Resources Code, relating to Solid Waste, as amended, supplemented, superseded, and replaced from time to time. 1.5 AB 939 “AB 939” shall mean the California Integrated Waste Management Act of 1989, currently codified as California Public Resources Code Section 40000 et seq., as it may be amended, supplemented, superseded and replaced from time to time. from time to time. A-14 5 1.6 AB 939 Fee “AB 939 Fee” shall mean the fee paid by Franchisee to the City to aid the City’s compliance with Refuse Impact Reduction Laws, as described in Section 9.2 hereof. 1.7 AB 1826 “AB 1826” shall mean Chapter 12.9 of Part 3 of Division 30 of the Public Resources Code, beginning at Section 42649.8, as it may be amended, supplemented, superseded and replaced from time to time. and which requires each jurisdiction to implement an Organic Waste Recycling program on and after January 1, 2016, and requires businesses that qualify as “Organic Waste Generators” to arrange for Organic Waste recycling services on and after April 1, 2016. 1.8 Administrator "Administrator" shall mean the City Manager or the City Manager's designee. 1.9 Affiliate “Affiliate” shall mean all businesses (including corporations, limited and general partnerships and sole proprietorships) which are directly or indirectly related to Franchisee by virtue of direct or indirect ownership interest or common management. All such businesses shall be deemed to be "Affiliated with" Franchisee and included within the term "Affiliates" as used in this Agreement. An Affiliate shall include a business in which Franchisee owns a direct or indirect ownership interest, a business which has a direct or indirect ownership interest in Franchisee and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Franchisee. 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) 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 (10%) 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. Being an Affiliate does not exempt a business from the application of assignment requirements under Article VIII hereof. A-15 6 1.10 Agreed Upon Procedures "Agreed Upon Procedures" shall mean the procedures and methodology approved by the City's Finance Department for review and audit of Franchisee's financial records in connection with this Agreement. 1.11 Agreement "Agreement" shall mean this Agreement for Provision of Commercial Solid Waste Handling Services. 1.12 Annual Diversion Report “Annual Diversion Report” shall mean the annual report submitted by the Franchisee to the City describing the previous year’s Diversion activities, Diversion percentages and associated calculations and the description of the Diversion activity planned for the upcoming year, if applicable. The Annual Diversion Report shall be prepared in a manner that directly corresponds to the reporting requirements of the California Department of Resources Recycling and Recovery (CalRecycle) and the California Integrated Waste Management Act, as amended. 1.13 Animal Waste “Animal Waste” shall mean animal carcasses, dead animals, and/or parts or portions of dead animals. Animal waste shall not include Manure. 1.14 Applicable Laws “Applicable Laws” shall mean all Federal, State, County, and local laws, regulations, rules, orders, judgments, decrees, permits, approvals, or other requirements of any governmental agency having jurisdiction over an aspect of this Agreement that are in force on the Effective Date, and as may be enacted, issued or amended thereafter, including without limitation City’s Municipal Code, AB 341, AB 876, AB 901, AB 939, AB 1594, AB 1826 and SB 1383. 1.15 Back-haul “Back-haul” shall mean Transporting Recyclable Materials or Organic Waste to a destination operated by the waste generator using the generator’s own vehicles, equipment and employee’s vehicle or trailer that was originally used to deliver products or finished goods to the waste generator’s location (see, 14 CCR Section 18982(a)(66)(A)). A-16 7 1.16 BASIC Score “BASIC Score” shall mean the Behavior Analysis and Safety Improvement Category percentile score assigned to motor carriers and determined by the Federal Motor Carrier Safety Administration’s Safety Measurement System. BASIC Scores are also known as ‘CSA Scores.’ BASIC scores are calculated on a zero to 100 percentile scale, with 100 indicating the worst performance and zero indicating the best performance. 1.17 Billings “Billings” or “Billing” or “Bill” or “invoice” shall mean the statements of charges provided to Customers or Responsible Customers for services rendered by Franchisee pursuant to the terms of this Agreement. 1.18 Bin “Bin” shall mean a container with hinged lids and wheels and a capacity from two (2) to six (6) cubic yards. 1.19 Blue Container “Blue Container” shall mean a container with a blue lid and/or body used to store and Collect Source Separated Recyclable Materials or Source Separated Blue Container Organic Waste. 1.20 Bulky Waste “Bulky Waste shall mean Solid Waste that cannot or would not typically be accommodated with a Cart including specifically: 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”); electronic waste (including stereos, televisions, laptops, computers, and computer monitors, microwaves and other similar items discarded from Premises; fluorescent bulbs; household batteries; and clothing. Bulky Items include tree trunks and large branches that do not exceed two (2) feet in diameter or four (4) feet in length. Bulky Items do not include Green Waste that is bundled and placed for Collection. Bulky Items do not include car bodies, auto parts, tires, Construction and Demolition Debris, or items requiring more than two persons to remove. 1.21 C&D “C&D” shall mean Construction and Demolition Debris. A-17 8 1.22 California Code of Regulations (CCR) “California Code of Regulations” or “CCR” shall mean the State of California Code of Regulations. CCR references in this Chapter are preceded with a number that refers to the relevant title of the CCR (e.g., “14 CCR” refers to Title 14 of CCR). 1.23 CalRecycle “CalRecycle” shall mean California’s Department of Resources Recycling and Recovery. 1.24 Cart “Cart” shall mean a plastic Container with a hinged lid and wheels serviced by an automated or semi-automated truck with a capacity of no less than 32-gallons and no greater than 101-gallons. 1.25 City "City" shall mean the City of Rancho Palos Verdes and all the territory within its City Limits. 1.26 City Limits “City Limits” shall mean the territorial boundaries of the City together with all amendments and changes thereto, which boundaries are depicted on maps, incorporated in this Agreement by reference, that are kept on file in the office of the City Clerk of the City of Rancho Palos Verdes, and which are from time to time amended to reflect changes. 1.27 City Manager “City Manager” shall mean the City Manager or their designee(s) who is/are partially or wholly responsible for enforcing this Agreement. 1.28 Collect/Collection/Collecting “Collect,” “Collection,” or “Collecting” shall mean the operation of gathering together within the City, and transporting by means of a motor vehicle to the point of disposal or processing, of any Solid Waste, Recyclables, Organic Waste or other Discarded Materials. 1.29 Commercial or Commercial Business “Commercial” or “Commercial Business” shall mean a firm, partnership, proprietorship, joint-stock company, corporation, or association, whether for-profit or nonprofit, strip mall, industrial facility. For purposes of this Agreement, Commercial does not include Multi-family or Multi-family Dwellings. A-18 9 1.30 Commercial Edible Food Generators “Commercial Edible Food Generators” shall mean a Commercial Premises that generates recoverable edible food including a Tier One or a Tier Two Commercial Edible Food Generator. For the purposes of this definition, Food Recovery Organizations, and food recovery services, are not Commercial Edible Food Generators. 1.31 Commercial Generator "Commercial Generator" shall mean any legal entity that generates Solid Waste at Commercial Premises, which may include businesses; charitable or nonprofit organizations, including hospitals, educational institutions, and civic or religi ous organizations; governmental organizations, agencies, or entities; and nonresidential tenants or entities that lease or occupy space. "Commercial Generator" also includes the City and its facilities and nonresidential properties. 1.32 Commercial Premises "Commercial Premises" shall mean all occupied real property in the City, except property occupied by Federal, State or local governmental agencies which do not consent to their inclusion, and except Single-family and Multi-family Dwellings, and shall include, without limitation, wholesale and retail establishments, restaurants and other food service establishments, bars, stores, shops, offices, service stations, repair, research and development establishments, professional services, sports or recreatio nal facilities. 1.33 Community Composting “Community Composting” shall mean any activity that composts green material, agricultural material, food material, and vegetative food material, alone or in combination, and the total amount of feedstock and Compost on-site at any one time does not exceed 100 cubic yards and 750 square feet, as specified in 14 CCR Section 17855(a)(4); or as otherwise defined in 14 CCR Section 18982(a)(8). 1.34 Compactor “Compactor” shall mean any Bin or Roll-off Box that has a compaction mechanism, whether stationary or mobile. 1.35 Compliance Review “Compliance Review” shall mean a review of records of a commercial business by the City or its designee to determine compliance with this Chapter and/or State law. A-19 10 1.36 Complaint “Complaint” shall mean any complaint received by mail, email, in writing, verbally, by telephone or in person. 1.37 Compost “Compost” has the same meaning as in 14 CCR Section 17896.2(a)(4), which stated, as of the Effective Date of this Agreement, that “Compost” means the product resu lting from the controlled biological decomposition of organic Solid Wastes that are Source Separated from the municipal Solid Waste stream, or which are separated at a centralized Facility. 1.38 Compostable Plastics “Compostable Plastics” shall mean plastic materials that meet the ASTM D6400 standard for compostability, or as otherwise described in 14 CCR Section 18984.1(a)(1)(A) or 18984.2(a)(1)(C). 1.39 Construction and Demolition Debris (C&D) or C&D Materials “Construction and Demolition Debris” (C&D) or "C&D Materials" shall mean any non- hazardous Discarded Solid Waste generated materials or Recyclables generated at a Premises and is directly related to construction or demolition activities. These activities include, but are not limited to, construction, demolition, remodeling, grading, land clearing, or renovation on any Commercial, institutional or industrial building, road, driveway, walkway or other structure. C&D debris includes but is not limited to, concrete, asphalt paving, asphalt roofing, lumber, gypsum board, rock, soil and metal. 1.40 Container or Franchisee Provided Container “Container” or “Franchisee Provided Container” refers to either a Bin or a Roll -off Box provided by Franchisee to Customers. 1.41 Contamination or Contaminated Container “Contamination” or “Contaminated Container” shall mean a Container, regardless of color, that contains Prohibited Container Contaminants. 1.42 Customer “Customer” or “Customers” shall mean any Person receiving Solid Waste Collection services from Franchisee within the Franchise Area. A-20 11 1.43 Discarded Materials “Discarded Materials” shall mean a form of Solid Waste, and shall be regulated as such. For purposes of this Agreement, material is deemed to have been discarded, without regard to whether it is destined for Recycling or Disposal, and whether or not is has been separated from other Solid Wastes, in all cases where a fee or other compensation, in any form or amount, is directly or indirectly solicited from, or, levied, charged, or otherwise imposed on, or paid by, the Generator or Customer in exchange for handling services. Discarded Materials do not include Edible Food that is recovered for human consumption and is not discarded. For the purposes of this Agreement, Discarded Materials include Recyclables, Organic Materials, and C&D Materials once such materials have been placed in Containers for Collection. “Discarded Materials” means Solid Waste debris discarded by the Waste Generator or customer. 1.44 Disposal or Dispose “Disposal” or “Dispose” shall mean the final disposition of any Discarded Materials Collected by (or residue from Franchisee’s processing activities at) a permitted Landfill or other permitted Facility. 1.45 Disposal Site(s) "Disposal Site(s)" means a final end-point or permanent site for the Disposal of Solid Waste Discarded Materials, such as a Landfill, incineration Facility or final processing Facility for Recyclables. 1.46 Divert or Diversion "Divert" or "Diversion" means any combination of waste prevention (source reduction), recycling, reuse and Composting activities that reduces waste disposed at Landfills, provided such activities are recognized by CalRecycle as diversion in its determination of the City's diversion targets and compliance with Applicable Laws. 1.47 EDCO Residential Agreement “EDCO Residential Agreement” means that certain agreement between City and EDCO Disposal Corporation for exclusive Residential Solid Waste Management Services dated on or about January 18, 2022, as has been or may be amended from time to time. The scope of the EDCO Agreement includes providing service to all Single Family and Multi - family Customers. A-21 12 1.48 Edible Food “Edible Food” means food intended for human consumption. For the purposes of this Chapter edible food is not solid waste if it is recovered and not discarded. Nothing in this Chapter requires or authorizes the recovery of edible food that does not meet the food safety requirements of the California Retail Food Code (California Health and Safety Code Sections 113700 et seq.). 1.49 Effective Date “Effective Date” means the date on which this Agreement becomes binding upon the Parties, which is the date when the latter of the Parties has executed this Agreement. 1.50 Electronic or E Waste “Electronic Waste” or “E Waste” shall mean discarded electronic equipment and includes, but is not limited to, stereos, televisions, CRTs, computers and computer monitors, VCRs, cellular phones, fax machines, household copiers, computer printers, video game consoles, other items with electric plugs that are banned from landfilling . Electronic Waste is a subset of Universal Waste. 1.51 Environmental Laws “Environmental Laws” means all Federal and State statutes 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 Section 9601, et seq.; the Resource Conservation and Recovery Act, 42 USC Section 6901, et seq.; the Federal Clean Water Act, 33 USC Section 1251, et seq.; the Toxic Substance Control Act, 15 USC Section 2601, et seq.; the Occupational Safety and Health Act, 29 USC Section 651, et seq.; the California Hazardous Waste Control Act, California Health and Safety Code Section 25100, et seq.; the Carpenter -Presley-Tanner Hazardous Substance Account 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 of 1986, California Health and Safety Code Section 25249.5, et seq.; all as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. 1.52 Excluded Waste “Excluded Waste” means Hazardous Substances, Hazardous Waste, Infectious Waste (as defined in 14 CCR Section 17225.36), designated waste, volatile, corrosive, Medical Waste, regulated radioactive waste, and toxic substances or material that facility operator(s), which receive materials from the City and its Waste Generators, reasonably believe(s) would, as a result of or upon acceptance, transfer, Processing, or Disposal, be A-22 13 a violation of local, State, or Federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that cannot be disposed of in Class III Landfills or accepted at the Facility by permit conditions, waste that in the City’s opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose the City to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in Single-family or Multi-family Solid Waste. 1.53 Facility(ies) “Facility(ies)” means any plant, site, or operation used for the purpose of handling Discarded Materials, including, but not limited to, Disposal, Transfer, Recycling, Composting, and Processing facilities or operations. 1.54 Food Recovery “Food Recovery” means actions to collect and distribute food for human consumption which otherwise would be disposed. 1.55 Food Recovery Organization “Food Recovery Organization” means an entity that primarily engages in the collection or receipt of Edible Food from Commercial Edible Food Generators and distributes that Edible Food to the public for Food Recovery either directly or through other entities, including, but not limited to: a) A food bank as defined in Section 113783 of the Health and Safety Code; b) A nonprofit charitable organization as defined in Section 113841 of the Health and Safety code; and c) A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code. If the definition in 14 CCR Section 18982(a)(25) for Food Recovery Organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this Agreement. 1.56 Food Recovery Service “Food Recovery Service” means a Person or entity that collects and transports Edible Food from a Commercial Edible Food Generator to a Food Recovery Organization or other entities for Food Recovery. A-23 14 1.57 Food Scraps “Food Scraps” means all discarded food such as, but not limited to, fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and egg shells. Food Scraps excludes fats, oils, and grease when such materials are source separated from other Food Scraps. 1.58 Food-Soiled Paper “Food-Soiled Paper” means compostable paper material that has come in contact with food or food-related liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons. 1.59 Food Waste “Food Waste” shall mean Food Scraps, Food-soiled Paper, and Compostable plastics. 1.60 Franchisee “Franchisee” shall mean the signatory entity identified in the preamble to this Agreement. 1.61 Franchise Area “Franchise Area” shall mean all Premises within the City Limits, including Premises which may be annexed and thereby added to the City Limits following the Effective Date. 1.62 Franchise Fee “Franchise Fee” shall mean that consideration paid by Franchisee to the City as consideration for the grant of non-exclusive franchise effected by the Agreement and as described in Section 9.1. 1.63 Generator “Generator” means any Person whose act or process produces Solid Waste or whose act first causes Solid Waste to become subject to regulation. 1.64 Gray Container “Gray Container” means a Container with a gray or black lid and/or body used to store and Collect Gray Container Waste. A-24 15 1.65 Gray Container Waste “Gray Container Waste” means refuse or mixed waste that is Collected in a Gray Container that is part of Collection service that prohibits the placement of Green or Blue Container Waste in the Gray Container. 1.66 Green Container “Green Container” means a Container with a green lid and/or body used for storage and collection of Source Separated Green Container waste. 1.67 Green Container Waste “Green Container Waste” means Green Waste, Organic Waste, Food Scraps, food-soiled Paper, and compostable plastic that is collected in a Green Container that is part of a service that prohibits the placement of Refuse, mixed waste, and Non-organic Recyclables in the Green Container. 1.68 Green Waste or Yard Waste "Green Waste" or "Yard Waste" means yard waste such as leaves, grass clippings, brush, branches, mulch, and other forms of organic materials generated from landscapes or gardens, separated from other Solid Waste. 1.69 Gross Receipts “Gross Receipts” means any and all revenue received from Billings by Franchisee, and compensation in any form, of Franchisee or subsidiaries, parent companies or other Affiliates of Franchisee, for the Collection and Transportation and Disposal of Solid Waste pursuant to this Agreement, in accordance with generally accepted accounting principles, including, but not limited to, monthly customer fees for Collection of Solid Waste, without subtracting Franchise Fees or AB 939 Fees or any other cost of doing business. 1.70 Hauler Route “Hauler Route” shall mean the designated itinerary or sequence of stops for each segment of the City’s Collection service area. 1.71 Hazardous Substance “Hazardous Substance” shall mean any of the following: (a) any substance defined, regulated or listed (directly or by reference) as “Hazardous Substances”, “hazardous materials”, “hazardous wastes”, “toxic waste”, “pollutant” or “toxic substances” or A-25 16 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 Section 9601, et seq.; (ii) the Hazardous Materials Transportation Act, 49 USC Section 5101, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC Section 6901, et seq.; (iv) the Clean Water Act, 33 USC Section 1251, et seq.; (v) California Health and Safety Code Sections 25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC Section 7401, et seq.; and (vii) California Water Code Section 13050; (b) a ny amendments, rules, or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereinafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste, or pollutant identified as hazardous or to xic or regulated under any other applicable Federal, State, and local environmental laws currently existing or hereinafter enacted, including without limitation, friable asbestos, polychlorinated biphenyl (“PCBs”), petroleum, natural gas and synthetic fuel products, and by-products. 1.72 Hazardous Waste “Hazardous Waste” shall mean and includes waste defined as hazardous by Public Resources Code Section 40101 as it now exists or may subsequently be amended, namely, a waste or combination of wastes, which because of its quantity, concentration, or physical, chemical or infectious characteristics, may do either of the following: (i) cause or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; (ii) pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported, or disposed of, or otherwise managed. "Hazardous Waste" includes extremely Hazardous Waste and acutely Hazardous Waste, and any other waste as may hereafter from time to time be designated as hazardous by the Environmental Protection Agency ("EPA") or other agency of the United States Government, or by the California Legislature or any agency of the State of California empowered by law to classify or designate waste as hazardous, extremely hazardous or acutely hazardous. 1.73 Infectious Waste "Infectious Waste" shall mean waste capable of producing an infection or pertaining to or characterized by the presence of pathogens including, but not limited to, certain wastes generated by medical practitioners, hospitals, nursing homes, mortuaries, taxidermists, veterinarians, veterinary hospitals and medical testing labs. See also, 14 CCR Section 17225.36. A-26 17 1.74 Holiday “Holiday” shall mean New Years’ Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas and, with prior City written approval, any additional official Holidays declared in the future by the State or Federal government that apply to municipalities. Holidays shall also mean any additional Holidays coinciding with the Holiday schedule observed by the County to the extent such County - observed Holiday results in the closure of the County' s Disposal Sites. 1.75 Landfill “Landfill” shall mean a “Solid Waste Landfill” defined by Public Resources Code Section 40195.1. 1.76 Large Event “Large Event” shall mean an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than 2,000 individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. 1.77 Large Venue “Large Venue” shall mean a permanent venue facility that annually seats or serves an average of more than 2,000 individuals within the grounds of the facility per day of operation of the venue facility. For purposes of 14 CCR, Division 7, Chapter 12 and this Agreement, a venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetr ack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. For purposes of 14 CCR, Division 7, Chapter 12 and this Agreement, a site under common ownership or control that includes more than one Large Venue that is contiguous with other Large Venues in the site, is a single Large Venue. 1.78 Manure "Manure" shall mean animal excrement especially that of livestock and domestic farm animals, and secondary materials used for bedding or sanitary purposes. A-27 18 1.79 Materials Recovery Facility “Materials Recovery Facility” shall mean a permitted Solid Waste Facility where Solid Wastes or Recyclables, or Organic Materials and other Discarded Materials are sorted or separated for the purposes of Recycling, Processing or Composting. 1.80 Medical Waste “Medical Waste” shall mean any discarded material that is generated or has been used in the diagnosis, treatment, or immunization of human beings or ani mals, or research pertaining thereto, and shall include, but not limited to, biomedical, biohazardous and medical waste, or other Solid Waste resulting from medical activities or services any State or Federal law or regulation, all as currently enacted or subsequently amended. 1.81 Multi-family or Multi-family Dwelling. “Multi-family” or "Multi-family Dwelling" means a Residential structure with five (5) or more dwelling units. Multi-family Premises do not include hotels, motels, or other transient occupancy facilities, which are considered Commercial Businesses. 1.82 Mulch “Mulch” means a layer of material applied on top of soil, and, for the purposes of the Agreement, Mulch shall conform with the following conditions, or conditions as otherwise specified in 14 CCR Section 18993.1(f)(4): a) Meets or exceeds the physical Contamination, maximum metal concentration, and pathogen density standards for land application specified in 14 CCR Section 17852(a) (24.5) (A)(1) through (3). b) Was produced at one or more of the following types of Facilities: i. A compostable material handling operation or Facility as defined in 14 CCR Section 17852(a)(12), that is permitted or authorized under 14 CCR, Division 7, other than a chipping and grinding operation or Facility as defined in 14 CCR Section 17852(a)(10); ii. A Transfer/Processing Facility or Transfer/Processing operation as defined in 14 CCR Section 17402(a)(30) and (31), respectively, that is permitted or authorized under 14 CCR, Division 7; or iii. A Solid Waste Landfill as defined in PRC Section 40195.1 that is permitted under 27 CCR, Division 2. A-28 19 1.83 Non-Compostable Paper “Non-Compostable Paper” includes, but is not limited to, paper that is coated in a plastic material that will not breakdown in the composting process . 1.84 Non-Exclusive Franchise Agreement “Non-Exclusive Franchise Agreement” shall mean this Agreement entered into between the Franchisee and the City where the Franchisee agrees to Collect Discarded Materials, and subsequently Transport, Transfer, Process, and/or Dispose of the Discarded Materi als that Franchisee has Collected in the City. 1.85 Non-Organic Recyclables “Non-Organic Recyclables” shall mean non-putrescible and non-hazardous Recyclables waste including, but not limited to, bottles, cans, metals, plastics, and glass . Non-Organic Recyclables are a subset of Source Separated Recyclable Materials. 1.86 On-Call “On-Call” shall mean service provided by Franchisee that is not regularly scheduled or is scheduled more than twenty-four (24) hours in advance. On-Call service is initiated by a customer by calling, writing, emailing, or requesting the service in person at Franchisee’s office. 1.87 Organic Waste “Organic Waste” shall mean Solid Waste containing material originated from living organisms and their metabolic waste products, including but not limited to non -edible food, nonhazardous wood waste, Food-soiled Paper, Food Scraps, landscape and pruning waste, Green Waste, organic textiles and carpets, lumber, wood, paper products, Printing and Writing Paper, Manure, biosolids, digestate, and sludges. 1.88 Organic Waste Generator “Organic Waste Generator” means a person or entity that is responsible for the initial creation of Organic Waste. 1.89 Owner "Owner" shall mean the person, organization or corporation holding the legal title to the real property constituting the Premises to which Solid Waste and Recycling management services are provided. For the purposes of provisions in this Agreement pertaining to the sending of notices, Billings or other communications by Franchisee to an Owner, A-29 20 Franchisee may regard as the Owner the Person, organization, corporation or other entity shown in the records of the Assessor of the County or as may be indicated by documents recorded in the Office of the Recorder of the County. “Owner” includes the Owner’s authorized representative(s). 1.90 Party or Parties “Party” or “Parties” refers to the City and Franchisee, individually or together. 1.91 Person “Person” has the same meaning as in Public Resources Code Section 40170, which states, as of the Effective Date of this Agreement, that a Person includes an individual , firm, limited liability company, association, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever. “Person” means any individual, legal entity, association, firm, partnership, corporation, or any other group or combination thereof acting as a unit. 1.92 Premises “Premises” shall mean any land, or building in the City where Solid Waste, Recyclable Material, or Organic Waste or other Discarded Material is generated or accumulated. 1.93 Printing and Writing Papers “Printing and Writing Papers” include, but are not limited to, copy, xerographic, watermark, cotton fiber, offset, forms, computer printout paper, white wove envelopes, manila envelopes, book paper, note pads, writing tablets, newsprint, and other uncoated writing papers, posters, index cards, calendars, brochures, reports, magazines, and publications. 1.94 Process, Processed, or Processing “Process”, “Processed”, or “Processing” shall mean the controlled separation, recovery, volume reduction, conversion, or Recycling of Discarded Materials. 1.95 Prohibited Container Contaminants “Prohibited Container Contaminants” shall mean the following: (i) Discarded Materials placed in the Blue Container that are not identified as acceptable source separated Recyclable Materials for the City’s Blue Container; (ii) Discarded Materials placed in the Green Container that are not identified as acceptable source separated Green Container Organic Waste for the City’s Green Container; (iii) Discarded Materials placed in the Gray A-30 21 Container that would otherwise be acceptable Source Separated Recyclable Materials, (iv) Excluded Waste placed in any Container. 1.96 Property Owner “Property Owner” shall mean the owner of real property Premises. 1.97 Putrescible Waste “Putrescible Waste” shall mean wastes that are capable of being decomposed by micro- organisms with sufficient rapidity as to cause nuisances because of odors, gases, or other offensive conditions, and includes materials such as, but not limited to Food Waste, offal, and dead animals. 1.98 Reasonable Business Effort "Reasonable Business Efforts" shall mean those efforts a reasonably prudent business person would expend under the same or similar circumstances in the exercise of such Person's reasonable business judgment and standards in the industry, intending in good faith to take steps calculated to satisfy the obligation which such Person has undertaken to satisfy. 1.99 Recyclables or Recyclable Materials “Recyclables” or “Recyclable Materials” shall mean Commercial Source Source-separated byproducts of some potential economic value, set aside, handled, packaged, or offered for Collection in any manner different from Refuse. 1.100 Recycle/Recycling “Recycle” or “Recycling” means the process of Collecting, sorting, cleansing, treati ng, and reconfiguring materials for the purpose of returning them to the economic mainstream in the form of raw material for new, Reused, or reconstituted products that meet the quality standards necessary to be used in the marketplace. Recycling includes processes deemed to constitute a reduction of Landfill Disposal pursuant to 14 CCR, Division 7, Chapter 12, Article 2. Recycling does not include gasification or transformation as defined in Public Resources Code Section 40201. 1.101 Refuse “Refuse” means putrescible and non-putrescible wastes, including garbage, trash, rubbish, and mixed waste. A-31 22 1.102 Refuse Impact Reduction Laws "Refuse Impact Reduction Laws” shall mean AB 939, AB 32, AB 341, AB 1826, SB 1383 and related laws pertaining to the environmental impacts of Solid Waste, as may be enacted or amended in the future. 1.103 Remodel "Remodel" or "Remodeling" shall refer to any construction or demolition project (other than mere repair work) requiring the issuance of a building permit or such construction and demolition project that generates for disposal bulky structural items, appliances (household or Commercial) like showers, tubs, toilets, ovens, stoves, cabinetry and built - in units, roofing materials, etc., and other C&D Material. 1.104 Renewable Natural Gas (RNG) “Renewable Natural Gas” or “RNG” means gas derived from Organic Waste that has been diverted from a California Landfill and processed at an anerobic digestion facility that is permitted or otherwise authorized by Title 14 of the CCR to recycle Organic Waste. 1.105 Roll-off Box “Roll-Off Box” shall mean a Discarded Materials Solid Waste Collection container of 10- yards to 40-yards capable of being loaded via winch onto a roll-off vehicle equipped with rails. 1.106 Route Reviews “Route Reviews” shall mean a visual inspection of Containers along a Hauler Route for the purpose of determining Container Contamination, and may include mechanical inspection methods such as the use of cameras. 1.107 SB 1383 “SB 1383” shall mean Senate Bill 1383 of 2016 approved by the Governor on September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and Safety Code, and added Chapter 13.1 (commencing with Section 42652) to Part 3 of Division 30 of the Public Resources Code, establishing methane emissions reduction targets in a statewide effort to reduce emissions of short-lived climate pollutants as amended, supplemented, superseded, and replaced from time to time. A-32 23 1.108 SB 1383 Regulations “SB 138 Regulations” or “SB 1383 Regulatory” refers to the Short-Lived Climate Pollutants (SLCP): Organic Waste Reductions regulations developed by CalRecycle and adopted in 2020 that created Chapter 12 of 14 CCR, Division 7 and amended portions of regulations of 14 CCR and 27 CCR, as they may be amended, or revised from time to time. 1.109 Single-family ‘Single-family’ means any residential dwelling or premises with fewer than five (5) dwelling units. 1.110 Self-hauler (or Self-haul) “Self-hauler” or “Self-haul” shall mean a Person who hauls Solid Waste, Recyclables, Organic Waste, or recovered material they have generated to another Person, or as otherwise defined in 14 CCR Section 18982(a)(66). Self-hauler also includes a Person who Back-hauls materials waste. 1.111 Service Level “Service Level” refers to the number and size of a Customer’s Container(s) and the frequency of Collection service, as well as ancillary services such as lock/unlock service, Container push/pull service, etc. 1.112 Solid Waste “Solid Waste” means all putrescible and non-putrescible solid, semisolid wastes, including garbage, trash, Refuse, paper, rubbish, ashes, industrial wastes, Construction and Demolition Debris, discarded white goods, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes. ‘Solid Waste’ includes Recyclable Materials, Organic Waste, Green Waste, Construction and Demolition Debris, and Bulky Waste. Solid Waste does not include Hazardous Waste, or untreated Medical Waste. 1.113 Solid Waste Enterprise “Solid Waste Enterprise” shall mean any individual, partnership, joint venture, unincorporated private organization, or private corporation regularly engaged in the business of providing Solid Waste Collection, Transportation and Processing services). Services A-33 24 1.114 Source Separated “Source Separated” shall mean materials, including commingled Recyclable Materials and/or Organic Waste, that have been separated or kept separate from the Solid Waste stream, at the point of generation, for the purpose of additional sorting or processing to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products. 1.115 Source Separated Blue Container Organic Waste (SSBCOW) “Source Separated Blue Container Organic Waste” or “SSBCOW” shall mean Source Separated non-putrescible Organic Wastes that can be placed in a Blue Container that is limited to the Collection of those Organic Wastes and Non-organic Recyclables. 1.116 Source Separated Green Container Organic Waste (SSGCOW) “Source Separated Green Container Organic Waste” or “SSGCOW” shall mean Source Separated Organic Waste that can be placed in a Green Container that is specifically intended for the separate Collection of Organic Waste by the Organic Waste Generator, excluding Source Separated Blue Container Organic Waste, carpets, Non-compostable Paper, and textiles. 1.117 Source Separated Recyclable Materials “Source Separated Recyclable Materials” shall mean Recyclable Materials separated on Commercial Premises from Solid Waste for the purpose of sale, not mixed with or containing more than incidental or minimal Solid Waste, and having a market value. 1.118 Split Container “Split Container” shall mean Container that is split or divided into segregated sections, instead of an entire Container, for the purpose of collecting Refuse and Recyclables in the same Container by different Collection vehicles. 1.119 State “State” means the State of California. 1.120 Term “Term” means the duration of this Agreement, including extension periods if granted, as provided for in Section 3.9. A-34 25 1.121 Temporary Bin Service. “Temporary Bin Service” means Solid Waste Collection Services provided on a project basis, such as Construction and Demolition projects and occasional clean -up projects using a Roll-off Box or Bin 1.122 Tier One Commercial Edible Food Generators . “Tier One Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982: a) Supermarket. b) Grocery Store with a total facility size equal to or greater than 10,000 square feet. c) Food Service Provider. d) Food Distributor. e) Wholesale Food Vendor. If the definition in 14 CCR Section 18982(a)(73) of Tier One Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(73) shall apply to this Agreement. 1.123 Tier Two Commercial Edible Food Generators “Tier Two Commercial Edible Food Generator” means a Commercial Edible Food Generator that is one of the following, each as defined in 14 CCR Section 18982: a) Restaurant with 250 or more seats, or a total facility size equal to or greater than 5,000 square feet. b) Hotel with an on-site food facility and 200 or more rooms. c) Health facility with an on-site food facility and 100 or more beds. d) Large Venue. e) Large Event. f) A State agency with a cafeteria with 250 or more seats or total cafeteria facility size equal to or greater than 5,000 square feet. g) A local education agency with an on-site food facility. A-35 26 If the definition in 14 CCR Section 18982(a)(74) of Tier Two Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall apply to this Agreement. 1.124 Transfer “Transfer” means the act of transferring Discarded Materials Collected by Franchisee from Franchisee’s Collection vehicles into larger vehicles at a transfer facility for Transport to other Facilities for Processing or Disposing of such materials. Transfer allows for removal of materials excluded or prohibited from handling at the Transfer Facility (e.g., removal of Hazardous Waste). 1.125 Transformation “Transformation” means incineration, pyrolysis, distillation, gasification, or biological conversion other than Composting. “Transformation” does not include Composting. 1.126 Transportation or Transport “Transportation” or “Transport” means the act of conveying Collected materials from one location to another. 1.127 Universal Waste “Universal Waste” means hazardous wastes that are widely produced by households and different types of businesses including televisions, comp uters and other electronic devices as well as batteries, fluorescent lamps, mercury thermostats, and other mercury containing equipment. Universal Waste is handled in a manner that differs from the requirements for most hazardous wastes. Universal Waste is not to be placed for Collection with Solid Waste. Universal Wastes are defined by 22 CCR Subsections 66273.1 through 66273.9. 1.128 Work Days “Work Days” or “Working Days” means days on which the Franchisee is required to provide regularly scheduled Collection services under this Agreement. 1.129 White Goods “White Goods” shall mean inoperative and discarded refrigerators, microwave ovens, ranges, water heaters, freezers, and other similar appliance. A-36 27 SECTION 2. Representations and Warranties of Franchisee 2.1 Corporate Status Franchisee is a company duly organized, validly existing and in good standing under the laws of the State of California. Franchisee is qualified to transact business in the State of California and has the corporate power to own its properties and to carry on its business as now owned and operated and as required by this Agreement. 2.2 Corporate Authorization The Persons executing this Agreement on behalf of the Franchisee hereto warrant that (i) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (ii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iii) that entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. 2.3 Accuracy of Representation and Warranties The representations and warranties made by the Franchisee in this section are true and correct on and as of the Effective Date of this Agreement. A-37 28 SECTION 3. Grant of Franchise; Scope of Franchise; Exclusions 3.1 Grant and Acceptance of Agreement The City grants to Franchisee, and the Franchisee shall have during the Term of this Agreement, the non-exclusive franchise, right, license and privilege except as provided in Section 3.6 below to engage in the business of Collecting, Transporting, Transferring, Processing, Recycling, treating, Diverting, converting, and Collecting for Disposal all Solid Waste, and Recyclable Materials and Organic Waste generated by Commercial Premises, and to provide On-Call Roll-off Box and Bin Services to Commercial Premises, within the City of Rancho Palos Verdes Franchise Area. It is expressly understood that the Solid Waste and Recycling management business is conducted by Franchisee and not City, and while City grants the right to conduct the business within the terms of this Agreement, the Franchisee must determine what personnel to employ, terms and conditions of employment, what equipment to utilize and at what cost, rates and charges to establish for Customers, and all means, methods, costs, obligations and mechanisms to perform the terms of the franchise. 3.2 Annexations This Agreement shall extend to any territory annexed to the City during the Term that is not covered by an existing Solid Waste permit, license, agreement or franchise granted by another public entity, except to the extent that Collection by Franchisee within that annexed territory would violate the provisions of Public Resources Code Section 49520. In such event, this Agreement shall become effective as to such area at the earliest possible date permitted by law, and City agrees that it shall cooperate with Franchisee to fulfill any requirement necessary for Franchisee to serve the annexed area consistent with this Section. 3.3 Rights in Annexed Territories It is the intention of the Parties that, subject to all of the limitations to the scope of this agreement set forth in Section 3.3, the nonexclusive franchise granted herein shall apply to any property incorporated into the City Limits during the Term hereof; provided, however, the exercise of the rights granted herein within annexed territories shall be limited by and subject to any legal right held by any Solid Waste enterprise to continue to operate (whether pursuant to a pre-existing Solid Waste permit, license, agreement, franchise, or otherwise), so long as any such legal right shall continue to exist. A-38 29 3.4 Acknowledgment that Modification to Rights is Occurring If Franchisee has a pre-existing permit, license, agreement, franchise or other rights to provide services in the City, including because of being a Franchisee under any prior agreement with the City, then Franchisee expressly acknowledges that any change or modification to the scope of such rights that may be effectuated by this Agreement is occurring pursuant to Public Resources Code Section 49523, is included herein upon mutually satisfactory terms, and is part of the consideration for entering into this Agreement. Moreover, Franchisee expressly acknowledges that any change in scope of such prior rights is occurring pursuant to Public Resources Code Section 49523, and is not a waiver of rights set forth in Public Resources Code Section 49520 which would be subject to the provisions of Public Resources Code Section 49524. Franchisee acknowledges that City has advised it that if it has rights pursuant to Public Resources Code Section 49520 which it does not wish to modify by entering this Agreement, it may choose to continue to operate in City pursuant to such rights rather than enter into this Agreement. 3.5 “Five-year Notice” Pursuant to Public Resources Code Section 49520 The rights granted pursuant to the terms hereof shall expire upon the end of the Term of this Agreement. Franchisee shall have no right to continue to provide services in City pursuant to Public Recourses Code Section 49520 (i. e., a “five-year notice”), or otherwise, following the end of the Term hereof unless a subsequent franchise, contract, or permit is granted to Franchisee by City, or unless this Agreement is amended to provide such rights. This provision is intended to, and shall serve as the notice contemplated by Section 49520 with respect to the franchise rights granted herein. 3.6 Scope of Franchise; Exceptions The franchise granted to Franchisee shall be non-exclusive within City limits such that Franchisee and all other contractors to whom City may grant a franchise (collectively, "franchise haulers"), shall be the only providers of general Solid Waste, Recyclable Materials, and Organic Waste hauling services to City’s Commercial Customers. To this end, at all times during the Term of this Agreement the City shall require that all Solid Waste, Recyclable Materials and Organic Waste Collected from Commercial Premises for a fee, service charge, or other consideration be Collected by a franchise hauler, with the following exceptions: a) Solid Waste Collection Services for governmental agencies other than City, which may have facilities in City, but over which City has no jurisdiction in connection with the regulation of Solid Waste. A-39 30 b) The sale or donation of source-separated Recyclable Material by the Waste Generator or Customer to any Person other than Franchisee; provided, however, to the extent permitted by law, if the Waste Generator or Customer is required to pay monetary or nonmonetary consideration for the Collection, Transportation, Transfer, or Processing of Recyclable Material, then it shall not be considered a sale or donation. c) Recyclables delivered to a recycling center or drop -off station by the Waste Generator for recycling under the California Beverage Container Recycling Litter Reduction Act, Section 14500, et seq. d) Green Waste removed from a Premise by a gardening, landscaping, or tree trimming contractor, utilizing its own equipment, as an incidental part of a total service offered by that Contractor rather than as a hauling service. e) The Collection, Transfer, Transport, Recycling, Processing, and Disposal of hazardous substances, Hazardous Waste, untreated Medical Waste, and radioactive waste regardless of its source. f) The Collection, Transfer, Transport, Recycling, and Processing of animal byproducts, fats, oils, or grease to be rendered and used as tallow. g) City Collection Nothing in this Agreement prohibits the City, through City officers or employees in the normal course of their City employment, from engaging in casual or emergency Collection, removal, Disposal or Diversion of Solid Waste. h) Self-hauling Solid Waste, including Recyclable Materials and Green Waste, which is removed from any Premises by the Waste Generator, and which is Transported personally by such Waste Generator (or by his or her full -time employees) to a Processing Facility or Disposal site in a manner consistent with all Applicable Laws and regulations. i) Remodeling Construction Contractors -The Collection, Transportation and Disposal by a construction contractor of C&D Material from Remodeling jobs which are generated as an incidental part of providing such Remodeling services, provided that the construction contractor is not a hauling service or Solid Waste Enterprise, does not separately or additionally charge for the incidental service of removing, Transporting or Disposing (except for tipping fee) of the C& D Material, and utilizes only his/ her own employees and equipment to Collect, Transport and Dispose of the C& D Material. Recycling Materials-Recyclable Materials, Organic Waste that A-40 31 are source separated at any Premises by th e Waste Generator and donated to youth, civic or charitable organizations. Recyclables delivered to a recycling center or drop-off station by the Waste Generator for recycling under the California Beverage Container Recycling Litter Reduction Act, Section 14500, et seq. j) Junk Removal- Franchisee's franchise does not preclude the Collection, Processing and/or Transport of junk by a duly licensed non-franchise privately- contracted junk removal service company (e. g., 1-800 Got Junk). Junk removal service companies provide staff for removal of junk, and do not place Containers for the storage of materials. k) Edible Food-Edible Food that which is Collected from a Waste Generator by other Person (s), such as a Person from a Food Recovery Organization or Food Recovery Service, for the purposes of Food Recovery; or which is Self-hauled by the Customer to another Person(s), such as a Person from a Food Recovery Organization, for the purposes of Food Recovery, regardless of whether the Customer donates, sells, or pays a fee to the other Person(s) to collect or receive the Edible Food. l) Food and Beverage Byproducts-The hauling of byproducts from the Processing of food or beverages and use of such material as animal feed if the byproducts originate from agricultural or industrial sources, do not include animal (including fish) processing byproducts, are Source Separated by the Waste Generator of the byproducts, and are not discarded; and, if the use as animal feed is in accordance with 14 CCR Section 18983.1(b)(7). m) On-site or Community Composting- Organic Waste Composted or otherwise legally managed at the Premises site where it is generated (e.g., backyard Composting, or on-site anaerobic digestion) or at a Community Composting site. n) Franchisee's rights and services provided hereunder do not extend to those exclusive franchise rights set forth in the EDCO Residential Agreement. 3.7 Legally-Required Exemptions Franchisee's franchise rights shall be limited by any other exemption created by City, State, or Federal law. A-41 32 3.8 Effective Date; Commencement of Services This Agreement shall become effective at the “Effective Date.” However, excep t where specified, the provision of Solid Waste and Recycling Collection and other services by Franchisee, shall commence on July 19, 2022 (the “Commencement Date”). 3.9 Term and Extended Term Unless earlier terminated in accordance with Article 1.1 of this Agreement, this Agreement shall continue in full force and effect from the Effective Date until July 7, 2027. 3.10 Conditions to Effectiveness of Agreement The satisfaction of each and all the conditions set out below, each of which may be waived in whole or in part by City in writing, is a condition precedent to the effectiveness of this Agreement, and a condition of Franchisee's continued right to the benefits conveyed in this Agreement: a) Accuracy of Representation - All representations and warranties made by Franchisee and set forth in this Agreement shall be accurate, true, and correct on and as of the Effective Date of this Agreement and shall remain true throughout its Term, including any extension, unless waived by the City. b) Absence of Litigation - There shall be no existing litigation or administrative proceedings pending in any court or venue challenging the award of this Agreement to Franchisee or the execution of this Agreement or seeking to restrain or enjoin its performance. c) No Litigation Adverse to Franchisee -There is no action, suit, proceeding, or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency, or instrumentality pending or, to the best of Franchisee's knowledge, threatened, by or a gainst the Franchisee wherein any unfavorable decision, ruling, or finding, in any single case or in the aggregate, would materially adversely affect the performance by the Franchisee of its obligations under this Agreement or in connection with the transa ctions contemplated by this Agreement, or which, in any way, would adversely affect the validity or enforceability of this Agreement or any other agreement or instrument entered into by the Franchisee in connection with the transactions contemplated by this Agreement. Furnishing of Insurance, bond, and letter of credit - Franchisee shall have furnished, and shall maintain in good standing throughout the Term and any extension, the evidence of insurance, letter of credit, and performance bond required by this Agreement. A-42 33 d) Effectiveness of City Council Action - City Council's action approving this Agreement shall have become effective pursuant to California law and the time for any legal challenge shall have expired. e) Payment of Fees and Cost- Franchisee shall have made payment to City of all fees, costs and other payments due as more fully set forth in Section 9. f) Notification - City has notified Franchisee in writing that all conditions to effectiveness have been met and notified Franchisee of Effective Date. 3.11 Delegation of Authority The administration of this Agreement by the City shall be under the supervision and direction of the City Manager or his/her designee and the actions specified in this Agreement shall be taken by the City Manager or his/her designee. A-43 34 SECTION 4. General Agreement 4.1 Ownership of Discarded Materials City and Franchisee understand and agree that it is the Franchisee, and not City, who will arrange to Collect Discarded Materials Solid Waste, that City has not, and, by this Agreement does not, instruct Franchisee on its Collection means and methods, nor supervise the Collection process; nor do the Parties intend to place title to Discarded Materials Solid Waste collected by Franchisee in City. Rather, the Parties intend that whatever, if any, title in and to Discarded Materials the Solid Waste that is Collected by Franchisee that otherwise might exist in or with City in the absence of this Agreement is hereby transferred to Franchisee; and further that if Franchisee gains title to such Materials Solid Waste, it is by operation of law and agreement with its Customers and is not the result of this Agreement. At no time does City obtain any right of ownership or possession of Solid Waste, Recyclable Materials, and Organic Waste placed for Collection, and nothing in this Agreement shall be construed as giving rise to any inference that City has any such rights. City and Franchisee agree that, for the purposes of the Uniform Commercial Code and all other laws imposing liability for defective products, it is the Franchisee, and not City, that which is to be considered the merchant of goods recycled pursuant to this Agreement. Subject to the provisions of this Agreement, Franchisee shall have the right to retain, Recycle, Process, Dispose, and otherwise use Discarded Materials Solid Waste Collected pursuant to the terms hereof in any lawful fashion or for any lawful purpose; and, further, shall have the right to retain any benefit resulting from its right to retain, Recycle, Process, Dispose of, or reuse the Discarded Materials Solid Waste that which it Collects. 4.2 Subcontracting This Agreement, or any portion thereof, shall not be subcontracted except with the prior written consent of the City, which consent shall not be unreasonably withheld. No such consent shall be construed as making the City a Party to such subcontract, or subject the City to liability of any kind to any subcontractor. Franchisee shall submit all subcontracts for review and approval by the City and any permitted subcontract shall terminate on or before the termination of this Agreement. All subcontractors shall be licensed as required under State, Federal and local laws and regulations to perform their subcontracted work and obtain and maintain a City business license if required. Franchisee shall remain otherwise liable for the full and complete performance of its obligation hereunder. No subcontract shall be valid unless the subcontractor has assumed, in writing, all of the subcontracted obligations in this Agreement. Franchisee shall remain otherwise liable for the full and complete performance of its obligations in this Agreement. A-44 35 SECTION 5. COLLECTION SERVICES 5.1 General Standards. Franchisee shall provide Bin Collection Service to Commercial Customers that use Carts and Bins. For each Commercial Customer account serviced by Franchisee, the Franchisee shall provide the full three-stream Collection service as required by RPV municipal code Chapter 8.20. (Unless Customer has received a City -approved waiver). All three Containers must be serviced by the same Franchisee. Customers shall use Franchisee Provided Containers only. Franchisee Provided Containers shall meet the color and labeling requirements for SB 1383. Franchisee shall Collect and remove all Refuse, Recyclables, and Organic Waste that is placed in Carts and Bins from Commercial Premises. Customers may lease compaction or other ancillary Solid Waste Collection equipment from Franchisee or third parties. Franchisee shall replace empty Containers to their original location with gates or doors of enclosures secured after Collection is completed. A Bin shall be considered properly located for Collection if it is feasibly accessible by Franchisee’s front-loading Collection vehicles. A Cart shall be considered properly located for Collection if it is feasibly accessible by Franchisee’s automated side-loading Collection vehicles. Furnishing of Services. a) The work to be performed pursuant to this Agreement shall include: the furnishing of all labor, materials and equipment necessary for, and the scheduled Collection of all Solid Waste and Recyclables, and Organics from, Commercial Premises within the City where Franchisee has a valid subscribed account with the Commercial Premises Owner(s) for such services; and b) The furnishing of all labor, materials and equipment necessary for the Temporary provision of Bins and Roll-off Boxes for Solid Waste and Recyclables, and Organics to Commercial Premises upon request from Customers and the subsequent Collection of the same in accordance with a schedule to be determined by the Franchisee and Customer, to the extent not in conflict with the EDCO Agreement or other such agreements with other Solid Waste Enterprise franchised haulers. Enterprises. All services shall be provided according to the terms of this Agreement. Franchisee shall own or lease and maintain at its expense all equipment necessary to perform its duties as provided for under this Agreement, including sufficient office-to-field communication equipment. All work shall be accomplished in a courteous, thorough and workmanlike manner and adhere to the highest standards consistent with the best practice s in the industry. As of the Effective Date of this Agreement, Franchisee shall not be required to A-45 36 Collect materials unless they have been properly placed in Franchisee Provided Containers unless otherwise specifically stated in this Agreement, including but not limited to Bulky Waste, Christmas trees and Green Waste. Notwithstanding the foregoing, the Parties hereto acknowledge that a need may arise for Franchisee to Collect materials that are either placed in alternative, non-Franchisee Provided Containers or that are placed directly for Collection without containment; to this end, the Parties may meet and confer in good faith in order to reach an accord as to how such needs may be met. Any program specifically requiring Franchisee to Collect materials from alternative Containers or to Collect uncontained materials shall be memorialized in writing executed by each Party and in compliance with Applicable Laws. 5.2 Commercial Collection- General 5.2.1 Automated Rollout of SB 1383-compliant Services For all Commercial Customers that do not qualify for a waiver pursuant to Section 6.8, Franchisee shall automatically enroll those Customers in Recycling and Organics Recycling service such that no later than October 1, 2022. Franchisee shall provide a three- Container Collection program to all Commercial Customers that do not qualify for a waiver or as otherwise exempted from Franchisee’s service pursuant to either this Agreement or RPV Municipal Code Chapter 8.20. Nothing in this Agreement shall give a Customer the right to decline service as required by RPV Municipal Code Chapter 8.20, unless such Customer is already receiving Solid Waste services pursuant to such Chapter. 5.2.2 Bin Collection – Gray Container Waste (Refuse) Franchisee shall Collect Gray Container Waste (Refuse) from Commercial Premises as frequently as scheduled by Customer, but not less than once per week and more frequently if required to handle the waste generated at the Premises where the Containers are located. The Franchisee shall provide Containers as part of the Collection services. The size of the Container and the frequency (above the minimum) of Collection shall be determined by agreement between the Customer and the Franchisee. Size and frequency shall be sufficient to provide that no Refuse need be p laced outside the Container. Unless expressly instructed by the City, Franchisee shall provide Franchisee Provided Containers only to those Commercial Premises that provide an appropriate location for such Container in accordance with the Rancho Palos Verdes Municipal Code. 5.2.3 Source Separated Blue Container Waste Franchisee shall provide Source Separated Blue Container Waste Collection Service to all Commercial Customers without a waiver approved by the City. Franchisee shall Collect Recyclable Materials from Commercial Premises that have subscribed to Recyclable A-46 37 Materials Collection services as frequently as scheduled by the Customer, but not less than once per week. Franchisee may determine the method of Recyclable Materials Collection, except that any such method must enable Commercial Customers to comply with Public Resources Code Section 42649.2 either through Source Separation or through mixed waste processing that yields Diversion results comparable to Source Separation. Franchisee shall Collect Recyclable Materials at the location agreed upon by Franchisee and Customer. The designated Collection location, if disputed by Franchisee or Customer, shall be determined by the City. Franchisee shall not be required to furnish a separate Container for Recyclable Materials unless such is required by Franchisee’s chosen method of compliance with this paragraph. Franchisee shall use Reasonable Business Efforts to provide Commercial Customers who qualify as Commercial Waste Generators (as that term is defined in Public Resources Code Section 42649.1) with such assistance and services as may be necessary to enable those Generators to comply with Public Resources Code Section 42649.2. 5.2.4 Bin Collection – Source Separated Green Container Organic Waste Franchisee shall provide Source Separated Green Container Organic Waste Collection Service to all Commercial Customers without a waiver approved by the City. Franchisee shall provide Recycling Bins or Carts to Customers in sufficient quantities to meet the Recycling needs of each Customer as frequently as scheduled by the Customer, but not less than once per week. Franchisee may determine the method of Organic Waste Collection, except that any such method must enable Commercial Customers to comply with SB 1383 either through Source Separation or through mixed waste processing that specifically recycles Organic Waste. Franchisee shall Collect Organic Waste at the location agreed upon by Franchisee and Customer. The designated Collection location, if disputed by Franchisee or Customer, shall be determined by the City. Franchisee shall not be required to furnish a separate Container for Organic Waste unless such is required by Franchisee’s chosen method of compliance with this paragraph. Franchisee shall use Reasonable Business Efforts to provide Commercial customers who qualify as Organic Waste Generators (as that term is defined in Public Resources Code Section 42649.8) with such assistance and services as may be necessary to enable those Generators to comply with Public Resources Code Section 42649.81. 5.2.5 Special Collection Consideration for Commercial Premises a) Shared Containers. Commercial Premises may share Containers with neighboring Commercial Business establishments provided that all sharing units share the same Premises and so long as the sharing of Containers does not result in the overfilling of, or overflow from, Containers. A-47 38 Food Establishments. Those Commercial Premises consisting of food processing operations shall utilize a non-shared Container for the disposal of food-related Solid Wastes (i.e., a Container not shared with other Commercial Premises unless such Premises sharing the Container are also food processing operations disposing of food-related Solid Wastes). 5.3 On-Call Container Services Franchisee shall provide Bins and Roll-off Boxes to Commercial Premises on an On-Call basis as requested by Customers. Container services shall include, but not be limited to, moving manually or by a specialized “scout” truck the Bins or Roll-off Boxes from their non-curbside or non-regular storage location for Collection and returning the Bins or Roll- off Boxes to such storage location. 5.4 Encroachment Permits Required Franchisee shall not place any Container at any location within the City until Franchisee has verified that the Owner of the Premises has obtained any required permit from the City or has verified with the City that none is required. No Container shall be placed or used in any manner that violates an applicable permit. Franchisee shall immediately remove any Container that does not have a valid permit, unless notified by the City that none is required. All Containers placed on the street or in the public right of way shall first obtain an encroachment permit and shall be placed in accordance with the encroachment permit. Upon request by the City, Franchisee shall provide the City with the address of any Premises where a Container will be placed, the size of the Container, the duration of the placement, and the type of material that will be placed in the Container. City may remove a Container that is placed in violation of this Section, and Franchisee shall immediately reimburse City for all costs incurred by City in removing such Container. 5.5 On-Call Services for Collection of Bulky Waste Franchisee shall provide Bulky Waste Collection service for Commercial Premises upon request. Franchisee shall make provisions for the Recycling of Bulky Waste if a market for such waste is available. a) Bulky Waste Collection Restrictions. The following applies to items Collected under this Section: i. No single item that cannot be handled by two (2) workers shall be accepted. A-48 39 ii. The following items shall not be picked up: Hazardous Substances and Hazardous Waste. iii. Vehicles used for Collection of Bulky Waste shall not use compactor mechanisms or mechanical handling equipment that may damage reusable goods or release Freon or other gases from pressurized appliances. b) Bulky Waste Containing Freon. In the event that Franchisee Collects Bulky Waste that contains Freon, Franchisee shall handle such Bulky Waste in a manner such that the Bulky Waste is not subject to regulations as Hazardous Waste under applicable State and federal laws or regulations. A-49 40 SECTION 6. Other Services 6.1 Designated Disposal Site Franchisee shall dispose of all Collected Refuse at Franchisee's expense at a Disposal Site determined by the Franchisee, except that any such Disposal Site shall be certified to accept all Discarded Materials Solid Waste delivered by Franchisee and shall be in compliance with all Federal, State, local laws, and Applicable Laws. 6.2 Contamination Monitoring The Franchisee shall implement a Contamination monitoring program to minimize Prohibited Container Contaminants in a manner that complies with Section 18984.5 of Title 14 of the California Code of Regulations . The Franchisee may conduct its Contamination monitoring requirements through either Route Reviews or Waste Evaluations, or a combination of the two methods. The Franchisee’s Contamination monitoring program shall include, but not be limited to, the following: 6.2.1 Route Reviews For routes on which the Franchisee conducts Route Reviews (i.e., on-route observations of individual Containers), the routes must be reviewed at least once per year. Upon finding Prohibited Container Contaminates in a Container, Franchisee shall notify the Customer of the Contamination. The notice of Contamination may be left at the Customer’s location, mailed, e-mailed, or electronically messaged to the Customer. The notification shall include information about: 1) the Collection day on which the Container was Contaminated, 2) the nature of the Contamination (e.g., which type of Container was Contaminated, etc., 3) information regarding the Customer’s obligation to properly Source Separate materials in the appropriate Containers and, 4) the consequences of further Contamination. If feasible, the notice should include photographic evidence of the Contamination. 6.2.2 Waste Evaluations For routes on which the Franchisee performs Waste Evaluations (i.e., conducting waste characterizations of Collected material at the Processing Facility), Waste Evaluations shall be conducted at least twice per year from vehicle loads of Source Separated Blue Container Waste and from Source Separated Green Container Organics Waste, and at least once per quarter from vehicle loads of Gray Container Waste. Waste Evaluations shall include samples of each material type, and samples from different areas of the City, and from different seasons in the year. The Waste Evaluations shall include at least the A-50 41 number of samples required in Section 18984.5 (C)(1)(e) of Title 14 of the California Code of Regulations. If the sampled weight of Prohibited Container Contaminants in the Waste Evaluations exceeds 25 percent of the measured sample for any Container type, the Franchisee shall perform one of the following: a) Notify all Customers on the sampled Hauler Route of their requirement to properly separate materials into the appropriate Containers. The Franchisee may provide this information by placing a notice on the Customer’s Container, gate, or door, and/or by mail, e-mail, or electronic message to the Customer; or b) Perform a targeted Route Review of Containers on the routes sampled for Waste Evaluations to determine the sources of Contamination and notify those Customers of their obligation to properly separate materials. The Franchisee may provide this information to these Customers by placing a notice on the Customer’s Container gate, or door, and/or by mail, e-mail, or electronic message to the applicable Customers. 6.2.3 Quarterly Contamination Reporting Requirements Franchisee shall maintain records and report to the City quarterly on Contamination monitoring activities and actions taken (See Section 8.5.4). 6.3 Education and Outreach 6.3.1 General To promote public education, Franchisee shall create and distribute all public education materials and conduct education programs and activities described in this Section at its expense. 6.3.2 Program Objectives Franchisee’s public education and outreach strategy shall focus on improving its Customers’ understanding of the benefits of and opportunities for source reduction, reuse, and Diversion Landfill Disposal reduction, and furthering climate goals. In general, Franchisee-provided public education and outreach, which shall include all content required by this Section, shall: a) Inform Franchisee’s Customers about the services that are provided under this Agreement with specific focus on describing the methods and benefits A-51 42 of source reduction, reuse, and Diversion reduction of Solid Waste Disposal; and b) Instruct Franchisee’s Customers on the proper method for placing materials in Containers for Collection and setting Containers out for Collection with specific focus on minimizing Contamination of Source Separated Recyclable Materials and Source Separated Organic Waste; and c) Clearly define Excluded Waste and educate Customers about the hazards of such materials and their opportunities for proper handling; and d) Encourage Customers to buy products if the product and its packaging are readily reusable, Recyclable, or Compostable; and e) Inform Customers subject to Food Recovery requirements under SB 1383 Regulations of their obligation to recover Edible Food and actions they can take to prevent the creation of Food Waste; and f) Encourage the use of Compost; and g) Encourage Customers to purchase products/packaging made with Recycled - content materials; and h) Explain the process by which fines and penalties may be incurred for non - compliance. The cumulative intended effect of these efforts is to reduce each Customer’s reliance on Franchisee Provided Gray Container Waste/Mixed Waste service and, ultimately, Disposal. Although Franchisee is only responsible for educational program obligations for its direct Customers, and not the accounts of other franchised hauler s, Franchisee’s education program may have broader reach through the provision of educational materials on its website or a dedicated education page (see also, Section 6.3.5(b)). 6.3.3 Minimum Content Requirements Franchisee shall include the following education and outreach content to Customers by incorporation of this content into the public education materials. a) Information on the Waste Generator's requirements to properly separate materials in appropriate Containers. A-52 43 b) Information on methods for: waste prevention, recycling Organic Waste on-site, sending Organic Waste to Community Composting, and any other local requirements regarding Organic Waste. c) Information regarding the methane reduction benefits of reducing the Landfill Disposal of Organic Waste, and the methods of Organic Waste recovery. d) Information regarding how to recover Organic Waste. e) Information related to the public health and safety and environmental impacts associated with the Landfill Disposal of Recyclable Materials and Organic Waste. f) Information regarding programs for the donation of Edible Food. 6.3.4 Annual Education Plan Franchisee shall develop and submit to the City an annual public education plan. The annual public education plan shall present the education and outreach activities planned for the upcoming calendar year. This plan shall be submitted with the Franchisee’s annual report. The public education plan shall specify how Franchisee will accomplish the education and outreach program objectives. The City shall be allowed up to thirty (30) calendar days after receipt to review and request modifications. Franchisee shall make any changes to the plan directed by the City. Franchisee shall have up to fifteen (15) calendar days to revise the plan in r esponse to any changes directed by the City. Franchisee shall obtain advance approval from the City for any education or outreach activities not included in the annual education plan and approval of such requests shall not be unreasonably withheld. The City shall have the right to request that Franchisee include City identification and contact information on public education materials. The City reserves the right to direct the Franchisee to modify the education and outreach program at any time. Franchisee shall promptly provide the City with copies of any modifications to the to the education and outreach plan. 6.3.5 On-going Education Requirements a) Annual Service Guides - Not less than once per year, Franchisee shall prepare and distribute to each Commercial Customer in the City a service guide that describes available services, including information about how to place Containers for Collection, which materials should be placed in each Container, Prohibited Container Contaminants, Collection Holidays, and the Franchisee’s contact A-53 44 information. The service guide must also include the information specified in Section 6.3.3. b) Website - Franchisee shall develop and maintain a website (with a unique URL specific to the City) that is specifically dedicated to the City to provide Customers with detailed service information. The website shall be accessible by the public and shall include all education and outreach materials being provided. Franchisee shall update the website regularly so that information provided is current. c) Provision of Educational Materials to Non-Compliant Entities - Franchisee shall provide educational materials to non-compliant Customers under this Agreement, as further described in Section 6.2.1. 6.4 Materials Distribution Methods Franchisee shall use the following methods to provide education information to Customers. All materials are to be approved by the City prior to distribution. Printed materials. The Franchisee shall be responsible for the design, printing, and distribution of these materials, subject to City approval. All Franchisee-printed public education materials shall, at a minimum, use recycled paper and/or be made of Recyclable Material. The Franchisee will use 100% post-consumer paper and procure printed materials from local businesses. Electronic materials and website content. Franchisee shall provide website content for education and outreach materials, which may include, but are not limited to: digital graphics, digital versions of print materials, social media posts, and blog posts. The Franchisee shall be responsible for the design, posting, and electronic distribution of these materials, and for assuring compliances with any applicable copyright rules and for licensing the use of these materials to the City. Franchisee authorizes the City to use Franchisee generated content pursuant to this Agreement on the City’s website. 6.4.1 Personnel The Franchisee shall designate one or more staff member(s) to serve as “Outreach Coordinators”. The duties of the Outreach Coordinator(s) shall be focused on public education, community outreach, site visits, and technical assistance. The Outreach Coordinator(s) shall educate Customers and Customers’ employees on the importance of Recycling, Food Recovery, resource recovery, Landfill Disposal reduction, as well as all State, federal, county, and City mandates and Applicable Laws, including SB 1383 and SB 1383 Regulations; and shall work with Customers to implement services, increase participation in Source Separated Recyclable Materials and S ource Separate Organic A-54 45 Waste Collection programs, and reduce Contamination. The Outreach Coordinator(s) shall identify potential organizations and partners involved with Food Recovery and resource recovery. The Outreach Coordinator(s) shall be responsible for implementing the education plans and programs specified in this section. 6.5 Technical Assistance Program 6.5.1 Site Visits and Waste assessments No later than two weeks after the Effective Date, Franchisee will provide an outreach and technical assistance plan to the City identifying the site visit schedule for which to send a Franchisee representative to visit each Commercial Customer’s Premises for the purpose of assessing how much Source Separated Recyclable Materials and Source Separated Organic Waste is being Disposed; assessing the Source Separated Recyclable Materials and Source Separated Organic Waste Collection Service Levels needed to meet the requirements of SB 1383 Regulations; and encouraging all Customers to establish Source Separated Recyclable Materials and Source Separated Organic Waste Collection service at least four (4) weeks prior to October 1, 2022 when mandatory service is required. Franchisee shall also notify Customers of opportunities to reduce costs by subscribing to Source Separated Recyclable Materials and Source Separated Organic Waste Collection service and reducing Gray Container Waste/Mixed Waste Collection service. Franchisee shall contact each Commercial Customer and provide site visits according to the City - approved schedule. Franchisee will also provide a site visit to any Commercial Customer that requests a site visit, even if it is ahead of schedule. Beginning October 1, 2022, and July 1 annually thereafter, Franchisee representative shall follow up with Commercial Customers who are required to participate in Source Separated Recyclable Materials and Source Separated Organic Waste Collection service under Applicable Law, including but not limited to AB 341, AB 1826, and SB 1383 and their corresponding regulations. The Franchisee shall ensure that these Customers are participating in the Source Separated Recyclable Materials and Source Separated Organic Waste Collection Service. If the Customer is not in compliance or not participating, the Franchisee representative shall assist the Customers with selecting appropriate Containers and Container sizing, identify acceptable Solid Waste Collection services as set forth in the Agreement, and attempt to resolve any logistical barriers to providing Source Separated Recyclable Materials and Source Separated Green Cart Organics Waste Collection service. Franchisee shall provide ongoing, on-site training for Commercial Customers’ staff, including, but not limited to: management, kitchen staff, service employees, janitorial staff, maintenance, and any other on-site staff members or contractors that handle Solid Waste. A-55 46 For each on-site waste assessment conducted by Franchisee, Franchisee shall include documentation of the items listed below. The City reserves the right to receive Franchisee’s documentation of additional information and shall authorize the format for required information. a) Pictures of material in all Containers; and, b) Characteristics of the property, business, and Customer type; and, c) Written recommendations for the appropriate Service Level for each material type; and, d) Provision of outreach and education materials appropriate to the Customer type; and, e) Determination of signage placement; and, f) Determination of any on-going training needs; and, g) Determination of any access needs; and, h) Documentation of any special service needs (such as, but not limited to, seasonal Collection service, automated on-call Compactor, etc.); and, i) Documentation of records of communications with the Customer. 6.5.2 Recordkeeping and Reporting Requirements Franchisee shall maintain records of all technical assistance activities and educational materials conducted pursuant to this Section and submit reports to the City. 6.6 Procurement of Products with Recycled and Organic Contents The Franchisee shall comply with the purchasing and recordkeeping requirements described in this Section. 6.6.1 Recycled – Content Paper The Franchisee shall procure Paper Products and Printing and Writing Paper for invoices, billing statements and inserts, reports, and public education materials, con sistent with the requirements of the Public Contract Code (PCC) Sections 22150 through 22154. Additionally, Paper Products and Printing and Writing Paper procured by the Franchisee shall be eligible to be labeled with an unqualified recyclable label, as de fined in 16 Code of Federal Regulations (CFR) Section 260.12 (2013). Franchisee shall state on all materials A-56 47 prepared with post-consumer recycled content the following: ‘Printed on Recycled Paper.’ In accordance with 14 CCR Section 18993.3(c), the Franchisee shall require all businesses from whom it purchases paper products and printing and writing paper to certify in writing: a) The minimum percentage, if not the exact percentage, of postconsumer material in the Paper Products and Printing and Writing Paper offered or sold to the Franchisee. The certification shall be furnished under penalty of perjury in a form and manner determined by the Franchisee and approved by the City. The City may waive the certification requirement if the percentage of postconsumer material in the paper products, Printing and Writing Paper, or both can be verified by a product label, catalog, invoice, or a manufacturer or vendor internet website; and, b) That the paper products and printing and writing paper offered or sold to the Franchisee are eligible to be labeled with an unqualified recyclable label as defined in 16 CFR Section 260.12 (2013). 6.6.2 Provision of Mulch Upon notification by City, Franchisee shall procure and provide on the City’s behalf an amount of bulk Mulch derived from recovered Organic Waste for use in City parks and facilities. The amount shall be up-to five hundred (500) cubic yards per calendar year and or a greater amount (as determined by the City) that will feasibly meet the City’s State- mandated procurement goals. Franchisee shall deliver Mulch in Roll-off Boxes or via dump truck within thirty (30) calendar days of request to any accessible location within the City limits. Upon request, Franchisee shall provide the City with Mulch lab results and specifications. All Mulch provided by Franchisee must meet or exceed State requirements for Mulch quality, including those standards regarding Mulch maturity, reduction of pathogens, elimination of weed seeds, and concentrations of physical contaminants such as glass, plastic, metal, and other Non-organic Recyclables. All Mulch provided by Franchisee must be suitable for use in landscaping, parks, sports fields, and community gardens, and must be suitable for distribution to the general public. 6.6.3 Renewable Natural Gas If requested by City, Franchisee shall provide the name, location, and contact information of each entity, operation, or Facility from whom the Franchisee procured Renewable Natural Gas (RNG). If requested by City, Franchisee shall provide the total amount of RNG procured by the Franchisee for use in Franchisee vehicles in the City of Rancho Palos Verdes, in diesel gallon equivalents (DGE), including copies of any A-57 48 receipts, invoices, or other similar documentation ; with efforts to maximize the City’s ability to meet the State -mandated procurement goals . 6.6.4 Recordkeeping Requirements Franchisee shall maintain records that demonstrate ongoing compliance with these requirements, including, but not limited to, copies of receipts, invoices, or other proof of purchase that describe the products purchased, by volume and type for all products specified in this section; and copies of certifications or other verifications required by this Agreement. Franchisee shall submit these records, upon the City request. 6.7 Billings 6.7.1 Direct Billing All accounts shall be directly billed by Franchisee and in accordance with reasonable protocols established by Franchisee in accord with Applicable Laws. 6.7.2 Delinquent Accounts Franchisee shall use Reasonable Business Efforts to collect all delinquent accounts for services provided under this Agreement. If, after using Reasonable Business Efforts for ninety (90) days, Franchisee remains unable to collect on any delinquent account, Franchisee may stop service. Franchisee shall notify City at least one week prior to stopping service. Nothing in this Agreement waives or supersedes the City's rights to initiate code enforcement action(s) in response to the build -up, long-term stagnation, or misplacement of Solid Waste as a result of any termination of Franchisee's service , including those enforcement mechanisms available under Chapter 8.20 . 6.8 Customer Waiver Program Coordinator The City has the authority, pursuant to Chapter 8.20, to grant to individual Customers waivers from the requirement to subscribe to Recyclable Materials and Organic Waste Collection service. These waivers may be granted for de minimis generation, lack of space, every other week service, or for reasons allowed under SB 1383. The City cannot delegate to a private entity (e.g., Franchisee) the authority to grant these waivers. However, Franchisee can advise the City in determining which Customers may qualify for a waiver. 6.8.1 Franchisee Waiver Request on Behalf of Customer Upon reasonable belief that a Customer may qualify for a de minimis, physical space, Collection frequency, or other waiver allowed by SB 1383, the Franchisee may submit a request to the City to grant a waiver to the Customer, provided that adequate evidence A-58 49 of the de minimis, physical space, Collection frequency, or other waiver allowed by SB 1383 requirements specified in 14 CCR Section 18984.11 is included with the request. The City shall review and approve or deny the waiver request. Franchisee’s request for consideration of a waiver shall include the Customer’s name and address, type of Commercial Customer, reasons Customer may be eligible for the waiver, and evidence such as, but not limited to: Service Level data, photo documentation, weight records, and technical assistance assessment results. 6.8.2 Waiver Reverification It shall be the responsibility of the Franchisee to verify that the Customers with de minimis, physical space constraint, Collection frequency, or other waiver allowed under SB 1383, continue to meet the waiver requirements set forth in this Section. Franchisee shall conduct such reverifications of waivers through inspection of each Customer’s Premises and review of applicable records at least once every five (5) years for de minimis and physical space constraint waivers. The Franchisee shall maintain a record of each waiver verification and provide a report to the City documenting the waiver reverifications performed and recommendations to the City on those waivers that Franchisee concludes are no longer warranted. The City shall make a final determination of the waiver eligibility of Customers. 6.8.3 Franchisee Recordkeeping of Customer Granted Waivers Upon Franchisee request, no more than four (4) times per year, the City shall provide Franchisee an updated listing of waivers approved by the City, including the Customers’ names, mailing address, service address, and type of waiver. Franchisee shall maintain waiver-related records and report on waiver verifications. 6.9 Inspection and Enforcement 6.9.1 Annual Compliance Reviews a) General Franchisee shall perform compliance reviews described in this Section commencing October 1, 2022, and at least at the end of every calendar year, thereafter unless otherwise noted. b) Commercial Customer Compliance Reviews The Franchisee shall complete a compliance review of all Commercial Customers that generate two (2) cubic yards or more per week of Solid Waste, including Organic Waste, to determine their compliance with: (i) Customer requirements under the City’s Solid Waste Collection program; and, (ii) if applicable for the Customer, Self -hauling requirements pursuant to 14 CCR Section 18988.3 and the Municipal C ode, A-59 50 including whether a Commercial Customer is complying through Back -hauling Source Separated Recycled and Organics Waste Source Separated Organic Materials. The compliance review may mean a ‘desk’ review of records to determine Customers’ compliance with the above requirements and does not necessarily require on-site observation of service; however, the City may require that the Franchisee perform an on-site observation of service in addition to or in lieu of the desk review if needed to obtain the required information. 6.9.2 Compliance Review Process a) Number of Reviews. The Franchisee shall conduct enough compliance reviews, Hauler Route Reviews, and inspections of Customers, to adequately determine the Customers’ overall compliance with Applicable Laws, including without limit SB 1383 Regulations, AB 1826, AB 341, and the Municipal Code. The number of reviews shall be no less than one (1) per year. The City reserves the right to require additional inspections, if the City determines in its sole discretion that the number of inspections conducted by the Franchisee is insufficient. The City may require the Franchisee to prioritize inspections of entities that the City determines are more likely to be out of compliance. b) Non-Compliant Entities. From October 1, 2022, through June 30, 2023, Franchisee shall provide educational materials in response to non -compliant Commercial Customers. Franchisee shall provide these educational materials to the non - compliant Customers within thirty (30) days of determination of non -compliance or immediately upon determination of non-compliance if such non-compliance is determined during an inspection or a Route Review. Franchisee shall document the non-compliant Customers and the date and type of education materials provided and shall report such information to the City. Beginning January 1, 2024, the Franchisee shall, in addition to providing the education materials described in this subsection, document non-compliant Customers determined through Franchisee’s compliance reviews pursuant to Section 6.9 and shall report all Customers with violations of SB 1383 Regulations to the City. The City shall be responsible for subsequent enforcement action against the Customers. c) Documentation of Inspection Actions. The Franchisee shall generate a written and/or electronic record and maintain documentation for each inspection, hauler Route Review, and compliance review conducted and shall provide copies to the City on request. A-60 51 6.10 Service Complaints 6.10.1 General The Franchisee agrees to maintain a computer database log of all oral and written Complaints received by Franchisee from Customers or other Persons. Franchisee shall be responsible for the prompt and courteous attention to, and prompt and reasonable resolution of, all Customer Complaints. Franchisee shall maintain a log of all Complaints received including, but not limited to, the date and time of the Complaint , the nature of the Complaint, the person making the Complaint and their contact information, and how and when the Complaint was resolved. Franchisee agrees to maintain for a period of at least three (3) years all Complaints registered by Customers and Persons. 6.10.2 SB 1383 Regulatory Non- Compliance Complaints For Complaints received in which the Person alleges that a Customer is in violation of SB 1383 Regulations, Franchisee shall document the information. The Franchisee shall provide this information in a brief Complaint report to the City for each SB 1383 Regulatory non-compliance Complaint within ten (10) working days of receipt of such Complaint, and a monthly summary report of SB 1383 Regulatory non -compliance Complaints. 6.10.3 Investigation of SB 1383 Regulatory Non-Compliance Complaints Franchisee shall commence an investigation, within thirty (30) days of receiving a Complaint in the following circumstances: (i) upon Franchisee receipt of a Complaint that an Customer may not be compliant with SB 1383 Regulations; and, (ii) upon City request to investigate a Complaint received by the City, in which the City determines that the allegations against the Customer, if true, would constitute a violation of SB 1383 Regulations. Franchisee is required to investigate Complaints against Customers, but not against Food Recovery Organizations, or Food Recovery Services. Franchisee shall investigate the Complaint using one or more of the methods: a) Reviewing the Service Level of the Customer that may not be compliant with SB 1383 Regulations; and b) Reviewing the waiver list to determine if the Customer has a valid de minimis, physical space constraint, Collection frequency, or other waiver allowed by SB 1383; and c) Reviewing the Self-haul registration list to determine if the Customer has registered and reviewing the Customer’s reported Self-haul information; and A-61 52 d) Inspecting Premises of the Customer identified by the complainant, if warranted; and/or e) Contacting the Customer to gather more information, if warranted. 6.10.4 Reporting Within ten (10) working days of completing an investigation of an SB 1383 Regulatory non-compliance Complaint, Franchisee shall submit an investigation complaint report that documents the investigation performed, findings, and recommends to the City on whether or not the Customer investigated is in violation of SB 1383 Regulations based on the Franchisee’s investigation. The City Manager or his or her designee shall make a final determination of the allegations against the Customer. 6.11 Solid Waste Composition Studies Franchisee acknowledges that City may need to perform Solid Waste generation and Disposal characterization studies occasionally to comply with the requirements of AB 939 and other Applicable Laws and regulations. Upon City request, but not more than once every two years, Franchisee, at its sole expense, shall cooperate with such studies to satisfy the requirements of AB 939 and other Applicable Laws and regulations. A-62 53 SECTION 7. Standards of Performance 7.1 General Franchisee shall always comply with Applicable Law and regulations as the same exist at the time and provide services in a manner that is safe to the public and the Franchisee’s employees. 7.2 Availability of Franchisee Franchisee shall maintain an office for the purpose of receiving customer payments and handling customer inquiries, orders and Complaints, via phone, mail, or e-mail. The office shall be open to the public between the hours of 8:00 a.m. to 5:00 p.m., five (5) Days per week, Monday through Friday, except Holidays. A representative of Franchisee shall be available during office hours for communication with the public at such office. Additionally, the Franchisee shall continue to employ the services of a telephone representative, answering exchange, or message system for calls during non-business hours and provide a telephone system sufficient and adequate to handle calls during peak periods. 7.3 Franchisee Liaison to the City Franchisee shall be reasonably available to the City. The Franchisee shall provide the City Manager or their designee, the local Los Angeles County Sheriff’s Department, and the local Los Angeles County Fire Department with an emergency telephone number for effectively reaching Franchisee in the case of off-hour emergencies. Franchisee shall also provide the City Manager or their designee with the cellular phone number of a representative(s) with day-to-day managerial responsibility over Franchisee services provided within the City. One or more of the Franchisee's representatives described in this Section shall visit City offices at such reasonable times as the City Manager or their designee shall designate for the purpose of discussing any matters relating to this Agreement or the Franchisee's performance thereof. Any representative appointed by the Franchisee shall occupy a position of sufficient managerial authority and knowledge of day-to-day Franchisee operations as to be able to meaningfully discuss performance issues with the City Manager or their designee. 7.4 Hours and Dates of Collection Franchisee shall so conduct its operations so as to offer the least possible obstruction and inconvenience to public traffic or disruption to the peace and quiet of the area with in which Collections are affected. In accordance therewith, Collection services by Franchisee shall not be performed prior to 7:00 a.m. and no later than 7:00 pm from Monday through A-63 54 Saturday, and no Collections shall be made on Sunday. City may, from time to time, revise the Collection hours specified in this Section by duly adopted resolution. Further, Franchisee shall observe the following Holidays annually (whereby there will be no Collection services and Collection shall occur one non-Holiday weekday following the Holiday): • New Year' s Day • Memorial Day • Independence Day • Labor Day • Thanksgiving Day • Christmas Day Franchisee shall also observe any additional holidays coinciding with the holiday schedule observed by the County to the extent such County- observed holiday results in the closure of the County's Disposal Sites. In any week in which one of these Holidays falls on a Collection day, Collection will be delayed to the next business da y. Any changes to the Holiday Collection schedule shall be approved by the City in advance in writing. 7.5 Changes in Collection Schedule The Contractor shall notify the City thirty (30) calendar days prior to any change in Collection operations which results in a change in the day on which Solid Waste Collection occurs. The Contractor will not permit any Customer to go more than seven (7) calendar days without service in connection with a collection schedule change. The City's approval of any change in collection is required prior to such change, and such approval will not be withheld unreasonably. 7.6 Citizen Complaints The Franchisee shall commence response to all Complaints within eight (8) business hours, shall return all customer phone calls within eight (8) business hours, and shall exercise Reasonable Business Efforts to resolve all Complaints. The City may, but is not obligated to, respond to Complaints that have not been addressed within two (2) business days and may charge the Franchisee for the actual costs incurred therefor. In connection herewith, Franchisee shall adequately staff its communication system so that it is capable of handling all calls during peak business hours. A-64 55 7.7 Record of Complaints. Franchisee shall maintain a record of all Complaints received by mail, e-mail, by telephone or in person (including date, time, name, address of complainant and nature of Complaint) for a period of three (3) years. Franchisee will maintain records listing the date of consumer Complaints, the customer, describing the nature of the Complaint or request, and when and what action was taken by the Franchisee to resolve the Complaint. Copies of all Complaints and records described in this Section shall be submitted to the City Manager, or designee on a quarterly basis, no later than thirty (30) business days following the end of each quarter. 7.8 Disputes. Disputes between the Franchisee and its Customers regarding the services provided in accordance with this Agreement may be resolved by the City; provided, however, the City shall not be obligated to resolve any such disputes. The City Manager or designee may prescribe the procedures for processing Customer Complaints. If the City chooses to resolve a dispute, the City's decision shall be final and binding unless challenged in a court of competent jurisdiction. 7.9 Tags and Records of Non-Collected Materials. The Franchisee shall notify Customers in the event any item left for Disposal is not picked up. Said notification shall be in the form of a written tag placed upon the Customer's Container, stating Franchisee's telephone, mailing address, and electronic mail address; and the reason for non-collection. Reasons for non-collection may include, but are not limited to the following: Containers inaccessible to Franchisee (after Franchisee has made a reasonable effort to secure access); improper Container or use of a non-Franchisee Provided Container; Container overfilled; overweight Container (in excess of 175 lbs. per cubic yard); or, the Container includes Hazardous Waste or Prohibited Container Contaminates. The Franchisee shall maintain a record of all items not collected. 7.10 Property Damage Caused by Franchisee. The Franchisee shall be responsible for the cost of repairing any property damaged by the Franchisee or its agents. The City may, but is not obligated to, respond to Complaints that have not been addressed in accordance with Section 7.6 hereof and may charge the Franchisee for the actual costs incurred by the City therefor plus overhead charges equal to thirty (30%) of the City's expenses in Collection. A-65 56 7.11 Quality of Service Surveys. The City may, at its own expense, conduct periodic quality of service surveys of Franchisee's customers. Prior to finalizing the survey form, the City shall review the survey with the Franchisee. Results of the quality-of-service survey shall be reviewed with the Franchisee and used to discuss improvements in service delivery. 7.12 Annual Route Audit. At least once annually, Franchisee shall, at its own expense, conduct an audit of its Collection routes. The annual route audit shall include the truck identity servicing each route, number of accounts serviced per route, frequency of pick-ups, size of container for each account on the route, frequency of service for each account on the route, as well as the weight of the truck and refuse delivered to the applicable Disposal Site. Results of the annual route audit shall be available for review by the City. 7.13 On-Call Equipment and Personnel. During normal business hours, the Franchisee shall have "On-call" at least one (1) truck to handle called-in pick-ups or missed Collections. After normal business hours, the Franchisee shall have "On-Call" the necessary manpower and equipment (including without limitation an emergency service vehicle to attend to Complaints or emergency calls) to respond to customer emergencies that are an immediate threat to life or property. Franchisee's on-call equipment and personnel shall also be available to assist the City with debris Collection and removal within a reasonable time resulting from emergencies and natural disasters, excepting that nothing in this Section shall require Franchisee to Collect, Transport or Dispose of waste that Franchisee is not permitted to handle. 7.14 Collection Standards. Franchisee shall provide Commercial Collection service with as little disturbance as possible and shall leave any Container in an upright position and leave Cans, Carts, and Bin Containers at the same point from which they were Collected without obstructing alleys, roadways, driveways, sidewalks, or mailboxes. 7.15 Collection Vehicle Requirements. 7.15.1 General Franchisee shall continue to provide a fleet of Collection vehicles sufficient in number and capacity to perform efficiently the work required by this Agreement in strict accordance with its terms. Franchisee agrees to maintain each piece of equipment used by it in good A-66 57 order and repair, and not more than ten (10) years of age. All vehicles shall be uniformly painted and fully equipped for efficient automated Collection. All vehicles sh all be registered with the California Department of Motor Vehicles and shall meet or exceed all applicable State and local requirements, including all applicable air pollution control laws. Each vehicle shall also carry a fire extinguisher, first aid kit a nd a broom and shovel to be used for the immediate removal of any spilled material. All spilled material shall be immediately removed by Franchisee. Franchisee shall be responsible for the cost of repairing all damage to public and private property caused by Franchisee's vehicles. Franchisee shall comply with the requirements of the Air Resources Board, or any successor agency, regarding Solid Waste Collection Vehicles, found in Title 13, California Code of Regulations, Sections 2020 through 2021.2, as may be amended from time to time. The City may require the Franchisee to improve or upgrade Collection vehicles to incorporate the latest technology available to control environmental impacts of the services provided in this Agreement. 7.16 Truck Bodies. All truck bodies used by Franchisee shall be watertight and leak-proof and shall be so constructed as to prevent odors or the falling, leaking or spilling of Solid Waste, Recyclables, Organic Waste, or other Discarded Materials. Franchisee shall maintain all trucks and equipment used within City in good mechanical condition and the same shall be clean and uniformly painted and numbered. All trucks and equipment shall have painted thereon, or affixed thereto, in letters and n umbers at least six (6) inches in height, the name and telephone number of Franchisee, which name and telephone shall be clearly visible at all times. Each vehicle utilized by Franchisee shall be identified by numerals at least six (6) inches in height in a location or locations on such vehicles to be clearly visible at all times. A list showing each vehicle so identified shall be made available to City and maintained in the current status by Franchisee and, upon notice given by City, Franchisee shall make the equipment available for inspection. If City finds that any truck or equipment being used by Franchisee is not in satisfactory condition then the truck or equipment requiring correction of defects shall not be used by Franchisee in the performance of the Agreement until corrected to the reasonable satisfaction of City. In addition, if Franchisee's trucks are inspected by any other public agencies, copies of any inspection report shall be made available to the City upon request. 7.16.1 Backup Alarm. Each vehicle used for Collecting, Transporting or Disposing of Solid Waste, Recyclables Materials, or Organic Waste shall be equipped with an audible warning device that is activated when the vehicle is backing up. The warning device shall operate automatically and immediately while the vehicle is backing. The warning sound shall A-67 58 be of such magnitude that it will be at least 100 decibels and be audible from a distance of 200 feet. 7.16.2 Gross Vehicle- Weight Limit. No vehicle used for Collecting, Transporting or Disposing of Solid Waste, Recyclables Materials, or Organic Waste Discarded Materials shall be loaded in excess of the manufacturer's gross vehicle weight rating or in excess of the maximum weight specified by the California Vehicle Code, whichever is less. Evidence of the manufacturer's name and gross vehicle weight rating shall be maintained in, or upon, every vehicle. 7.16.3 Preventive Maintenance and Repair Program. Within thirty (30) Days of the Effective Date of this Agreement, Franchisee shall have implemented a complete and comprehensive preventive maintenance and repair program, or if such repair program has already been implemented, Franchisee shall continue its performance thereof. Upon request, Franchisee shall provide a copy of its preventative maintenance program to City for its review. Franchisee shall perform all scheduled maintenance functions in accordance with the manufacturer's specifications and schedule and shall inspect each vehicle daily to ensure that all e quipment is in good working order. Franchisee shall keep accurate records of all vehicle maintenance and repairs, recorded according to date and mileage, nature of maintenance or repair and the signature of a maintenance supervisor or mechanic that the maintenance or repair has been properly performed. Franchisee shall make such maintenance records available to City on request. 7.16.4 Vehicle Cleaning. Franchisee shall wash its vehicles completely at least once a week and steam-clean them on a regular basis so as to present a clean appearance and minimize odors . 7.16.5 Vehicle Storage. No vehicle used by Franchisee in performance of this Agreement shall be stored on any public street or other public property in the City. All Franchisee's vehicles if kept within the boundaries of the City shall at all times when not in use be kept on property owned or leased by the Franchisee and of the proper zoning, either within a building or fenced yard. 7.16.6 Litter Abatement. a) Minimization of Spills. Franchisee shall use due care to prevent Solid Waste, Recyclables, Organic Materials or fluids from leaking, being spilled and/or A-68 59 scattered during the Collection or Transportation process. If any Solid Waste, Recyclables, Organic Materials or fluids leak or spill during Collection, Franchisee shall promptly clean up all such materials. Each Collection Vehicle shall carry a broom, shovel, absorbent, and containment materials at all times for this purpose. Franchisee shall not transfer loads from one vehicle to another on any public street, unless it is necessary to do so because of mechanica l failure, or accidental damage to a vehicle, without prior written approval by City. b) Clean Up. During the Collection or Transportation process, Franchisee shall clean up all litter spilled during Collection or otherwise caused by Franchisee. Franchisee shall leave a notice for Customer if litter not caused by Franchisee is found in Container enclosure or around Containers. c) Covering of Loads. Franchisee shall properly cover all Containers containing Solid Waste during Transport to the Disposal Site. 7.17 City Inspections Franchisee shall give the City at least fifteen (15) Days prior written notice of any vehicle inspection to be performed by the California Highway Patrol ("CHP") and the City may elect to observe the CHP inspection. Without limiting the City's right to observe the CHP inspections, City reserves the right to cause any vehicle used in 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 the provisions of the Rancho Palos Verdes Municipal Code and the State Vehicle Code, including but not limited to California Vehicle Code §§ 27000(b), 23 114, 23115, 42030, 42032, and all Vehicle Code Sections regarding smog equipment requirements. City may direct the removal of any vehicle from service if that vehicle is found to be in nonconformance with applicable codes. No vehicle directed to be removed from service shall be returned to service until it conforms with applicable codes and such conformance has been acknowledged by City. The City may elect in its sole discretion to hire an independent contractor to perform a comprehensive inspection of Fran chisee's vehicles. If the City hires an independent contractor to perform the inspection on behalf of the City the Franchisee shall pay for the cost of such inspection. City shall act prudently in requesting any such inspection. 7.17.1 Brake Inspections. The brake system of each vehicle used in performance of this Agreement shall be inspected pursuant to State law. Upon request by City, notice of certification shall be filed with the City within thirty (30) Days after each such certification. Failure to submit the required certification shall be grounds for terminating this Agreement. A-69 60 7.18 Correction of Defects. Following any inspection, the City Manager or their designee shall have the right to reasonably require Franchisee to take out of service any vehicles and equipment not in good working order and cause Franchisee to recondition or replace any vehicle or equipment found to be unsafe, unsanitary or unsightly within thirty (30) Days of notification of defect in such vehicle or equipment. The City Manager or their designee’s determination may be appealed to the City Council. 7.19 Containers Condition. Franchisee at its sole cost and expense shall maintain all Provided Containers in good condition and repair as needed and shall clean and/or paint each Container annually , if needed. More frequent cleaning and painting shall be conducted by Franchisee if needed. Franchisee shall, at no charge, replace any Franchisee Provided Containers which become unusable by reason of normal conditions of wear and tear. If damages occur to a Provided Container necessitating repairs or replacement of the Container, and if said damages were incurred as a direct result of customer negligence, the customer may be liable for such repair costs and/or replacement costs for the Container. During all times that a Franchisee Provided Container is in the custody and control of Franchisee, Franchisee shall not store such Container in or on public streets or rights-of-way. 7.19.1 Bins. Franchisee shall provide Bin Collection Customers with Bins required during the Term of this Agreement. The size and quantity of Bins shall be determined by mutual agreement between the Customer and Franchisee and shall be subject to City approval. The Franchisee shall maintain Bins in a clean condition and free from Putrescible residue. Bins shall be watertight, and constructed of heavy metal, or other durable material. Bins shall be well painted and maintained in good repair. Franchisee shall mark each Bin with the name of Franchisee and phone number in letters not less than three (3) inches high. Bins shall be labeled to include instructions on what materials should and should not be placed in the Bin. All Bins shall be painted a unifo rm color to comply with the Container color requirements of 14 CCR Section 18984.1 and Section 18984.7. Franchisee Provided Containers that have graffiti on them must be (i) removed and replaced, or (ii) cleaned of all graffiti, or (iii) repainted to a like-new appearance within 24 hours of Franchisee reasonably becoming aware of such graffiti. A-70 61 If new laws or regulations are enacted such that additional receptacles are required to be provided to Customers for purposes of complying with such new laws, Franchisee will supply appropriate Containers. Commercial Franchisee Provided Containers shall be steam-cleaned at least once per year at no cost to the City or Customers in a manner that does not materially disrupt the services provided under this Agreement or create a nuisance. Commercial Franchisee Provided Containers sha ll not block/ obstruct traffic motorists' line of sight in any direction and shall not infringe on any driveway approach, fire hydrant, emergency facility, utility cabinet, or any other access whatsoever. Commercial Franchisee Provided Containers shall have cones or delineators, reflectors, and reflectorized tape at corners. Containers will be equipped with wheel chocks to prevent movement of the Container. 7.20 Personnel 7.20.1 General Franchisee shall furnish such qualified drivers; mechanical, supervisory, clerical; and other personnel as may be necessary to provide the services required by this Agreement in a courteous, safe and efficient manner. Franchisee shall keep itself fully informed of existing and future State and Federal laws, rules and regulations in any manner affecting those engaged and employed in or on the work contemplated in this Agreement or in any way affecting the conduct of that work and of all orders or decrees of bodies of officials having jurisdiction or authority over the same, and shall, at all times, observe and comply with and cause any and all persons employed by Franchisee or under Franchisee to observe and comply with all such laws, ordinances, rules, regulations, orders, and decrees and Applicable Laws. Franchisee and any subcontractors and/or employees under Franchisee shall comply with and be governed by the law of the State of California having to do with working hours as set forth in the Labor Code of the State of California, as the same may be amended from time to time. 7.20.2 Driver Qualifications All Franchisee’s drivers shall be trained and qualified in the operation of Collection vehicles and must have in effect a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. 7.20.3 Uniforms and Identification Badges Franchisee shall require its drivers and all other Collection personnel to wear a suitable and appropriate uniform as a means of identifying the employee. All employees of A-71 62 Franchisee who come into contact with the public shall carry suitable identification badges or cards upon their person. 7.20.4 Employee Appearance and Conduct All employees, while engaged in the Collection of Solid Waste and/or Recyclables within the City or otherwise engaged in services described in this Agreement, shall be attired in uniform. At least one member of every Collection truck crew shall be able to read and speak English. Franchisee shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner . Franchisee shall regularly train its employees in customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection crews to perform the work as quietly as possible. If any employee is found not to be courteous or not to be performing services in the manner required by this Agreement, Franchisee shall take all appropriate corrective measures. 7.20.5 Safety Training Franchisee shall provide suitable operational and safety training for all its employees who use or operate vehicles or equipment for Collection of Solid Waste or who are otherwise directly involved in such Collection. Franchisee shall train its employees involved in Solid Waste, Recycling, Organics Discarded Materials, or any Collection services described in this Agreement, to identify, and not to Collect, Hazardous Wastes/Substances or Excluded Waste. Franchisee and its employees shall comply with the terms of all contracts between the Los Angeles County Department of Public Works and any Disposal Site that is used by the Franchisee. 7.20.6 Safety All work performed pursuant to this Agreement shall be performed in a manner that provides safety to the public and meets or exceeds safety standards outlined b y the California Construction Safety Orders under the State of California Code of Regulations ("CAL-OSHA"). City reserves the right to issue restraint or cease and desist orders to Franchisee when unsafe or harmful acts are observed or reported to City. Franchisee shall instruct its employees to report immediately any hazardous conditions or Hazardous Wastes/Substances they observe within the City during the course of their work to the City. 7.20.7 Non-Discrimination Franchisee covenants that, by and for itself, i ts heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, A-72 63 sex, marital status, national origin, sexual orientation, or ancestry in the performance of this Agreement. Franchisee shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin or ancestry. 7.20.8 No Gratuities Franchisee shall not permit its employees or subcontractors to demand or solicit, directly or indirectly, any additional compensation or gratuity from members of the public for the work performed by those employees or subcontractors pursuant to this Agree ment. 7.20.9 Notice of Labor Disputes Franchisee shall advise City in writing at the time any negotiations are undertaken between the Franchisee and its employees relating to the wages and benefits that are likely to result in any new or continuation of a strike, lock out, walkout, boycott or other labor dispute. 7.21 Hazardous Materials Inspection and Handling The scope of this Agreement and franchise excludes the handling of Hazardous Waste and Substance Materials, and no right to provide Hazardous Substances Materials handling services is conferred on the Franchisee as a result of this Agreement. Franchisee shall ensure that only persons duly-licensed to handle Hazardous Waste/Substance Materials shall be engaged when such services become necessary. Franchisee shall implement a system of Hazardous Waste/Substance screening, identification, and prevention protocol reasonably designed to screen-out Hazardous Waste/Substances and prohibited materials that the Franchisee is not permitted to handle pursuant to Applicable Laws prior to Franchisee accepting such materials. If the Franchisee inadvertently collects Hazardous Waste/Substances or other materials that Franchisee is not qualified or permitted to handle (under any applicable permit conditions or Applicable Laws), the Franchisee shall arrange, at no cost and without liability to City, for the proper disposal of such materials in accordance with Applicable Laws and regulations; provided however, that the Franchisee shall be entitled to return any such Hazardous Waste/Substances, if the customer can be identified, or at its own expense pursue all legal rights and remedies it may have against the customer(s) who generated such materials. The City shall be indemnified by the Franchisee from liability for any disposal of Hazardous Waste/Substances or other materials that Franchisee is not qualified or permitted to handle pursuant to Section 11.2 hereof. A-73 64 7.22 Diversion Requirements 7.22.1 State Mandate The Refuse Impact Reduction Laws currently set the directive of Diverting Solid Waste from Landfills. The City anticipates that the State Legislature will adopt new legislation that will increase the minimum Diversion requirement. Upon the effective date o f any new legislation that affects the Diversion requirements currently imposed by the current Refuse Impact Reduction Laws, Franchisee agrees to implement a revised or new Diversion program meeting such amended legislative requirements, to the extent reasonably necessary to enable the City to comply with the Refuse Impact Reduction Laws. Failure to implement an amended Diversion program based upon new State legislation mandating Waste Diversion levels shall constitute a default of this Agreement. 7.22.2 Development of Diversion Program Upon City’s request, Franchisee shall meet and confer with City in good faith to jointly develop Solid Waste Diversion strategies and develop Diversion programs adequate to meet the requirements established by the State. In the event of any change to State or regional laws, regulations or mandates setting new Diversion requirements applicable to the City, the Parties shall promptly meet and confer to negotiate in good faith the implementation of such amendments to law through the City's Solid Waste Diversion program. City and the Franchisee shall reasonably cooperate in good faith to meet statutory Diversion requirements and otherwise to ensure compliance with the Refuse Impact Reduction Laws. If the City and Franchisee cannot agree on a program within ninety (90) Days after initially commencing any meet and confer process, City shall be entitled to specify the program to be implemented. 7.23 Oversight of City Manager or Designee Performance of each of the provisions of this Agreement shall be under the direction of the City Manager or designee and the work in this Agreement shall be done in a thorough and workmanlike manner under the direction, and to the satisfaction, of the City Manager or designee. To this end, the City Manager or designee shall have the power to establish rules and regulations relating to the accumulation, Collection, Recycling, Transportation, Disposal, and management of Solid Waste not inconsistent herewith and/or as necessary to ensure compliance with laws, ordinances and regulations, and which the City Manager or designee finds are reasonably necessary for enforcement hereof or of Applicable Laws, ordinances and regulations, or for preservation of the public peace, health, and safety. Franchisee shall be given thirty (30) Days prior written notice of any such changes in rules or regulations excepting in those circumstances where the changes are necessitated by an immediate threat to the public health, safety and/or welfare. A-74 65 SECTION 8. Recordkeeping and Reporting 8.1 Recordkeeping Franchisee shall maintain Customer contact data, customer service, accounting, statistical, operational, and other records related to its performance as shall be necessary to provide reporting required by this Agreement and Applicable Laws, and to demonstrate compliance with this Agreement and applicable laws (such as, but not limited to, AB 939, AB 341, AB 1826, AB 876, AB 901, and SB 1383 statutes and corresponding regulations). Franchisee shall maintain adequate records, and corresponding documentation, of information required by Sections 8.2 and 8.5 of this section, such that the Franchisee is able to produce accurate monthly, quarterly, and annual reports, and is able to provide records to verify such reports. Franchisee will make these records available and provide to the City any record or documentation necessary for the City to fulfill obligations under applicable law including, but not limited to, AB 939, AB 341, AB 1826, AB 876, AB 901, and SB 1383 statutes and corresponding regulations; and, other current or future Federal, State, or local statutes and regulations, as amended. Upon request by the City, the Franchisee shall provide access to Franchisee’s requested records in a timely manner, not to exceed ten (10) business days from the time of the City’s request to Franchisee. 8.1.1 Record Retention and Security Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports. Franchisee’s records shall be stored in one central location, physical or electronic, that can be readily accessed by the Franchisee. The City reserves the right to require the Franchisee to maintain the records required in this Agreement through the use of a City-selected web-based software platform, at Franchisee’s expense. Franchisee shall retain all records and data required to be maintained by this Agreement for the Term of this Agreement pl us five (5) years after its expiration or earlier termination. Records and data shall be in chronological and organized form and readily and easily interpreted. Franchisee shall maintain adequate record security to preserve records from events that can be reasonably anticipated such as a fire, theft, and an earthquake. Electronically-maintained data and records shall be protected and backed-up. To the extent that Franchisee utilizes its computer systems to comply with record keeping and reporting requirements under this Agreement, Franchisee shall, on a monthly basis, save all system-generated reports supporting those record keeping and reporting requirements in a static format in order to provide an audit trail for all data required. City shall own all Customer data generated, received or retained by Franchisee related to Customers and services provided under this Agreement. A-75 66 8.1.2 City Ownership of Data Provided by Franchisee Notwithstanding the data provided to City by Franchisee, upon receipt of any and all data by Franchisee, ownership of data shall vest with City. City shall retain ownership of all data received by Franchisee for any and all services provided within the Franchise Area. 8.1.3 Billing Records The Franchisee shall maintain records of billings and receipts for a period of five (5) years after the date of service for inspection by the City upon request at no cost. 8.1.4 CERCLA Defense Records The City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), State Hazardous Substance Law, and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Discarded Materials Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be of utmost importance. The Franchisee shall maintain data retention and preservation systems which can establish where Solid Waste Discarded Materials Collected in the City was landfilled (and therefore establish where it was not landfilled) and provide a copy of the tonnage reports required in Section 8.5 for twenty-five (25) years after the Term during which Collection services are to be provided pursuant to this Agreement, or to provide copies of such records to the City. The Franchisee agrees to notify the City at least ninety (90) days before destroying such records. This provision shall survive the expiration of the Term of this Agreement. 8.2 Inspection of Franchisee’s Other Accounts and Records Franchisee's records of customer Complaints, Refuse Impact Reduction Laws compliance records, maps, billing records, Gross Receipts, franchise fee payments and Customer payment histories shall be available at the Franchisee's local office as set for th in Section 7.2 at any time during regular business hours for inspection on twenty-four (24) hours’ notice, and/or performance of financial review of Franchisee's records by the City or its duly authorized representative in accordance with the Agreed Upon Procedures (as such term is associated with standard audit procedures), for a period of five (5) years following the close of the Franchisee's fiscal year. Franchisee shall provide City with a copy of any requested record at no cost to City. 8.3 Payments and Refunds The City may annually perform an Agreed Upon Procedure of Franchisee's books and records. Should the performance of an Agreed Upon Procedure by the City disclose that the Franchise Fee or AB 939 Fee pa yable by the Franchisee was underpaid or that A-76 67 customers were overcharged for the period under review, Franchisee shall pay to City any underpayments of the Franchise Fee or AB 939 Fee and/or refund to Franchisee's Customers any overcharges. Should the perf ormance of an Agreed Upon Procedure by the City disclose that Franchise Fee or AB 939 Fee were overpaid, City shall promptly refund to Franchisee the amount of the overpayment. 8.4 Cost of Agreed Upon Procedures Should the City's performance of Agreed Upon Procedures disclose that the Franchise Fee or AB 939 Fee payable by the Franchisee was underpaid by three percent (3%) or more, or that Customers were overcharged by three percent (3%) or more, for the period under review, Franchisee shall pay for the cost of City's performing the Agreed Upon Procedures in addition to the reimbursing the City for the underpayment and/or refunded the Customers for their overpayment. 8.5 Reporting and Information Transfer 8.5.1 Reports and Data – Purpose and Format Franchisee shall maintain records and data in forms that facilitate preparation of useful reports, and the efficient transfer of needed data. All reports and data shall be adequate to enable the City to: a) Meet current and future reporting requirements to CalRecycle under Applicable Laws, including but not limited to AB 939, AB 341, AB 1826, and SB 1383. b) Monitor the individual SB 1383 compliance of the Franchisee’s Commercial Customers. c) Determine and set rates and evaluate the efficiency of operations. d) Evaluate progress toward the City’s waste Diversion and climate goals. e) Evaluate Customer service communications and Complaints. The Franchisee may propose report formats that are responsive to the City’s objectives. The City reserves the right to approve or modify the format of each report. The Franchisee will provide a statement with each report that the report is true and correct. 8.5.2 Customer Data Transfer. The Franchisee shall submit all reports by electronic means in a format compatible with the City’s computers and software. The City reserves the right to require Franchisee to periodically transfer Customer data via an Application Program Interface (API) to a City - A-77 68 selected web-based software platform (similar to ‘Minerva®’ or ‘Recyclist’), at Franchisee’s expense. 8.5.3 Reports-Schedule. Franchisee shall submit quarterly reports within thirty (30) calendar days after the end of each quarter. Franchisee shall submit annual reports before February 15 following the reporting calendar year. If requested by the City, the Franchisee shall submit to the City its Complaint summary, described in Section 6.10, within five (5) days of request. All reports shall be sent electronically to the City electronically (via email) to: City Manager (or designated representative) City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, CA 90275 publicworks@rpvca.gov 8.5.4 Reports – Quarterly. Quarterly reports shall include, at a minimum, the following information: a) The amount in tons of material Collected by the Franchisee for the quarter, sorted by type of material (Refuse, Recycling, Organics, Bulky Item waste, etc.) and type of Customer (Commercial, Roll-off, etc.). b) The number of tons taken during the quarter to each Facility and where the tons were Processed or disposed. c) A summary of the number of missed pickups. d) A summary of Commercial Customer information, including for each type of Customer: i. Total number of Commercial Customers; and ii. Number of each type of account subject to (i.e., ‘covered’) under AB 341 and AB 1826; and iii. Number of accounts compliant with SB 1383 via participation in Franchisee’s recycling and Organics recycling programs; and iv. Number of Customers with waivers by type of waiver (such as de minimis, physical space, Collection frequency); and A-78 69 v. Number of Customers participating in an Edible Food recovery program; and vi. The total number of Containers disposed due to the observation of Prohibited Container Contaminants; and vii. Number of Compliance Reviews (pursuant to Section 6.8) conducted during the quarter with a summary of the results; and viii. The number of Customers that received a Notice of Violation; and ix. Copies of public educational and outreach materials sent to commercial customers. e) A Summary of Roll-off Customer information, including: a. The number of loads hauled by type of Customer (permanent, C&D), and by material type. f) A summary of contamination monitoring activities, including: i. Results of Route Reviews (Section 6.2.1 ) performed during the quarter; and ii. Results of Waste Evaluations (Section 6.2.2) performed during the quarter; and iii. A list of all Customers issued warning notices for Contamination; and iv. A list of all Customers assessed Contamination Fees, if applicable; and g) Quarterly status of the Franchisee’s public education and outreach activities; and h) Narrative summary of any problems encountered (including scavenging) during the quarter and actions taken with recommendations for the City, as appropriate ; and i) Any other information requested by the City. 8.6 Annual Reports Franchisee shall prepare and submit an annual report that summarizes the information in the quarterly reports on an annual basis. In addition to the information in the quarterly reports, the annual report shall include, at minimum: A-79 70 a) The Franchisee’s annual waste Diversion rate calculated as follows: The total amount of Recycled Materials and Organic Waste Collected and Diverted from Landfills, divided by the total amount of Solid Waste Collected; and b) A recap of key events and accomplishments during the year; and c) Copy of Hazardous Waste Diversion records showing types and quantities, if any, of Hazardous Waste or Substances that was inadvertently Collected, but Diverted from Landfilling; and d) An inventory of vehicles and summary of the number of routes by type of service; and e) A summary of the Franchisee’s education and outreach accomplishments during the year; and f) A summary of information recorded in the Franchisee’s Complaint log (See Section 6.10); and g) A summary of the quantity of recycled-content products and recovered-organic products procured by Franchisee pursuant to Sections 6.6 and Section 6.6.1 of this Agreement; and h) Franchisee’s most recent BASIC Score determined by the Federal Motor Carrier Safety Administration; and i) Any of Franchisee’s terminal inspection reports resulting from the California Highway Patrol’s Basic Inspection of Terminals (BIT) program; and j) A summary of Franchisee’s Gross Receipts collected from Customers, and all fees paid to the City, during the previous calendar year; and k) Any other information requested by the City. 8.6.1 Proprietary Information: Public Records The City acknowledges that a number of the records and reports of the Franchisee are proprietary and confidential. Franchisee is obligated to permit City inspection of certain of its records, as provided in this Agreement, on demand and to provide copies to City where requested. City will endeavor to maintain the confidentiality of all proprietary information provided by Franchisee and shall not voluntarily disclose such proprietary information. Notwithstanding the foregoing, any documents provided by Franchisee to City that are public records may be disclosed pursuant to a proper public records request. A-80 71 City shall notify Franchisee of any such request affecting Franchisee’s records or reports at least five (5) business days prior to their release, to enable the Franchisee to seek a protective order or otherwise prevent disclosure; provided, however, that City's failure to provide such notice shall not be a breach of this Agreement. 8.6.2 Reporting of Adverse Information Franchisee shall provide the City two (2) copies (one to the City Manager or designee and one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications or other material relating specifically to the Franchisee’s performance of services pursuant to this Agreement, submitted by the Franchisee to, or received by the Franchisee 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 shall be submitted to the City simultaneously with the Franchisee filing or submission of such matters with said agencies. The Franchisee’s routine correspondence to said agencies need not be routinely submitted to the City but shall be made available to the City promptly upon the City’s written request. 8.6.3 Failure to Report The refusal or failure of Franchisee to file any required reports, or to provide required information to City, or the inclusion of any materially false or misleading statement or representation by Franchisee in such report shall be deemed a material breach of the Agreement and shall subject Franchisee to all remedies which are available to the City under this Agreement. The City shall have the right to inspect or review the specific documents or records required expressly or by inference pursuant to this Agreement, or any other similar records or reports of the Franchisee or its related party entities that the City shall deem, in its sole discretion, necessary to evaluate annual reports, compensation applications provided for in this Agreement and the Franchisee’s performance provided for in this Agreement. Failure to make such records readily available shall be deemed a material breach of this Agreement. A-81 72 SECTION 9. City Fees 9.1 Franchise Fee In consideration for the grant of the franchise provided in this Agreement, Franchisee agrees to pay the City a Franchise Fee equaling five percent (5%) of the Gross Receipts received by the Franchisee from the services provided in the City pursuant to thi s Agreement. 9.2 AB 939 Fee To aid the City in complying with the Refuse Impact Reduction Laws, and during the entire Term of this Agreement, Franchisee shall also pay to the City an AB 939 Fee of five percent (5%) of Gross Receipts received by Franchisee from the services provided in the City pursuant to this Agreement. Further, to the extent Franchisee can show by documentary evidence satisfactory to the City Manager or designee that Solid Waste was processed or disposed of in a manner that constitutes Diversion, the AB 939 Fee due for that period shall be reduced by the ratio of the Diverted Solid Waste to all Solid Waste collected during that period (e.g., if 10% of Solid Waste is Diverted, the AB 939 Fee for that period is reduced by 10%). 9.3 Payment Protocol All such Franchise Fees and AB 939 Fees required pursuant to this Section 9.3 shall be made to City within thirty (30) Days of the conclusion of each calendar quarter during the Term hereof, including any extension thereof. Upon the expiration of any such thirty (30) Day period, a delinquent assessment of twenty-five percent (25%) of the amount due per month, or Two Hundred Dollars Even (200.00) whichever is higher, shall be levied against any unpaid balance. Each payment of the Franchisee Fee and AB 939 Fee shall be accompanied by a statement setting forth the Gross Receipts collec ted by Franchisee and the computation of the total of each fee due. Each statement shall include the following certification executed by an officer of the Franchisee: "I hereby certify that the foregoing statement of the Franchise Fee and AB 939 Fee payments is made by me, that I am authorized to make such statement, and that, to the best of my knowledge and belief, it is true, correct and complete." No acceptance by City of any payment shall be construed as an accord that the amount is the correct amount, nor shall such acceptance of payment be construed as a release of A-82 73 any claim City may have against Franchisee for any additional sums payable under the provisions of this Agreement. All amounts paid shall be subject to independent audit and recompilation by City. A-83 74 SECTION 10. Rates 10.1 Franchisee Sets Rates; Discounted Rate for Recyclables Franchisee shall receive payment for services rendered under this Agreement according to rates set by the Franchisee as set forth in the service contract between Franchisee and Franchisee’s Customers. A-84 75 SECTION 11. Insurance and Indemnity 11.1 Insurance. Franchisee shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the policies of insurance contained in Exhibit A hereto. 11.1.1 Proof of Insurance Franchisee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 11.1.2 Duration of Coverage Franchisee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Franchisee, his agents, representatives, employees or subconsultants. 11.1.3 Primary Noncontributing Coverage provided by Franchisee shall be primary and any insurance or self -insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured. 11.1.4 Agency’s Right to Enforcement In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Franchisee or City will withhold amounts sufficient to pay premium from Franchisee payments. In the alternative, City may cancel this Agreement. A-85 76 11.1.5 Acceptable Insurance All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager. 11.1.6 Waiver of Subrogation All insurance coverage maintained or procured pursuant to this A greement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Franchisee or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Franchisee hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. 11.1.7 Enforcement of Contract Provision (Non-Estoppel) Franchisee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Franchisee of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 11.1.8 Requirements Not-limiting Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Franchisee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Franchisee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 11.1.9 Notice of Cancellation Franchisee agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage A-86 77 11.1.10 Additional Insured Status General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. 11.1.11 Prohibition of Undisclosed Coverage Limitation None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 11.1.12 Separation of Insured A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. 11.1.13 Pass-through Clause Franchisee agrees to ensure that its sub-consultants, sub-contractors, and any other party involved with the project who is brought onto or involved in the work by Franchisee, provide the same minimum insurance coverage and endorsements required of Franchisee. Franchisee agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Franchisee agrees that upon request, all Agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. 11.1.14 Agency’s Right to Revise Specifications The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Franchisee ninety (90) days advance written notice of such change. A-87 78 11.1.15 Self-insured Retentions Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. 11.1.16 Timely Notice of Claims Franchisee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Franchisee’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 11.1.17 Additional Insurance Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 11.2 Indemnification. Without regard to the limits of any insurance coverage, Franchisee agrees to indemnify, defend with counsel appointed by the City, protect and hold harmless the City, its representatives, officers, agents and employees against any and all fines, response costs, assessments, actions, suits, injunctive relief, claims, damages to persons or property, losses, costs penalties, obligations, errors, omissions or liabilities, (“claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with (i) violations of the commerce clause of the U.S. Constitution, Refuse Impact Reduction Laws, the Comprehensive Environmental Response, Compensation and Liability Act, Title 42 U.S.C. §9601 et seq. (“CERCLA”), HSAA, RCRA, any other Hazardous Waste laws, or other Federal, State or local environmental statutes, ordinances and regulations which arise from this Agreement; (ii) the negligent performance of the work or services of Franchisee, its agents, employees, subcontractors, or invitees, provided for in this Agreement; (iii) the negligent acts or omissions of Franchisee, or arising from Franchisee's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence, on the part of the City, its representatives, officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its representatives, officers, agents or employees, who are directly responsible to the City, and in connection therewith: A-88 79 a) Franchisee will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees, incurred in connection therewith; b) Franchisee will promptly pay any judgment rendered against the C ity, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work or services of Franchisee in this Agreement; and Franchisee agrees to save and hold the City, its officers, agents and employees harmless therefrom; c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Franchisee for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work or services of Franchisee in this Agreement, Franchisee agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. Franchisee's obligations in this Section 11.2 shall survive the termination or expiration of this Agreement. 11.3 Refuse Impact Reduction Laws Guarantee Indemnification. Without in any way limiting the indemnification provisions in Section 11.2 above, Franchisee unconditionally guarantees compliance for each of its Customers in the City with the requirements of the Refuse Impact Reduction Laws , to the extent permitted by law, as amended from time to time. Franchisee shall carry out its obligations under this Agreement so that the City will meet or exceed the Diversion requirements set forth i n the Refuse Impact Reduction Laws, and all amendments thereto. City and Franchisee shall reasonably assist each other to meet the City's Diversion requirements under the Refuse Impact Reduction Laws. In carrying out the provisions of this Section, Franchisee agrees to perform the following obligations at its sole cost and expense: a) Defend, with counsel approved by City, indemnify and hold harmless the City against all fines and/or penalties imposed by CalRecycle, if Franchisee fails or refuses to provide information relating to its operations which is required under this Agreement and such failure or refusal prevents or delays City from submitting reports required by the Refuse Impact Reduction Laws in a timely manner; b) Assist City in preparing for, and participating in, any review of the City's source reduction and recycling element pursuant to Public Resources Code Section 41825; A-89 80 c) Assist City in conducting any hearing conducted by CalRecycle relating to the Refuse Impact Reduction Laws, or in any other invest igative or enforcement manner undertaken by any agency; d) Defend, with counsel acceptable to City, and indemnify and hold harmless the City against any fines or penalties levied against it for violation of the Diversion requirements under the Refuse Impact Reduction Laws, provided that Franchisee's obligation to indemnify City shall be subject to the limitations set forth in Public Resources Code Section 40059.1 as may be amended from time to time; e) Cooperate with the City, should it seek to become its own enforcement agency, to the extent it may be permitted under State law. Franchisee's obligations in this Section 11.3 shall survive the termination or expiration of this Agreement. A-90 81 SECTION 12. Transfer of Interest. 12.1 Restrictions on Transfer The City, in entering into this Agreement, has placed a special value, faith and confidence in the experience, background, and expertise of the Franchisee in the field of waste Disposal. Such faith and confidence being a substantial consideration in the granting of this Agreement warrants the transfer restrictions provided in this SECTION 12. 12.2 Definition of Transfer As used in this Section, the term "Transfer" shall include any hypothecation, mortgage, pledge, or encumbrance of this Agreement by Franchisee, subject to the exceptions set forth in Section 12.4 below. A Transfer shall also include the transfer to any person or group of persons acting in concert of more than thirty percent (30%) of the present equity ownership and/or more than thirty percent (30%) of t he voting control of Franchisee (jointly and severally referred to in this Agreement as the "Trigger Percentages"), taking all transfers into account on a cumulative basis, except transfers of such ownership or control interest to an Affiliate owned or controlled by the present beneficial owners of Franchisee or members of their immediate family, or between members of the same immediate family, or transfers to a trust, testamentary or otherwise, in which the beneficiaries are limited to members of the transferor's immediate family. A transfer of interests (on a cumulative basis) in the equ ity ownership and/or voting control of Franchisee in amounts less than Trigger Percentages shall not constitute a Transfer subject to the restrictions set forth in this Agreement. In the event Franchisee or its successor is a corporation or trust, such Tra nsfer shall refer to the transfer of the issued and outstanding capital stock of Franchisee, or of beneficial interests of such trust; in the event that Franchisee or any general partner comprising Franchisee is a limited or general partnership or a limited liability company, such Transfer shall refer to the transfer of more than the Trigger Percentages in the limited or general partnership or limited liability company interest; in the event that Franchisee or any general partner is a joint venture, such Transfer shall refer to the transfer of more than the Trigger Percentages of such joint venture partner, taking all transfers into account on a cumulative basis. 12.3 Transfers Require City Approval Franchisee shall not Transfer this Agreement or any of Franchisee's rights in this Agreement, directly or indirectly, voluntarily or by operation of law, except as provided below, without the prior written approval of City Manager – unless the Transfer is of such significance that, in the sole discretion of the City Manager, the approval of the City Council is required – and if so purported to be transferred, such Transfer shall be null and void. Franchisee will submit its request for City consent to the City together with A-91 82 documents, including but not limited to: (i) the transferee's audited financial statements for at least the immediately preceding three (3) operating years; (ii) proof that the proposed transferee has municipal Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Franchisee; (iii) proof that in the last five (5) years, the proposed transferee has not suffered any citations or other censure from any Federal, State, or local agency having jurisdiction over its waste management operations due to any significant failure to comply with Federal, State, or local waste management law and that the transferee has provided the City with a complete list of such citations and censures; (iv) proof that the proposed transferee has at all times conducted its operations in an environmentally safe and conscientious fashion; (v) proof that the proposed transferee conducts its municipal Solid Waste and Recycling management practices in accordance with sound waste management practices in full compliance with all Federal, State, and local laws and all Applicable Laws regulating the Collection and Disposal of Discarded Materials waste, including Hazardous Waste; (v) proof that the transferee's officers or directors have no criminal convictions for fraud, deceit, false claims or racketeering with respect to the transferee's course of business; (vi) a “transition plan” describing how Franchisee proposes to efficiently transition the rights and obligations in this Agreement to the transferee or assignee without material disruptions to service, and (vii) any other information required by the City to ensure the proposed transferee can fulfill the terms of this Agreement, including the payment of indemnities and damages and provision of bonds and/or the Standards of Performance in Section 5.1, in a timely, safe, and effective manner. 12.4 Exceptions The requirement to obtain City approval for a Transfer shall not apply to any of the following: a) Any mortgage, deed of trust, sale/lease-back, or other form of conveyance for financing and any resulting foreclosure therefrom. b) A sale or transfer resulting from or in connection with a reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as amended or otherwise, in which the ownership interests of a corporation are assigned directly or by operation of law to a Person or Persons, firm or corporation which acquires the control of the voting capital stock of such corporation or all or substantially all of the assets of such corporation. c) A sale or transfer to an Affiliate of Franchisee owned or controlled by the present beneficial owners of Franchisee or members of their immediate family, or between members of the same immediate family, or transfers to a trust, A-92 83 testamentary or otherwise, in which the beneficiaries are limited to members of the transferor's immediate family. 12.5 Assumption of Obligations No attempted Transfer of any of Franchisee's obligations in this Agreement shall be effective unless and until the successor party executes and delivers to City an assumption agreement in a form approved by the City assuming such obligations. Following any such assignment or Transfer of any of the rights and interests o f Franchisee under this Agreement, the exercise, use and enjoyment shall continue to be subject to the terms of this Agreement to the same extent as if the assignee or transferee were Franchisee. 12.6 Release of Franchise City's consent to a Transfer shall not be deemed to release Franchisee of liability for performance under this Agreement unless such release is specific and in writing executed by City, which release shall not be unreasonably withheld. Upon the written consent of City to the complete assignment of this Agreement and the express written assumption of the assigned obligations of Franchisee under this Agreement by the assignee, Franchisee shall be relieved of its legal duty from the assigned obligations under this Agreement, except to the extent Franchisee is in default under the terms of this Agreement prior to said Transfer. Franchisee shall cooperate with the City and transferee or assignee to assist in an orderly transition of obligations and rights, including without limitation Franchisee timely providing route lists, billing information, etc., to the transferee or assignee. Heirs and Successors The Terms, covenants and conditions of this Agreement shall apply to and shall bind the heirs, successors, executors, administrators, and assigns of the Franchisee and City. A-93 84 SECTION 13. Defaults and Remedies 13.1 California Law This Agreement shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, or any other appropriate court in such county, and Franchisee covenants and agrees to submit to the personal jurisdiction of such court in the even t of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California. 13.2 Dispute; Default In the event that Franchisee is in default under the terms of this Agreement, the City shall have the right, but not the obligation, to give notice to Franchisee of the default and the reasons for the default. The notice shall include the timeframe in which Franchisee may cure the default. This timeframe is presumptively thirty (30) days, but may be extended by City, though not reduced, if circumstances outside the Franchisee’s control so warrant. If Franchisee does not cure the default, the City may take necessary steps to terminate this Agreement under this Article or to assess liquidated damages under Section 13.11. Any failure on the part of the City to give notice of the Franchisee’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement. 13.3 Waiver Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this A greement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any services by or payments from Franchisee shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. A-94 85 13.4 Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 13.5 Legal Action In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision in this Agreement, Franchisee shall file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement. 13.6 City’s Right to Perform or Transfer Service In addition to any and all other legal or equitable remedies, in the event that Franchisee, for any reason whatsoever, fails, refuses or is unable to Collect, Transport or Process any or all Solid Waste or Recyclables Discarded Materials as which it is required by this Agreement to Collect, Transport or Process, at the time and in the manner provided in this Agreement, City may undertake such services through its own employees or contract with another Solid Waste Enterprise for the performance of such services. 13.7 Attorneys’ Fees If either Party to this Agreement is required to initiate or defend or made a Party to any action or proceeding in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to all reasonable attorney’s fees and costs. Attorney’s fees shall include attorney’s fees on any appeal, and in addition a Party entitled to attorney’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not s uch action is prosecuted to judgment. A-95 86 13.8 Cooperation Following Termination At the end of the Term or in the event this Agreement is terminated for cause prior to the end of the Term, Franchisee shall cooperate fully with City and any subsequent contractor to assure a smooth transition of Solid Waste management services. Franchisee's cooperation shall include, but not be limited to, providing operating records needed to service all properties previously serviced by Franchisee under this Agreement. 13.9 Default for Criminal Activity Franchisee shall be in default of this Agreement should any of Franchisee’s officers or directors have a criminal conviction from a court of competent jurisdiction for any offence related to Solid Waste activities, or for any other activity involving: a) Fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement; or b) Bribery or attempting to bribe a public officer or employee of a local, State, or Federal agency in such person’s official capacity; or c) Embezzlement, racketeering, false claims, false statements, forgery, falsification or destruction of records, obstruction of justice, receiving stolen property, or theft. 13.10 Basis for Liquidated Damages The Parties recognize that if Franchisee recurrent ly fails to prevent and remediate nuisance conditions, the City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact number of damages which City and its citizens will suf fer. Therefore, the Parties agree that the liquidated damages established in this Agreement represent a reasonable estimate of the amount of such damages for such specific violations, 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 obtain an explanation of these liquidated damage provisions prior to entering this Agreement. Franchisee's Initials ________ City Initials ________ A-96 87 13.11 Remedies for Nuisance Violations; Liquidated Damages 13.11.1 Liquidated Damages In addition to any and all other legal or equitable remedies, in the event that Franchise e produces any nuisance condition, City may assess liquidated damages against Franchisee in the following amounts: a) $250 per day for every day the condition persists after City has given Franchisee written notice of the condition, for up to three (3) Days; b) $350 per day, beginning on the fourth day and every day thereafter that the condition either persists or recurs. 13.11.2 Nuisance Conditions For purposes of this Section, the term "nuisance conditions" shall include the following: a) Failure to duly collect Solid Waste and/or Recyclables Discarded Materials that have been properly set out for Collection through the willful or negligent conduct of Franchisee employees; b) Uncured damage to the property of third parties or customers through the willful or negligent conduct of Franchisee employees; c) Legitimate Complaints of rude or unprofessional behavior or conduct by Franchisee's employees in the course of their duties; d) Failure to perform route audits as required by Section 7.12 hereof; e) Unreasonable leakage or spillage of Solid Waste or other Collected materials from Franchisee's vehicles; f) Failure to immediately or promptly Collect Solid Waste or other materials that spilled or fell from Franchisee's vehicles onto public streets or third- party property; g) Poor maintenance of Franchisee's vehicles, Containers and equipment in violation of Sections 7.15 through 7.17 hereof; h) Violations of personnel standards and qualifications in contravention of Section 7.20 hereof; A-97 88 i) Any other failure to meet the Standards of Performance in SECTION 7 in such a manner as to give rise to a condition of public nuisance or threat to public health and safety. 13.12 No Waiver of City’s Police Powers or Legal Rights Nothing in this Agreement is intended to limit the power and ability of the City or any law enforcement agency to initiate administrative and/or judicial proceedings for the abatement of nuisance conditions or violations of any applicable law. Nothing in this Agreement shall waive or limit any other legal rights or recourses the City may have in response to Franchisee's repeated, material violations of the Standards of Performance in SECTION 7 or failure to mitigate nuisance conditions. 13.13 Force Majeure The time period(s) specified for performance of the provisions of this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Franchisee, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City if the Franchisee shall within ten (10) Days of the commencement of such delay notify the City Manager in writing of the causes of the delay; no extension of time for performance shall be granted, however, by reason of the unavailability of any Disposal Site or by reason of strikes, lockouts , or other labor disturbances, or breakage or accidents to vehicles, equipment, machinery or plants. The City Manager shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the City Manager such delay is justified. In no event shall Franchisee be entitl ed to recover damages against the City for any delay in the performance of this Agreement, however caused, Franchisee's sole remedy being extension of the Agreement pursuant to this Section 13.13. A-98 89 SECTION 14. Other Agreements of the Parties 14.1 Relationship of Parties The Parties intend that the Franchisee shall perform the services required by this Agreement as an independent Franchisee engaged by the City and not as an officer or employee of the City nor as a partner of or joint venture with the City. No employee or agent or Franchisee shall be or shall be deemed to be an employee or agent of the City. Except as expressly provided in this Agreement, the Franchisee shall have the exclusive control over the manner and means of conducting the Discarded Materials Solid Waste Collection Services performed under this Agreement, and all Persons performing such services. The Franchisee shall be solely responsible for the acts and omissions of its officers, employees, companies, subcontractors, Affiliates, and agents. Neither the Franchisee nor its officers, employees, companies, subcontractors, Affiliates, and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to the City employees by virtue of their employment with the City. 14.2 Permits and License Franchisee shall obtain, at its own expense, all permits and a City of Rancho Palos Verdes business license required by law or ordinance and maintain same in full force and effect throughout the Term of this Agreement. Franchisee shall provide proof of such permits, business license or approvals and shall demonstrate compliance with the terms and conditions of such permits, business license and approvals upon the request of the City Manager. 14.3 Notice All notices, demands, requests, approvals, disapprovals, pr oposals, consents, or other communications whatsoever which this Agreement contemplates or authorizes, or requires or permits either Party to give to the other, shall be in writing and shall be personally delivered, sent by telecopier or sent by registered or certified mail, postage prepaid, return receipt requested, or email to the extent mutually agreed by the Parties, addressed to the respective Party as follows: If to Franchise: _________________________ _________________________ _________________________ A-99 90 Email: _____________________ If to City: Director of Public Works City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 Phone: (310) 544-5252 Fax: (310) 544-5292 Email: publicworks@rpvca.gov With copy to: Aleshire & Wynder, LLP 18881 Von Karman Avenue, Suite 1700 Irvine, CA 92612 Attention: Dave Aleshire, City Attorney daleshire@awattorneys.com or to such other address as either Party may from time to time designate by notice to the other given in accordance with this Section 14.3. Notice shall be deemed effective on the date personally served or by facsimile or, if mailed, three (3) Days from the date such notice is deposited in the United States mail. A-100 91 SECTION 15. Miscellaneous Agreements 15.1 Entire Agreement This Agreement, including the Exhibits, represents the full and entire Agreement between the Parties with respect to the matters covered in this Agreement. No verbal agreement or conversation with any office, agent, or employee of the City, either before, during, or after the execution of this contract, shall affect or modify any of the Terms or obligations in this Agreement contained nor such verbal agreement or conversation entitle the Franchisee to any additional payment whatsoever under the Terms of this contract. 15.2 Section Headings The article headings and section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions 15.3 Laws and Regulations Franchisee shall observe all the terms of any City ordinance or resolution now in effect, or as the same maybe subsequently adopted or amended by the City, governing or affecting the Collection, removal and disposal of Municipal Solid Waste in the City of Rancho Palos Verdes. Franchisee further agrees to comply with all Applicable Laws, applicable County, State or Federal laws or regulations as they exist now or may subsequently be adopted or amended, governing the Collection, removal and Disposal of Municipal Solid Waste or related environmental laws. Franchisee further agrees to comply with all applicable State and Federal laws governing employment, wages, working conditions, use of materials, equipment, supplies and the like. Franchisee shall comply with all applicable immigration laws and regulations. 15.4 No Liability of City Officials No officer, employee or agent of the City shall be personally liable to the Franchisee, or any successor in interest, in the event-of any default or breach by the City or for any amount that may become due to the Franchisee or to its successor, or for breach of any obligation of the terms of this Agreement. 15.5 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. Where the terms of this Agreement conflict with the City’s Municipal Code, the A-101 92 Municipal Code shall govern. However, it shall not be deemed a conflict if this Agreement is narrower than, but not inconsistent with, the City’s Municipal Code. A-102 93 SECTION 16. Integration Amendments It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. This Agreement may only be amended at any time by the mutual consent of the Parties by an instrument in writing. This Agreement is intended, in part, to carry out City's obligation to comply with the provisions of AB 939, AB 341, AB 1826, and SB 1383, and/or other Applicable Laws and regulations promulgated thereunder, as amended from time to time. In the event that AB 939, AB 341, AB 1826, SB 1383 and/or other Applicable Laws or regulations enacted after this Agreement prevent or preclude compliance with one or more provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations. No other amendment of this Agreement shall be valid unless in writing duly executed by the Parties. 16.1 Severability In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties in this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 16.2 Exhibits Each of the Exhibits identified in this Agreement is attached hereto and incorporated in this Agreement and made a part hereof by this reference. 16.3 Conflict of Interest No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Franchisee warrants that it has not paid or given and will not pay or give any officer, employee or agent of the City any money or other consideration for obtaining this Agreement. A-103 94 16.4 No Joint Venture Neither the City nor any of its employees shall have any control over the manner, mode , methods, or means by which Franchisee, its agents or employees, perform the services required in this Agreement, except as otherwise set forth. Franchisee shall perform all services required in this Agreement independent from the City and shall remain at all times as to City a wholly independent entity with only such obligations as are consistent with that role. Franchisee shall not at any time or in any manner represen t that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Franchisee in its business or otherwise or a joint venture or a member of any joint enterprise with Franchisee. IN WITNESS WHEREOF, the Parties hereto do hereby set their hands and seals as of the day and the year first written above. CITY OF RANCHO PALOS VERDES [Hauler Name] By: __________________ By: ________________ Name: David Bradley Name: Title: Mayor Title: Approved as to form by: By: __________________ By: ________________ Name: William W. Wynder Name: Title: City Attorney Title: ATTEST: By: ________________________ Name: Teri Takaoka Title: City Clerk A-104 1 of 4 EXHIBIT "A" INSURANCE COVERAGES Franchisee shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City: (a) Commercial General Liability Insurance . Franchisee shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage, and $4,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. (b) Worker’s Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Franchisee against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Franchisee in the course of carrying out the work or services contemplated in this Agreement; and a policy of Employer’s Liability Insurance with limits of at least $1,000,000. Franchisee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. (c) Automobile Liability Insurance. Franchisee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Franchisee arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, h ired, non-owned or rented vehicles used or operated by Franchisee, in an amount not less than $3,000,000 combined single limit for each accident, and endorsed to include pollution liability (written on form CA 99 48 or its equivalent). (d) Umbrella or Excess Liability Insurance. Franchisee shall obtain and maintain an umbrella or excess liability insurance that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, includin g commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions: A-105 2 • A drop-down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason; • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; • Must include a non-contributory and primary coverage endorsement; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies. (e) If the Franchisee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Franchisee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Subcontractors. Franchisee shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated in this Exhibit A. GENERAL INSURANCE REQUIREMENTS All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Franchisee’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any Party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the ev ent any of said policies of insurance are cancelled, the Franchisee shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Exhibit A to the City Manager. No work or services under this Agreement shall commence until the Franchisee has provided the City with Certificates of Insurance, additional insured endorsement forms or A-106 3 appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. C ity reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following “cancellation” notice: Franchisee agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Independent Contractor’s insurers are unwilling to provide such notice, then Independent Contractor shall have the responsibility of notifying the Agency immediately in the event of Independent Contractor’s failure to renew any of the required insurance coverages or insurer’s cancellation or non-renewal. Franchisee's Initials ________ City Initials ________ City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Franchisee performs; products and completed operations of Franchisee; premises owned, occupied or used by Franchisee; or any automobiles owned, leased, hired or borrowed by Franchisee. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Franchisee’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects City or its respective elected or appointed off icers, officials, employees and volunteers or the Franchisee shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Franchisee agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Franchisee may be held responsible for the payment of damages to any persons or property resulting from the Franchisee’s activities or the activities of any person or persons for which the Franchisee is otherwise responsible nor shall it limit the Franchisee’s indemnification liabilities as provided in this Agreement. A-107 4 If the Franchisee maintains higher limits than the minimums shown above, City requires and shall be entitled to coverage for the higher limits maintained by Franchisee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. In the event the Franchisee subcontracts any portion of the work, the contract between the Franchisee and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Franchisee is required to maintain pursuant to this Exhibit A, and such certificates and endorsements shall be provided to Ci ty. Insurance required by this Agreement shall be satisfactory only if issued by companies qualified authorized to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Regist er, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Franchisee agrees that the minimum limits of the insurance policies may be changed accordin gly upon receipt of written notice from the Risk Manager. A-108 B-1 B-2 B-3 B-4 B-5 B-6 B-7 B-8 B-9 B-10