AMENDED AND RESTATED FACILITY OPERATIONS AGREEMENT
by and between
THE CITY OF SIGNAL HILL
(“City”)
and
EDCO TRANSPORT SERVICES, LLC
a California Corporation
(“EDCO”)
JUNE 11, 2024
ARTICLE 1.0 DEFINITIONS 3
1.1 Agency 4
1.2 Agency Parcel 4
1.3 Agreement 4
1.4 Agreements 4
1.5 Applicable Law 4
1.6 Assignment 4
1.7 Best Management Practices (“BMP”) 4
1.8 Buyback/Recycling Center 4
1.9 CEQA 5
1.10 City 5
1.11 City Council 5
1.12 Claims or Litigation 5
1.13 Commercial/Institutional Haulers 5
1.14 Conditional Use Permit 5
1.15 Construction and Demolition Material (“C&D Material”) 5
1.16 Correction Plan 6
1.17 1.17 E-Waste 6
1.18 Default 6
1.19 CIWMB 6
1.20 Development Agreement 6
1.21 Disposition and Development Agreement (“DDA”) 6
1.22 Divert or Diversion 6
1.23 EDCO 6
1.24 EDCO’s Costs 6
1.25 EDCO Parcel 6
1.26 Effective Date 7
1.27 EIR 7
1.28 Facility or MRF/TS 7
1.29 Facility Scope 7
1.30 Facility Throughput Guarantee 7
1.31 Final Plans and Specifications 7
1.32 Franchise Agreement and Franchise Ordinance 7
1.33 Hazardous Material 7
1.34 Host Fees 7
1.35 Household Hazardous Waste or HHW 7
1.36 Lee Lease 7
1.37 Lease 8
1.38 Local Enforcement Agency or LEA 8
1.39 Mixed Municipal Waste (“MMW”) or Refuse 8
1.40 MOU 8
1.41 Operational Obligations 8
1.42 Operational Year 8
1.43 Performance Standards 8
1.44 Permits 8
1.45 Permitted Waste 8
1.46 Person(s) 8
1.47 Planning Director 8
1.48 Project 8
1.49 Reasonable Business Efforts 9
1.50 Recovered Materials 9
1.51 Recyclable Materials 9
1.52 Selfhauler 9
1.53 Site 9
1.54 Site Map 9
1.55 Site Plan 9
1.56 Source Separated Recyclable Materials 9
1.57 Term 9
1.58 Transfer/Processing Report (“TPR”) 10
1.59 Trash Hauling Contract 10
1.60 Uncontrollable Circumstance 10
1.61 Unpermitted Waste 10
ARTICLE 2.0 TERM & GRANT OF AUTHORITY 11
2.1 Term 11
ARTICLE 3.0 PERMITTING 12
3.1 Legal Compliance 12
3.2 Permits 12
ARTICLE 4.0 FACILITY CONSTRUCTION & START-UP 13
4.1 Construction in Accordance with Final Plans and Specifications 13
4.2 Completion of Construction of the Facility by EDCO 14
4.3 Alterations After Construction Completion 14
4.4 Start-Up Period 14
4.5 Full Operations 16
4.6 Ownership of Improvements/Equipment 16
ARTICLE 5.0 PERFORMANCE STANDARDS 16
5.1 General Obligation 16
5.2 Environmental Performance Standards. 16
5.3 Trucks and Traffic Performance Standards. 18
5.4 Additional Performance Standards. 19
5.5 Remedies for Failure to Observe Performance Standards and Nuisance Violations 20
5.6 City Municipal Code Procedures 23
5.7 City’s Right of Entry 23
ARTICLE 6.0 OPERATIONAL OBLIGATIONS 24
6.1 Disposal and Recycling of City Refuse 24
6.2 Governance and Rate Setting 24
6.3 Host Fees 24
6.4 General Facility Operations 24
6.5 Facility Throughput Guaranty 25
6.6 Diversion of Permitted Waste 26
6.7 Materials Recovery Guaranty 26
6.8 Personnel and Subcontractors. 26
6.9 Facility Equipment 27
6.10 Receiving Hours 27
6.11 Facility Downtime 28
6.12 Scale Downtime; K Factor 28
6.13 Scales 28
6.14 HHW & E-Waste 28
6.15 Buyback/Dropoff Center 29
6.16 Visitor Education 29
6.17 Denial of Service 29
6.18 EDCO Trucks 29
6.19 Patents, Trademarks, Licenses 30
6.20 Facility Website; Further Operational Rules and Regulations 30
6.21 Signage 31
6.22 Non-Discrimination 31
6.23 Personal Property Taxes 31
6.24 Payment of Utility Charges 31
ARTICLE 7.0 UNPERMITTED WASTE 31
7.1 Screening and Removal of Unpermitted Waste 31
7.2 Inadvertently Accepted Unpermitted Waste 31
ARTICLE 8.0 OPERATIONAL OBLIGATIONS RELATING TO EDCO CRIMINAL ACTIVITY 32 ARTICLE 9.0 REPORTS, MONITORING & RECORDS 32
9.1 Transfer and Processing Report 32
9.2 Records Retention 32
9.3 Annual Monitoring Review 33
9.4 Periodic Financial Audits 34
9.5 Enhanced Performance Review 34
9.6 An Enhanced Performance Review may be undertaken administratively by the Planning Director, or by the City Council or such other authority as the City Council may direct 34
9.7 City Inspection 34
9.8 Public Records Act 35
ARTICLE 10.0 TRANSFER 35
10.1 Definition of Transfer 35
10.2 Transfers Require Approval 36
10.3 Exceptions 36
10.4 Assumption of Obligations 37
10.5 Release of EDCO 37
10.6 EDCO to Pay Transfer Costs 37
ARTICLE 11.0 AMENDMENTS 37
11.1 Initiation of Amendment 37
11.2 Procedure 37
11.3 Consent 37
11.4 Minor Modifications. 37
11.5 Effect of Amendment to this Agreement 38
ARTICLE 12.0 DEFAULT, REMEDIES AND TERMINATION 38
12.1 Rights of Nondefaulting Party after Default 38
12.2 Notice of Default and Opportunity to Cure 38
12.3 Non-Monetary Defaults., Longer Cure Period 38
12.4 Termination Upon Default 39
12.5 EDCO Hearing Opportunity Prior to Termination 39
12.6 Interest on Monetary Default 40
12.7 Crossdefault 40
ARTICLE 13.0 INDEMNITY AND ENVIRONMENTAL LIABLITY 40
13.1 Indemnity Obligations 40
13.2 Condition of Site and Site Operations. 40
13.3 Participation in Litigation; Indemnity 43
13.4 Survival of Indemnity Objections 44
ARTICLE 14.0 BODILY INJURY, PROPERTY DAMAGE, AND WORKERS’ COMPENSATION INSURANCE 44
14.1 Types of Insurance 44
14.2 Insurance Policy Form, Content and Insurer 44
14.3 Failure to Maintain Insurance and Proof of Compliance 45 ARTICLE 15.0 EFFECT OF AGREEMENT ON TITLE; ESTOPPEL 45
15.1 Binding on Successors 45
15.2 Enforceability as Covenants 45
15.3 Covenants Run with the Land 45
15.4 Estoppel Certificates 45
15.5 A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request 46 ARTICLE 16.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 46
16.1 Non-liability of City Officers and Employees 46
16.2 Conflict of Interest 46
16.3 Covenant Against Discrimination 46
ARTICLE 17.0 GENERAL 46
17.1 Waivers 46
17.2 Construction of This Agreement 46
17.3 Severability 47
17.4 Venue 47
17.5 Attorney’s Fees 47
17.6 Time of Essence 47
17.7 Force Majeure 47
17.8 Notice 47
17.9 Liquidated Damages & Costs Established in DDA, Development Agreement or Trash Hauling Contract 48
17.10 Survival 48
17.11 No Third Party Beneficiaries 48
17.12 Mutual Covenants 48
17.13 Relationship of Parties 48
17.14 Entire Agreement 48
17.15 Further Actions and Instruments 48
17.16 Counterparts 49
17.17 Authority to Execute 49
AMENDED AND RESTATED FACILITY OPERATIONS AGREEMENT
THIS AMENDED AND RESTATED FACILITY OPERATIONS AGREEMENT (this “Agreement”) is entered into on this day of June, 2024, by the CITY OF SIGNAL HILL (“City”), a municipal corporation, and EDCO TRANSPORT SERVICES, LLC, a California limited liability company (“EDCO”) (collectively, the “Parties”).
RECITALS:
Initial Facility Operations Agreement. The Parties executed a Facility Operations Agreement approved by the City Council on or around July 21, 2009 (“Initial Facility Operations Agreement”), and now desire to supersede it through this Agreement, which integrates revised provisions that reflect the current understandings and agreements between the Parties. Except as otherwise specifically set forth in this Agreement, the remaining provisions of the Initial Facility Operations Agreement shall remain in full force and effect only to the extent they remain applicable.
Recitals and Capitalized Terms. The recitals in this Agreement constitute part of this Agreement and each Party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Agreement. The capitalized terms used in these Recitals and throughout this Agreement shall have the meaning assigned to them in Article 1.0. Any capitalized terms not defined in Article 1.0 shall have the meaning otherwise assigned to them in this Agreement, one of the other Agreements, or apparent from the context in which they are used.
Integrated Waste Management Act. The State of California through enactment of the California Integrated Waste Management Act of 1989 (Public Resources Code Sections 40000 et seq. (the “Act”), has directed all local jurisdictions to promote recycling and to maximize the use of feasible source reduction, recycling and composting options in order to reduce the amount of solid waste required to be disposed of by land disposal. Furthermore, the Puente Hills Landfill, a major solid waste disposal facility for the region, is required by permit conditions to reduce the quantities of waste accepted and to close by the year 2013, resulting in the need for additional waste processing facilities and transfer stations to be developed in the region in order to meet the solid waste management needs of jurisdictions and protect public health and safety.
General Industrial Specific Plan. The City adopted the General Industrial Specific Plan (the “Specific Plan”) to promote industrial development in the General Industrial Area (generally bounded by California Avenue, Spring Street, Atlantic Avenue, and 27th Street and referred to herein as Street the “Specific Plan Area”), a blighted area due to environmental constraints such as oil wells (both active and abandoned), oil field pipelines and facilities, soil contamination, lack of public infrastructure, and small parcel sizes inhibiting land assembly for modern development. Concurrently with adopting the Specific Plan, and at the cost of approximately $9 Million, the Redevelopment Agency acquired an approximately 2-acre site within the Specific Plan Area and relocated a concrete batch plant to the location (“A&A Plant”). This was the first significant investment within the Specific Plan Area since oil exploration commenced in the late 1920s. EDCO or an affiliate of EDCO now owns a ± 3.57-acre site located at Patterson Street and California Avenue (“EDCO Parcel”) and across Patterson from the A&A Plant. The two projects represent an investment in excess of $20 million in the Specific Plan Area to revitalize the area.
City’s Interests and EDCO’s Qualifications. City has determined that it is in the best interest of City to delegate the responsibility for constructing, managing and operating waste disposal and recycling, facilities to a private company with experience and expertise in the construction, management and operation of materials recovery facilities and transfer stations. EDCO and its related companies are well known and have provided waste and recycling service in the State of California since 1967. EDCO and its related companies have built and currently operate thirteen (13) materials recovery and/or transfer stations ranging in capacities from 174 tons per day to 5,000 tons per day. In addition, an affiliate of EDCO, Signal Hill Disposal, has had the franchise contract to collect and dispose of refuse in Signal Hill since 1986. The initial franchise agreement was entered into on May 22, 2002 and Signal Hill Disposal extended the agreement and entered into a new franchise agreement concurrently with and as a condition of the Initial Facility Operations Agreement.
Development of Project. On July 8, 2008, in order to reduce blight and promote industrial development in the Specific Plan Area, expand and diversify the City’s revenue base, and fulfill the City’s obligation under the Act, City and EDCO, along with the Signal Hill Community Redevelopment Agency (“Agency”), entered into that certain Memorandum of Understanding (“MOU”) for the development and operation of a solid waste materials recovery facility/transfer station (“MRF/TS”) as more specifically described in the MOU (the “Project”). The Parties intend to provide for the long-term management of municipal solid waste generated in the City through the MRF/TS. The MRF/TS currently serves as a point to accept, process, recover, and transfer mixed municipal waste (“MMW”) and residue following diversion activities to an appropriate permitted disposal facility. The Project was developed on the EDCO Parcel and an approximate 6,500 square-foot “Agency Parcel” (the Agency Parcel and EDCO Parcel are collectively referred to as the “Site,” approximately 3.87 acres), which Site is shown on the “Site Map” attached hereto as Exhibit “A”. Agency and EDCO entered into a separate Disposition and Development Agreement establishing the terms to which interest in Agency Parcel was conveyed to EDCO.
Public Hearings. In accordance with the requirements of the California Environmental Quality Act (Public Resources Code Sections 21000, et seq. (“CEQA”)), appropriate studies, analyses, reports or documents were prepared and considered by the Planning Commission and the City Council for the Project. After a public hearing, the Planning Commission recommended to, and the City Council, after making appropriate findings, certified a Final Environmental Impact Report (“EIR”) for the Project, SCH # 2008081009, by Resolution No. 631-02-09 adopted on February 17, 2009 in compliance with CEQA. Also on February 17, 2009 the City Council, after providing public notice as required by law, held a public hearing to consider EDCO’s application for the Project. The Planning Commission and the City Council both found on the basis of substantial evidence that the proposed Project is consistent with all applicable plans, including the General Plan and General Industrial Specific Plan, rules, regulations and official policies of City. Accordingly, the City Council approved EDCO’s application for a Development Agreement and Conditional Use Permit. Subsequently, an Addendum to the EIR was prepared to address changes to the Project that would not result in any new significant impacts not addressed in the EIR, nor increase the significance level of any impacts identified in the EIR. After a public hearing, Planning Commission recommended and City Council adopted the Addendum by Resolution No. __, adopted on June __, 2024.
Other Agreements. The Parties understand that this Agreement is for the continued operation of the Project and intended to incorporate the current understandings and agreements between the Parties. The Parties also acknowledge that the following necessary documents, or amended version of these documents, have been, or will be, negotiated in order to fulfill the obligations and goals under the MOU to develop and operate the Project: (i) the Development Agreement (“Development Agreement”) approved by the City Council on February 17, 2009 vesting and defining EDCO’s rights and obligations to develop the Project; (ii) the Conditional Use Permit (“CUP”) approved by the City Council on February 17, 2009 to permit and impose conditions on the use of the Site for the Project; (iii) the Disposition and Development Agreement (“DDA”) between the Agency and EDCO for conveyance originally by lease of the Agency Parcel to EDCO for the development of the Project with an option to buy the Agency Parcel; (iv) a Reimbursement Agreement (“Reimbursement Agreement”) between the City and EDCO under which EDCO is obligated to reimburse or advance funds to City for all development costs associated with the Project, including but not limited to conducting environmental reviews under CEQA, processing and negotiating permits, entitlements and conditions, and legal costs; (v) an amendment to, or extension of, the existing agreement (“Trash Hauling Contract”) between City and EDCO to provide for the collection of mixed municipal waste and recycling from properties within City’s limits for collection, processing, and disposal by EDCO; and (vi) a set of covenants, conditions and restrictions (“CC&Rs”) devoting the Site to the uses specified therefor in the Redevelopment Plan and in the DDA. The foregoing agreements and instruments, together with all City ordinances approving the foregoing agreements and instruments, are collectively referred to as the “Agreements.” The Parties hereto acknowledge that this Agreement and the other Agreements bear overlapping impact upon the Site and EDCO’s operations, and thus the effectiveness of this Agreement is conditioned on approval and execution by the City and EDCO of each of the other Agreements.
This Agreement. This Agreement establishes the terms by which EDCO will operate and regulate use of the MRF/TS and related Site operations. The Parties further acknowledge that the Facility, as defined below, will be constructed, managed, operated, marketed and promoted in a professional manner.
Mutual Agreement. Based on the foregoing and subject to the terms and conditions set forth herein, the Parties desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and having determined that the foregoing recitals are true and correct and should be and hereby are incorporated into this Agreement, the Parties agree as follows:
DEFINITIONS
Whenever any term used in this Agreement has been defined by Division 30, Part 1 Chapter 2 of the California Public Resources Code or Applicable Law, the definitions in the Public Resources Code, or Applicable Law, as presently defined and as they may be amended in the future shall apply unless the term is otherwise defined in this Agreement. In the event of conflict between the definition of a term as found in the California Public Resources Code, or Applicable Law and this Agreement, the definition in this Agreement shall, unless otherwise mutually agreed in writing by the Parties, supersede the definition found in the Public Resources Code or Applicable Law.
Agency
. “Agency” means the Signal Hill Community Redevelopment Agency, a California public body, corporate, and politic.
Agency Parcel
. “Agency Parcel” means the approximately 6,500 square foot lot located at 859 Patterson Street, adjacent to the EDCO Parcel, which is necessary and originally proposed to be leased by Agency to EDCO for the development of the Project and currently owned by EDCO and which is more specifically shown and described in Exhibit “A”.
Agreement
. “Agreement” means this Agreement, including all exhibits and attachments which are incorporated herein by reference, as this Agreement may be amended. The exhibits include the following:
Exhibit A – Site Map
Exhibit B – Facility Scope & Components
Exhibit C – Host Fee
Exhibit D – Disposal Site Tipping Fees and Rates
Agreements
. “Agreements” means all those other contractual instruments identified in the preceding Recital H of this Agreement.
Applicable Law
. “Applicable Law” means all statutes, rules, regulations, guidelines, actions, determinations, Permits, orders, or requirements of the United States, State, County, City and local and regional government authorities and agencies having applicable jurisdiction, that apply to or govern the Facility, the Site or the performance of the Parties’ respective obligations hereunder, including any of the foregoing which concern health, safety, fire, environmental protection, labor relations, mitigation monitoring plans, building codes, zoning, non-discrimination, prevailing wages if applicable, and the Los Angeles County Integrated Waste Management Plan. All references herein to Applicable Law include subsequent amendments or modifications thereof, unless otherwise specifically limited in this Agreement or one of the other Agreements.
Assignment
. All forms of use of the verb “assign” and the nouns “assignment” and “assignee” shall include all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments.
Best Management Practices (“BMP”)
. “Best Management Practices” or “BMP” means structural, nonstructural, and managerial techniques recognized to be the most effective and practical means to reduce environmental impacts arising from the Project, whether affecting soils, air, water, noise, traffic, public infrastructure, public health/safety, or other impacts emanating from the Facility while still allowing the productive use of resources. BMPs also include treatment requirements, operating procedures, and practices to control Site runoff, spillage or leaks, sludge or waste disposal, trash or debris, or drainage from raw material storage or similar matters.
Buyback/Recycling Center
. “Buyback/Recycling Center” means the Site facility designed for the public drop-off of recyclables for redemption with scrap or California Redemption Value.
CEQA
. “CEQA” means the California Environmental Quality Act, Section 21000 et seq. of the California Public Resources Code and its implementing regulations and guidelines, including future amendments to or re-codification thereof.
City
. “City” means the City of Signal Hill, California, a chartered municipal corporation.
City Council
. “City Council” means the governing body of the City of Signal Hill.
Claims or Litigation
. “Claims or Litigation” means any challenge by adjacent owners or any other third parties as to (i) the legality, validity approval or adequacy of the Specific Plan, this Agreement, the other Agreements, the EIR, other development approvals, or other actions of City or Agency pertaining to the Project, (ii) EDCO’s exercise of the rights under this Agreement, or (iii) damages against City or Agency as a consequence of the foregoing actions or for the taking or diminution in value of their property, or (iv) damages against the City or Agency for injuries, losses or damages due to EDCO’s use of or operations on the Site, or (v) any repair, cleanup or detoxification, or preparation and implementation of any removal, remediation, response, closure, or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous waste and/or HHW (as such terms will be broadly defined) deposited after the commencement of Project construction at any place where EDCO delivers, stores, processes, composts, or disposes of solid waste, or (vi) Claims pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, “CERCLA”, 42 U.S.C. Section 9607(e), and California Health and Safety Code Section 25364, the Resource Conservation and Recovery Act, “RCRA”, 42 U.S.C. Sections 6901 et seq. or other similar federal, state or local law or regulation, or (vii) actions or injuries otherwise arising from the Project.
Commercial/Institutional Haulers
. “Commercial/Institutional Haulers” means (i) haulers delivering waste in the course of a commercial waste hauling enterprise, and (ii) waste hauling and deliveries performed by governmental entities in the course of public works projects or services. Commercial/Industrial Haulers do not include Selfhaulers.
Conditional Use Permit
. “Conditional Use Permit” or “CUP” means a permit issued by the City to permit and impose conditions on the use of the EDCO Parcel and the Agency Parcel for the MRF/TS. In the event of a clear and explicit conflict between the conditions stated in the CUP and those stated herein, which conflict cannot be resolved through interpretation, the terms of this Agreement shall prevail.
Construction and Demolition Material (“C&D Material”)
. “Construction and Demolition Material” or “C&D Material,” as included in Permitted Waste, means any combination of building materials and solid waste resulting from construction, remodeling, repair, cleanup, or demolition operations as defined in California Code of Regulations, Title 22 Section 66261.3 et seq. This term includes, but is not limited to, asphalt, concrete, Portland cement concrete, brick, lumber, gypsum wallboard, cardboard, and other associated packaging, roofing material, ceramic tile, carpeting; plastic pipe and steel. The material may be commingled with rock, soil, tree stumps; and other vegetative matter resulting from land clearing and landscaping for construction or land development projects.
Correction Plan
. “Correction Plan” means a plan undertaken by EDCO with City approval, for the correction or remediation of violations of Performance Standards and/or nuisance conditions pursuant to Section 5.5 of this Agreement.
1.17 E-Waste
. “E-Waste” means electronic waste such as consumer electronic equipment that is no longer wanted. E-Waste can include, but is not limited to computers, printers, televisions, VCR’s, cell phones, fax machines, stereos, and electronic games.
Default
. “Default” (used herein with a lower case initial letter, “default”) means any material default, breach, or violation of a provision of this Agreement as defined in Section 12.2 hereof. “City Default” refers to a Default by City, while “EDCO Default” refers to a Default by EDCO.
CIWMB
. “CIWMB” means the California Integrated Waste Management Board, as established pursuant to the Act (Public Resources Code §§ 4000 et seq.).
Development Agreement
. “Development Agreement” means that development agreement existing between the Parties as adopted by the City Council on February 17, 2009, or as amended. This Agreement is intended to be additional to, and consistent with said Development Agreement. This Agreement is an “Existing Land Use Regulation” for purposes of the Development Agreement.
Disposition and Development Agreement (“DDA”)
. “Disposition and Development Agreement” (“DDA”) means the agreement between the Agency and EDCO that has been negotiated between the Parties regarding the Agency Parcel.
Divert or Diversion
. “Divert” or “Diversion” means to divert from disposal facilities or transformation facilities (including incineration, pyrolysis, distillation, gasification or biological conversion) through source reduction, recycling and composting, as provided in Section 41780 of the Act as such act may be hereafter amended or superseded provided that Divert or Diversion shall include delivery to transformation facilities if the overall diversion achieved by the City is at a level where delivery to such facilities shall be considered Diversion pursuant to the Act.
EDCO
. “EDCO” means EDCO Transport Services, LLC, a California limited liability company.
EDCO’s Costs
. “EDCO’s Costs” means EDCO’s obligation to pay for all costs identified in the Reimbursement Agreement, including but not limited to: all Project development and construction costs, all costs of the environmental review, all costs for entitlement, all Host Fees, all operational costs and all other costs identified herein as the responsibility of EDCO.
EDCO Parcel
. “EDCO Parcel” means that certain approximately 3.57-acre parcel previously owned in fee by the Lee Family Trust, the Cockriel Family Trust and Philesp, LLC and currently owned by EDCO or an affiliate of EDCO for the construction and operation of the Project and which is shown and more specifically described in Exhibit “A”.
Effective Date
. Generally, the term “Effective Date” means the date that this Agreement has been fully executed, as written above.
EIR
. “EIR” means that final environmental impact report, SCH # 2008081009 certified by the City Council pursuant to a public hearing on February 17, 2009.
1.27.1 Addendum. “Addendum” means the Addendum to the environmental impact report, SCH # 2008081009 adopted by the City Council pursuant to a public hearing on June __, 2024.
Facility or MRF/TS
. “Facility” and “MRF/TS” mean the material recovery facility/transfer station to be operated by EDCO and the subject of this Agreement, including Site improvements, utility interconnections, the scale house, buy-back recycling center, household hazardous waste facility, a building for transfer and materials recovery and processing areas, and a visitors education center, together with administrative offices, parking areas, materials storage areas and ancillary support facilities, furnishings and equipment and any and all other physical structures and improvements to the Site or offsite improvements, and which is further described in the Facility Scope at Exhibit “B”.
Facility Scope
. “Facility Scope” means the components to, sale of and operational elements for the Facility and EDCO’s activities on the Site, and is set forth in Exhibit Facility Throughput Guarantee
. “Facility Throughput Guarantee” bears the meaning ascribed to it in Section 6.5 of this Agreement.
Final Plans and Specifications
. “Final Plans and Specifications” means the final construction and site plans for the Facility, including a complete description of all building locations, footprints, elevations, architectural elements, parking and traffic circulation, specific square footages and as approved by the City in writing pursuant to Article 4 of this Agreement.
Franchise Agreement and Franchise Ordinance
. “Franchise Agreement” and “Franchise Ordinance” mean, respectively, the prior agreement of the Parties granting EDCO an right to operate a large-scale MRF/TS within City limits for a period not-to-exceed fifteen (15) years and the authorizing ordinance adopting such facility franchise.
Hazardous Material
. “Hazardous Material” bears the meaning ascribed to it in Section 13.2(d)(5) of this Agreement.
Host Fees
. “Host Fees” mean payments by EDCO to City for hosting a MRF/TS within City’s limits.
Household Hazardous Waste or HHW
. “Household Hazardous Waste” or “HHW” means material used in residences that may threaten human health or the environment when improperly discarded and usually has one or more of the following characteristics: flammable, toxic, corrosive, and/or reactive.
Lee Lease
. “Lee Lease” means the previous lease between the Lee Family Trust, the Cockriel Family Trust and Philesp, LLC as Lessor and EDCO or EDCO’s affiliate as Lessee for the EDCO Parcel.
Lease
. “Lease” means the prior lease agreement between Agency as Lessor and EDCO as Lessee of the Agency Parcel, which Lease included an option for EDCO to purchase the Agency Parcel.
Local Enforcement Agency or LEA
. “Local Enforcement Agency” or “LEA” means the entity designated by the City and certified by the CIWMB to enforce federal and state laws and regulations for the safe and proper handling of solid waste at the Facility. Initially, the City has designated the County of Los Angeles as the LEA. The LEA performs routine and monthly investigations of the Facility, investigates complaints of illegal disposal of solid waste and administers a permitting and inspection program to ensure the Facility’s regulatory compliance.
Mixed Municipal Waste (“MMW”) or Refuse
. “Mixed Municipal Waste (“MMW”)” and “Refuse” mean all municipal solid waste including putrescible and non-putrescible solid, semi-solid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, street sweepings, recyclables and catch basin residue.
MOU
. “MOU” means the Memorandum of Understanding between City, Agency, and EDCO relating to agreements for a solid waste materials recovery facility/transfer station.
Operational Obligations
. “Operational Obligations” means EDCO’s obligations to operate the Facility in accordance with Article 6 of this Agreement.
Operational Year
. “Operational Year” means each 12 months following the Commencement of Operations Date and shall begin and end on the anniversary of the Commencement of Operations Date.
Performance Standards
. “Performance Standards” means EDCO’s obligation to operate the Facility in accordance with Article 5 of this Agreement.
Permits
. “Permits” are defined in Section 3.2, as renewed or amended from time to time.
Permitted Waste
. “Permitted Waste” means Refuse which the Facility may receive under its Permits and Applicable Law which is expected to include, without limitation: MMW, C&D Materials, greenwaste, E-Waste, HHW, Recyclable Materials and Source Separated Recyclable Materials.
Person(s)
. “Person(s)” means any individual, association, corporation, firm, joint venture, limited liability company, organization, partnership, trust, the United States, the State, a county, a municipality or special purpose district.
Planning Director
. “Planning Director” means the Director of Planning and Community Development or similar officer of City.
Project
. “Project” means EDCO’s construction and operation of the Facility and the negotiation of, and carrying out of, this Agreement and the related Agreements.
Reasonable Business Efforts
. “Reasonable Business Efforts” means those efforts a reasonably prudent business Person would expend under the same or similar circumstances in the exercise of such Person’s business judgment, intending in good faith to take steps calculated to satisfy the obligation which such Person has undertaken to satisfy.
Recovered Materials
. “Recovered Materials” means those materials recovered from Permitted Waste by any processing including the separation and removal of recyclable materials from the Permitted Waste, whether by manual or mechanical means, by EDCO at the Facility before any marketing or sales thereof.
Recyclable Materials
. “Recyclable Materials” means those materials which have been discarded, thrown away, or abandoned by the generator or owner thereof, and are commonly collected in recycling programs in southern California for the purpose of reprocessing or remanufacturing. The list of recyclable materials included, but is not limited to, the following: newspaper (including inserts, coupons, and store advertisements); corrugated cardboard; mixed waste paper including office paper, computer paper, magazines, junk mail, catalogs, kraft bags, paper, paperboard, egg cartons, phone books, brown paper, grocery bags, colored paper, construction paper, envelopes, legal pad backings, shoe boxes, cereal and other similar food boxes, tissue boxes, paper tubes, and wrapping paper; glass containers including brown, clear, and green glass bottles and jars; aluminum including beverage containers, foil, and food containers; milk and juice cartons and jugs; steel or tin cans; small scrap metal including metal coat hangars; plastic jugs, bottles, and containers including resins #1 through #7; used motor oil and oil filters.
Selfhauler
. “Selfhauler” means any Person who delivers Refuse or Recyclable Materials to the Facility on their own behalf. Selfhaulers consist of Persons hauling Refuse either in the course of their business or for residential purposes, but Selfhaulers do not include Commercial/Institutional Haulers.
Site
. “Site” means the real property, including the EDCO Parcel and the Agency Parcel (collectively the “Parcels”), which Site and Parcels are generally shown in the “Site Map” and are specifically described in the legal description of the Parcels all of which are set forth in Exhibit “A”.
Site Map
. “Site Map” means the site map showing the location of the Parcels attached hereto as Exhibit “A”.
Site Plan
. “Site Plan” means that scaled depiction of the Site and Project buildings, locations and square footages, as set forth in the Facility Scope at Exhibit “B.” Source Separated Recyclable Materials
. “Source Separated Recyclable Materials” means a type of Permitted Waste, means commingled and/or pre-sorted Recyclable Materials that are segregated from MMW prior to collection, including high grade paper, glass, metal, plastic, aluminum, newspaper, corrugated paper or other Recyclable Materials and delivered separately from other Permitted Waste.
Term
. “Term” means that period of time during which this Agreement shall be in effect and bind the Parties, as defined in Section 2.1.
Transfer/Processing Report (“TPR”)
. Transfer Procedures Report (“TPR”) means that report prepared by EDCO pursuant to CIWMB guidelines and Section 9.1 of this Agreement.
Trash Hauling Contract
. “Trash Hauling Contract” means the contract approved by the City to provide for the collection of Mixed Municipal Waste and Recyclable Materials from property within the City to the MRF/TS for collection, processing, and disposal.
Uncontrollable Circumstance
. “Uncontrollable Circumstance” means any act, event or condition that has delayed or prevented, or which the Parties hereto agree may be reasonably expected to delay or prevent, a Party from performing or complying with one of its obligations under this Agreement, including, without limitation, such acts, events or conditions as:
A change in law, including (i) the adoption, promulgation, amendment, modification, rescission, revision or revocation of any Applicable Law or change in judicial or administrative interpretation thereof occurring after the date hereof, and/or (b) any order or judgment of any federal, State or local court, administrative agency or governmental body issued after the date hereof, so long as such order or judgment is not the result of EDCO’s negligent or willful misconduct or criminal violation; Governmental action, inaction, restriction, initiative, referendum, moratoria, or processing with governmental agencies, the delay of which is not due to the negligent or untimely action or inaction of EDCO; or Earthquake, explosions, epidemic, quarantine, landslide, lightning, fire, flood and weather, including, without limitation, consecutive or numerous non-consecutive days of rain, snow or other inclement weather during the construction period; or other Acts of God; or Sabotage, acts of public enemy, war, riot, insurrection or civil disturbance, expropriation, confiscation; or Failure of any permitted subcontractor or supplier of goods, materials, services or other items required for performance of this Agreement (other than an affiliate of EDCO) to furnish such goods, services, materials or other items on the dates agreed to, which materially and adversely affects EDCO’s ability to perform its obligations and EDCO is not able to reasonably obtain substitute goods, services, materials or items on the agreed upon dates; or The condemnation, taking, seizure, involuntary conversion or requisition of title to or use of the Facility, the Site or any material portion or part thereof by the action of any federal, State, county, city or local governmental agency or authority.
In no event shall any act, event or condition that has occurred as a result of poor management practices or negligence of EDCO, or an employee or agent thereof, be an Uncontrollable Circumstance.
Unpermitted Waste
. “Unpermitted Waste” means hazardous, medical or radioactive wastes (except HHW) that the Facility may not receive or process under its Permits and Applicable Law. All elements of this definition shall conform to the provisions of the Permits, as such Permits may be amended from time to time, and the terms of the Permits shall prevail over the following illustrative list of Unpermitted Waste examples. The term “Unpermitted Waste” includes, without limitation:
Asbestos, including friable materials that can be crumbled with pressure and are therefore likely to emit fibers, being a naturally occurring family of carcinogenic fibrous mineral substances, which may be an Unpermitted Waste if it contains more than one percent asbestos; Ash residue from the incineration of Refuse;
Auto shredder “fluff” consisting of upholstery, paint, plastics, and other non-metallic substances which remain after the shredding of automobiles; Dead animals that are large (i.e., no more than 50 lbs.) in size; Industrial solid or semi-solid wastes which pose a danger to the operation of the Facility, including cement kiln dust, ore process residues; Infectious and bio-medical wastes which have disease transmission potential and are classified as hazardous by the State or County Health Services, including pathological and surgical wastes, medical clinic wastes, wastes from biological laboratories, syringes, needles, blades, tubing, bottles, drugs, patient care items such as linen or personal or food service items from contaminated areas, chemicals, personal hygiene wastes, and carcasses used for medical purposes or with known infectious diseases; Liquid wastes which are not spadeable, usually containing less than fifty percent solids, including cannery and food processing wastes, landfill leachate and gas condensate, boiler blowdown water, grease trap pumpings, oil and geothermal field wastes, septic tank pumpings rendering plant byproducts and sewage sludge; Radioactive wastes under Chapter 7.6 (commencing with Section 25800) of Division 20 of the State Health and Safety Code, and any waste that contains a radioactive material, the storage or disposal of which is subject to any other State or federal regulation; and/or Sewage sludge comprised of human (not industrial) residue, excluding grit or screenings, removed from a waste water treatment facility or septic tank, whether in a dry or semidry form.
TERM & GRANT OF AUTHORITY
Term
. The Term of this Agreement shall commence on the Effective Date and shall continue until August 31, 2069 (“Term”), unless earlier terminated as provided herein.
PERMITTING
Legal Compliance
. EDCO is required during every phase of the Project and operation of the Facility to maintain compliance will all Applicable Law including, but not limited to, the following:
CEQA
California Administrative Code, Titles 8, 14, 23, and 24 California Health and Safety Code
California Department of Motor Vehicles
California Integrated Waste Management Act
California Occupational Health and Safety Administration Federal Clean Water Act
Resource Conservation and Recovery Act
Clean Air Act
Applicable local, regional, and State air quality and water quality regulations State and local fire and building codes; electrical standards County Ordinance 348
Permits
. EDCO shall, with reasonable cooperation from the City, be responsible for obtaining all approvals, licenses, orders and permits required by Applicable Law for the operation of the Facility (“Permits”) and shall be solely responsible for maintaining such Permits in accordance with Applicable Laws. EDCO shall apply in a timely manner for such other Permits and approvals as may be required from other governmental or quasi-governmental agencies having jurisdiction over the Facility as may be required for the development of, or provision of services to, the Facility in accordance with the requirements set forth herein. The City shall cooperate with EDCO in its efforts to obtain such Permits and approvals. The City and EDCO shall cooperate and use reasonable efforts in coordinating the implementation of the Project with other public agencies, if any, having jurisdiction over the Site or the Project. Permits include, without limitation, the following:
Agency
Permit or Approval
City of Signal Hill
Certification of CEQA document
Zoning Ordinance Amendment amending the General Industrial Specific Plan (SP-1.9) Zoning Ordinance Amendment designating the site SP-19, Planning Area -3, on the Official Zoning Map Conditional Use Permit. Site Plan and Design Review
Lot Merger
Disposition and Development Agreement
Vacation of an unimproved alley right-of-way between California and Olive Avenues Vacation of Olive Avenue right-of-way between Patterson and 28th Streets Grading Permit / Proof of compliance with NPDES requirements (SWPPP and SUSMP) Right-of-way encroachment permit
Amendment to Non Disposal Facility Element
South Coast Air Quality Management District
Authority to Construct
Conformance with Rule 410 (Odor Control Plan)
State of California, Department of Conservation, Division of Oil, Gas end Geothermal Resources Site Plan (approval only related to oil and gas wells)
County of Los Angeles, Fire Protection Services
Plan Check
County of Los Angeles, Public Health
Amendment to Solid Waste Management Plan
Sanitation Districts of Los Angeles County, Sanitation District No. 5 Permit to Connect (sewer connection fee)
California Integrated Waste Management Board
Permit to Operate
Approval of Transfer Processing Report
Emergency Response Preparedness Plan
Odor Control Plan Vector Control Plan
Other approvals, licenses, orders and permits required by Applicable Law and with which EDCO shall remain in strict compliance throughout the Term of this Agreement include any order, permit or requirements imposed by a LEA and the California Department of Toxic Substances Control (“DTSC”).
FACILITY CONSTRUCTION & START-UP
Construction in Accordance with Final Plans and Specifications . Final Plans and Specifications for Facility construction must be substantially consistent with the terms of Article 4.0 of the Development Agreement and Exhibit “B” thereto. For purposes of this Section 4.1, the phrase “substantially consistent” means that the structural locations and square footages set forth in the Final Plans and Specifications may vary from the Project Maps and Scope of Development approved in the Development Agreement by no more than ±10%.EDCO shall construct the Facility in accordance with the Final Plans and Specifications approved by the City. EDCO shall not make any material change (i.e., a change of more than ±2% to any one feature of Facility or minor changes that cumulatively create a ±2% change in the Facility Scope as a whole) to the Final Plans and Specifications without the written consent of the City. Further, EDCO shall not construct the Facility in a manner which would violate any Permits, Applicable Laws, this or other Agreements, or require EDCO or the City to obtain any additional Permits, orders, licenses or approvals not contemplated in this Agreement or to modify existing Permits. EDCO shall maintain a copy of the Final Plans and Specifications on the Site during construction and shall update them regularly to indicate any changes subject to the terms of this Section. EDCO shall also make such Plans and Specifications available to the City for inspection upon request. As soon as is practicable after completion of Facility construction, EDCO shall submit to the City as-built Plans and Specifications showing the Facility as actually constructed (“As-Built Specifications”).
Completion of Construction of the Facility by EDCO
. Construction of the Facility will be deemed complete when EDCO has completed construction of the building(s) and other improvements shown on the Final Plans and Specifications. The City or Agency shall furnish EDCO with the Certificate of Completion for the Site within thirty (30) days of EDCO’s written request therefor, provided that the City/Agency can find that EDCO has completed all Facility construction required for the Site pursuant to the terms of this Agreement, the Agreements and Permits. The Certificate of Completion shall be drafted, issued, executed, notarized and recorded in accordance with the terms of Section 513 of the DDA.
Alterations After Construction Completion
. Except as provided below, once construction of the Facility has been completed, EDCO shall not make or permit any other person to make any substantial alterations to the Site and Facility improvements, or any tenant improvements, without prior written consent of the City. For purposes of this Section, an alteration of the Site is considered to be “substantial” if it requires the issuance of a City building permit. In the event EDCO determines that a substantial alteration or tenant improvement is necessary, such alteration shall not be undertaken without providing at least fourteen (14) days’ written notice to the City accompanied by plans and specifications detailing the proposed alteration. EDCO’s notice, plans and specifications for a proposed alteration must be provided to the City in a manner giving City staff sufficient time to thoroughly review the proposed alterations before determining whether to provide written City approval for said alterations (which approval shall not be unreasonably withheld). Notwithstanding the foregoing, EDCO shall be entitled, without need for written City consent, to make non-structural alterations to the Site and improvements thereon to the extent such alterations are intended to increase the efficiency of or to improve the appearance of the Site, the Facility and their operations, and which do not require City building permits.
Start-Up Period
. Within fifteen (15) days of receiving a Certificate of Completion, EDCO warrants the Facility will be ready to receive Permitted Waste (other than HHW). The Parties acknowledge that start-up volumes of Refuse throughput may be less than the Facility’s ultimate throughput capacity and that the Facility may start its operations in phases (i.e., one component of operation or Project Scope may start-up initially, with others phased-into operation at a later date). EDCO shall notify the City in writing of the date of operation start-up and of the volume and/or types of Permitted Waste that EDCO anticipates to be delivered for start-up activities. This notice of start-up shall also specify which Facility components (listed in Exhibit “B”) will go into operation on the commencement of start-up operations such that the City can conduct acceptance testing of said components pursuant to subsections (b) and (c) of this Section 4.4. The period of temporary start-up activities may continue for a period of up to six (6) months, unless otherwise agreed by the EDCO and the City in writing (the “Start-Up Period”). The City agrees that it shall not unreasonably deny an extension of the Start-Up Period; however, the City reserves the right to deny an extension of the Start-Up Period if such extension is unnecessary, unwarranted, or the result of unreasonable delays by EDCO, or if EDCO fails to use Reasonable Business Efforts to proceed with opening all Facility components (other than HHW, and with no obligation to install mechanical sorting equipment) and achieving satisfactory acceptance testing results. During the Start-Up Period, EDCO ensures that Facility operations will be undertaken without violation of any Applicable Laws or any breach of the Performance Standards and Operational Obligations applicable to EDCO’s operation of the Facility. The City shall issue, or has issued, to EDCO a temporary occupancy permit that is coterminous with the Start-Up Period.
Host Fee Commences with Start-Up Period. For purposes of calculating the Host Fee, the commencement of the Start-Up Period shall be deemed to be the commencement of Facility operations. For purposes of calculating Host Fee, the commencement of the Start-Up Period shall count as the commencement of Host Fee Year 1, as described in Exhibit “C.” Start-Up Phasing Synchronized with Acceptance Testing. Operations undertaken at commencement of the Start-Period shall include, without limitation, EDCO’s use of the transfer station for the processing and transfer of waste hauled by EDCO or its affiliate(s). Thereafter, EDCO will bring each and every Facility component (Exhibit “B”) into operation throughout, and prior to expiration of, the Start-Up Period such that the Facility may accept Permitted Waste from Selfhaulers and Non-EDCO haulers as well as EDCO affiliates. For each Facility component opened for operations after commencement of the Start-up Period, EDCO shall notify the City in writing at least two (2) days before such component is opened for operations or deemed operational. Upon receiving notice that a Facility component is ready for operations, the City and EDCO shall arrange a mutually-agreeable time to conduct acceptance testing of that component pursuant to the foregoing subsection (c).
Acceptance Testing. Acceptance testing shall be conducted for the purpose of ensuring that each Facility component complies with all requirements hereof, that it is capable of performing as required hereunder and that operations comply with all Performance Standards and Operational Obligations. Within five (5) days of performing each acceptance test, the City shall notify EDCO in writing if it is satisfied with the results of such testing (which notice of satisfaction shall not be unreasonably withheld). If the City is not, in its discretion, satisfied with acceptance testing results for a component, it shall promptly so inform EDCO in writing and EDCO shall exercise Reasonable Business Efforts to correct any operational deficiencies or shortcomings in the Facility component before acceptance testing is re-administered. All Facility components must achieve satisfactory acceptance testing before the Start-Up Period terminates (other than HHW, and with no obligation to install mechanical sorting equipment, which Facility components may be installed at a later time and subject to acceptance testing at such later time of installation or operation).
The Start-Up Period shall terminate when either (i) every component of the Facility is fully operational and passes acceptance testing, or (ii) the Start-Up Period expires without extension, whichever occurs first. If the Start-Up Period terminates with EDCO successfully completing acceptance testing for all Facility components the City shall issue to EDCO a regular occupancy permit for the Facility (the “Occupancy Permit”). EDCO’s failure to bring every component of the Facility into full operation with successful acceptance test results before the expiration of the Start-Up Period (as may be extended in writing by the Parties) shall qualify as a default of this Agreement pursuant to Article 12.0.
Full Operations
. Once an Occupancy Permit has been issued, EDCO shall maintain the Facility in a fully operational state, such that all Facility components identified in the Facility Scope (Exhibit “B”) will be capable of performing as required hereunder and capable of so operating in compliance with all Performance Standards and Operational Obligations (other than HHW, and with no obligation to install mechanical sorting equipment, which Facility components may be installed at a later time).
Ownership of Improvements/Equipment
. Unless otherwise specifically stated in this Agreement, the Parties acknowledge that all movable Site improvements and Facility equipment are, and will, be solely owned and controlled by EDCO, or that EDCO will be the sole lessee and/or contractor of such improvements and equipment. EDCO shall defend and indemnify City against all liability and loss arising from any competing claims of ownership.
PERFORMANCE STANDARDS
General Obligation
. Beginning from the Start-Up Period of Facility operations, EDCO covenants to comply with all Performance Standards throughout the Term of this Agreement and to perform its Operational Obligations with respect to Facility operation as required hereunder, by the Development Agreement, in accordance with accepted practice for comparable facilities, sound management and operations practice, the TPR, Final Plans and Specifications, Permits, Applicable Law, and any other covenants, conditions and restrictions pertaining to the Facility.
EDCO shall not use or permit the use of the Facility for any purpose other than those contemplated by this Agreement and the Development Agreement, and EDCO shall not-accept, transfer, recover or process any materials other than Permitted Waste and Refuse allowed pursuant its Permits and Applicable Laws.
Environmental Performance Standards.
Air Quality and Odor Standards. EDCO shall operate the MRF/TS in compliance with all requirements, recommendations, and best management practices (“BMPs”) for minimization and mitigation of air quality and odor impacts as detailed in Section 3.5 of the EIR, including but not limited to, compliance with all California Air Resources Board (“CARB”) and SCAQMD standards, rules, and regulations as described in that Section; implementation of the BMPs listed in Table 3.5-6 of the EIR including but not limited to pre-watering of soil prior to soil disturbances, use of dust suppressants to stabilize stockpiles, pre-watering of material prior to truck loading, and limitation of truck speeds and roadway cleaning, as described therein; implementation of the odor mitigation BMPs listed in Section 3.5.3.2 of the EIR, including but not limited to preparation of an Odor Management Plan for MRF/TSs, limitation of building openings to between 2 and 5 percent of the building walls, installation of a building misting system and fan system to control odors, and all of the other BMPs described therein. To minimize odors, EDCO will direct all Permitted Users and Selfhaulers to discharge Permitted Waste and will conduct all recovery and processing inside the buildings so designated in the Final Plans and Specifications. EDCO will load all MMW having potential for causing odor into transfer trailers promptly after receipt. EDCO will not allow any waste to remain on Site for more than 48 hours, EDCO will make dust masks available to employees, customers and members of the public while they are inside the MRF/TS during extant dust conditions.
Hazardous Materials Standards. EDCO shall operate the MRF/TS in compliance with all requirements, recommendations, and BMPs for minimization and mitigation of hazards and hazardous materials impacts as detailed in Section 3.6 of the EIR, including but not limited to, the methods for controlling vectors described in Section 3.6.3.2 of the EIR. EDCO shall comply with all mandatory project requirements and mitigation measures listed in Section 3.6.4 of the EIR, including but not limited to, abandonment of oil wells on the Site in conformance with the Oil Well Abandonment Procedures outlined in the City’s Project Development Guide, preparation of a soil management plan, ceasing work until clearance from City if previously unknown wells or pipelines are discovered, preparation of a methane assessment within 30 days of completion of rough grading, review of previously abandoned oil wells to determine whether they comply with current abandonment regulations and re-abandonment of same in conformance with current regulations, performance of a Human Health Risk Assessment of soil collected during the limited soil investigation, completing a plan check from the County of Los Angeles before removal of any previously unknown underground storage tanks, obtaining a “Dig Alert” identification number two working days prior to commencement of excavation activities.
Biological Resources Standards. EDCO shall implement the mitigation measure listed in Section 3.8.4 of the EIR to minimize impacts to biological resources, including avoiding impacts to active migratory bird nests and hiring of a biologist as required by the mitigation measure.
Cultural Resources Standards. EDCO shall implement the mitigation measures listed in Section 3.9.4 of the EIR to minimize impacts to cultural resources, including but not limited to, hiring of an archaeologist and paleontologist to establish procedures to be taken if cultural or paleontological resources are encountered, stoppage of work and notification of City if such resources are encountered, and stoppage of work and notification of the County Coroner if human remains are encountered.
Water Quality Standards. EDCO shall operate the MRF/TS in compliance with all requirements, recommendations, and BMPs for minimization and mitigation of water quality impacts as detailed in Section 3.10 of the EIR. Specifically, EDCO shall comply with all provisions of Section 3.10.3.1 of the EIR, including but not limited to, compliance with all requirements of the most recent State Construction Activity General Permit (NPDES) for storm water discharges associated with construction activity, submission of a Notice of Intent (“NOI”) and fee payment to the Los Angeles Regional Water Quality Control Board (“LARWOCB”) prior to commencement of construction activities, development of an acceptable Storm Water Pollution Prevention Program (“SWPPP”) that implements controls to reduce pollutants in storm water discharges from the Project Site to the BAT/BCT performance standard, compliance with local regulations associated with the Regional Board’s Municipal Storm Water Permit issued to Los Angeles County and co-permitees under NPDES No. CAS004001 and Waste Discharge Requirements Order No. 01-182, including the Standard Urban Storm Water Mitigation Plan (“SUSMP”) and all implementing local ordinances and regulations for the control of storm water pollution from new development and redevelopment. EDCO shall implement the BMPs listed in Section 3.10.3.2 of the EIR, including but not limited to, preparation of a SWPPP and Monitoring and Reporting Program, installation and implementation of silt fences, check dams, storm drain inlet protection, designated construction access points, concrete washout pits, on-site dust control, street sweeping, and all other requirements in that section. EDCO shall implement the treatment control BMPs, the source control BMPs, and the long-term BMP operations and maintenance requirements as described in EIR Section 3.10.3.3.
Noise Standards. EDCO shall comply with existing City noise standards during operation of the MRF/TS. Pursuant to Chapter 9.16 of the City Municipal Code, noise levels generated at the Facility shall not exceed seventy five (75) dB as measured at adjacent property lines. If the City receives more than one complaint that noise levels exceed such limit, the City may hire a certified acoustical engineer to measure Facility-related noise levels. EDCO shall be responsible to suspend or mitigate non-compliant noise if a violation is documented and reimburse the City for acoustical engineering costs. EDCO will cooperate with the Planning Director to address other substantiated noise complaints which can be mitigated through Reasonable Business Efforts. EDCO shall further use Reasonable Business Efforts to muffle all on-Site vehicles (including forklifts and loaders) operated by EDCO outside the confines of the building(s) on the Site.
Litter and Pest Vector Standards. EDCO shall maintain the Facility and Site in a neat and orderly condition, unfavorable to rodents and insects, including cleanup of litter and debris on Site and along roads near the Site, at a minimum, daily, or as frequently as necessary to comply with this Article. EDCO will develop and implement a rodent and insect• management program, including contracting with a professional pest control company to inspect the Facility on a periodic basis, no less often than once per month. In the event of apparent pest vector activity, within twenty-four (24) hours of City direction, EDCO shall implement vector control measures sufficient to remedy the vector nuisance.
Trucks and Traffic Performance Standards.
Traffic Circulation. Internal traffic circulation and ingress and egress from the MRF/TS shall comply with the Site Circulation Plan in Figure 3.3-3 of the EIR. Trucks en route to and departing from the MRF/TS shall follow the Off-Site Circulation routes shown in Figures 3.3-4 and 3.3-5 of the EIR. Employee shifts shall be scheduled so that employees do not arrive or depart during peak traffic hours, as detailed in Table 3.3-4 of the EIR.
Access Corridors. EDCO shall enforce measures to ensure that the designated access corridors are utilized in connection with the operation of the MRF/TS. EDCO shall implement daily litter pick-up on Site, along adjacent properties, adjacent streets and along the designated transportation corridors, such that any litter resulting from EDCO’s operation (including EDCO ‘s customers delivering waste to the Site) will be removed. EDCO’s obligation to cleanup debris in public right-of-ways and/or transportation corridors shall apply regardless of whether such debris was inadvertently spilled or intentionally dumped. The transportation corridors (with those designated for litter control) are as follows:
Willow Street — City limit to City limit
Spring Street — City limit to City limit (Litter Control Cherry to Atlantic) Cherry Avenue — City limit to City limit
California Avenue — Willow Street to Spring Street (Litter Control) Orange Avenue — Spring Street to 32nd Street (Litter Control) Pacific Coast Highway — City limit to City limit
Enclosure of Trucks. Commercial/Institutional Haulers and EDCO collection vehicles shall be enclosed and free of debris prior to leaving the Site to eliminate spillage. EDCO shall further exercise Reasonable Business Efforts to encourage Selfhaulers to cover their vehicles to eliminate spillage, including publicly-posted rules and instructions for the enclosure and/or securing of Refuse in Selfhauler vehicles. Persons repeatedly in violation of EDCO’s rules and regulations regarding the enclosure and securing of transported Refuse, or Persons who otherwise repeatedly cause Refuse spillage and residue, may be denied service at the Facility or EDCO may adopt a fine schedule for repeat violations of the enclosure requirement.
Traffic Queuing on City Streets. EDCO shall provide a level of services at the Facility such that City streets surrounding the Site shall be free of any queuing of vehicles entering or leaving the Facility other than occasional queuing and intermittent stoppages on 28th Street west of California Street which do not interfere with through traffic. EDCO shall manage vehicular queuing on 28th Street such that queue spillback shall not reach California Avenue. EDCO shall staff the Facility as needed to meet this Performance Standard and prevent interference with traffic circulation on all streets other than that portion of 28th Street immediately adjacent to the Site.
Vehicular Turnaround Time. EDCO will make Reasonable Business Efforts to ensure that each waste collection and delivery vehicle utilizing the MRF/TS is able to complete unloading at the Facility after no more than sixty (60) minutes, absent vehicle breakdown or driver negligence.
Additional Performance Standards.
Rotation of Refuse. Refuse will be moved off-site within 48 hours of delivery.
Lighting. All Site lighting shall be shielded to avoid off-site glare.
Reclaimed Water. The MRF/TS shall be developed for and shall use reclaimed water when available.
Green Building. In addition to the dust, odor and noise mitigations, EDCO intends to also utilize “green building” design concepts, including the use of recycled construction products, energy efficient environmental control systems and natural day listing. EDCO shall work with Southern California Edison to obtain grants for solar power systems, variable speed motors and other energy efficiency measures. Additional mitigation measures derived from the CEQA process undertaken while entitling the Project will be included in the Agreements.
Remedies for Failure to Observe Performance Standards and Nuisance Violations . The failure to observe any Performance Standards or regulatory agency requirements, or the provision of poor public service, or the production of any nuisance condition will subject EDCO to administrative procedures, potential liquidated damages and, ultimately, termination, for severe and repeated violations.
Complaints Received by City. Complaints received by the City regarding MRF/TS operations and EDCO performance will be transmitted by the Planning Director to EDCO via telephone, email or facsimile. EDCO shall investigate each complaint reasonably made, take corrective action and respond to the complaining party to the extent deemed necessary, and subsequently report any such action to the City by email. EDCO shall maintain a log of complaints received and corrective actions implemented in accordance with the requirements of the Facility’s Solid Waste Facility Permit as enforced by the LEA, which log shall be available for City inspection at the Facility during normal business hours.
Complaints Received Directly by EDCO. EDCO shall also take corrective action on any public complaints reasonably made that are directly received by EDCO. Complaints received by EDCO and EDCO’s corrective actions thereon shall also be entered into the log described in Subsection (a) above.
City Investigation. In the absence of public complaint, the City may also initiate its own investigation of the Facility. If the City, based on its own observations or investigations, discovers any conditions violating the terms of this Agreement (including but not limited to failure to observe any Performance Standards or regulatory agency requirements, or the provision of poor public service, or the production of any nuisance condition), City shall include a written description of the violation to EMWD with a time to cure. EDCO shall investigate all problems so identified by the City and take corrective timely action thereon and include such complaints and corrective actions in the log and the email report to the City as described in Subsection (a) above.
Nuisance Conditions. Repeated, substantiated complaints of, or continued conditions of, poor service quality, failure to observe Performance Standards, regulatory agency requirements, and/or nuisance conditions may be handled in the manner prescribed below. For purposes of this Section, the term “nuisance conditions” shall include, but is not limited to, the following:
Traffic queuing on City streets (other than minimal queuing on 28th Street per Section 5.3(d) hereof) and/or recurrent failures to meet standards for vehicular circulation onto, through and away from the Site as required by Section 5.3; Debris and litter attributable to EDCO’s operations and customers found in the immediate surrounding area near the Facility and along immediate access routes, traffic corridors and public rights-of-way as required by Section 5.2(g) and 5.3(b); Poor maintenance of EDCO trucks as required by Section 6.18; Violations of safety standards required under Applicable Law or by this Agreement; Use of unqualified or incompetent employees by EDCO in violation of this Agreement, including but not limited to violations of Section 6.8 hereof; Failure to operate a Visitor Education Program as described in Section 6.16 hereof; Odors exceeding those limits stated in the conditions of approval applicable to the Project, Section 5.2(a) hereof, and/or the EIR; Violations of the City’s noise ordinance and other noise-related requirements found in the conditions of approval applicable to the Project, Section 5.2(f) hereof, the EIR or Applicable Law; Any failure to maintain landscaping at the Site in an attractive and professional manner; Any failure to repair, reconstruct or repaint any structure(s) which have been damaged or have deteriorated, regardless of whether such deterioration is due to poor maintenance or through the course of normal wear and tear; Any similar recurrent violation of the Performance Standards or Operational Obligations stated in this Agreement.
Failure to operate centers for HHW processing (contingent on available governmental funding therefor), a Buyback/Recycling Center, or otherwise comply with the scope of operations and receiving hours described in Section 6.10 hereof; Any enforcement action taken by the LEA that requires closure of the Facility for any 24-hour period and/or requires a judicial or administrative remedy prior to re-opening the Facility; Knowingly accepting Unpermitted Waste;
Closure of the Facility in violation of this and other Agreements; Misconduct with respect to scale operations, knowingly misrepresenting measurements or persistent violations of Applicable Laws governing weights and measures; Notice of Violation. Violations listed in Section 5.5(d) above, as items (1) through (11) shall be deemed “minor” in nature, while violations in categories (12) through (16) shall be considered “major.” Repeated violations in any minor category may become major violations for purposes of this Agreement. Initially, when the Planning Director or a designated enforcement officer observes a violation, a verbal warning shall be given to the EDCO official or employee managing Facility operations. If the violation is thereafter repeated and, in the opinion of the City’s Planning Director or designated enforcement officer, EDCO has not taken timely, effective action to correct the violation and prevent its repetition, then the Planning Director or designated enforcement officer may issue a written notice of violation (the “Notice of Violation”) describing the violation, the period in which EDCO is required to cure the violation and a warning that continued violations can be subject to liquidated damages.
EDCO ‘s Right To Contest. Within five (5) business days after receiving the Notice of Violation, EDCO may submit a written response (the “Response”) to the Notice of Violation to the Planning Director. The Planning Director shall review EDCO’s Response and may further investigate the Facility. The Planning Director shall make a final determination regarding the Notice of Violation and the Planning Director shall deliver to EDCO a written conclusion concerning the Notice of Violation. Additionally, at the election of either Party, the Parties may meet to develop a written corrective action plan (“Correction Plan”) to prevent further occurrence of the problematic conditions established in the Notice of Violation. The Correction Plan shall be finally prepared by the City (or, at the election of the City, by EDCO) within ten (10) business days after the meeting between the Planning Director and/or City Manager designee and EDCO. The Correction Plan may include additional procedures, as deemed necessary by the Planning Director and/or City Manager designee, to assure that in the future the Facility will be operated in compliance with this Agreement.
Liquidated Damages. If a second Notice of Violation is issued for any minor violation after an initial verbal warning and thereafter the issuance of a written Notice of Violation that is not withdrawn pursuant to Subsections (e) or (f) above, then liquidated damages may thereafter be assessed against EDCO (as liquidated damages and not a penalty) by the Planning Director and/or City Manager designee in the amount of $250 for every day the condition persists. Further, if the minor violation for which liquidated damages were assessed recurs on three (3) or more days within a 60-day period following any assessment of liquidated damages, then starting on the fourth (4th) day that such violation either persists or recurs the amount of liquidated damages shall increase to $500 per day; minor violations subject to this escalation must be of the same type or category in order for enhanced liquidated damages to apply. In the event of a major violation, damages shall not be ascertained in an amount of $250, but rather the sum assessed shall be $500 per occurrence from the initial major violation.
Basis for Liquidated Damages. The Parties further recognize that if EDCO continues to fail to observe its Performance Standards, fails to prevent and remediate nuisance conditions, or fails to cooperatively undertake the procedures required by this Section 5.5 in a timely manner, 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 amount of damages which City and its citizens will suffer. Therefore, the Parties agree that the liquidated damages established herein 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.
EDCO Initials
City Initials
Further Remedies For Severe Or Persistent Violations. The provisions of Subsections (g) and (h) above are intended to give the Parties a remedy under this Agreement. short of termination or default; however, should EDCO’s violations be severe and repetitive or otherwise not reasonably subject to correction through liquidated damages, the Planning Director may, in their sole discretion, institute the procedures set forth in Article 12 hereof.
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 LEA to initiate administrative and/or judicial proceedings for the abatement of nuisance conditions or violations of any applicable law. Nothing herein shall waive or limit any other legal rights or recourses the City may have in response to EDCO’s repeated, material violations of Performance Standards or failure to mitigate nuisance conditions.
City Municipal Code Procedures
. The procedures set forth in Section 5.5 above are non-exclusive. In lieu of the procedures and remedies stated in Section 5.5, the City may, in its sole and absolute discretion, utilize any administrative citation or administrative procedures contained in the City Municipal Code relating to the abatement of nuisances and/or violations of the Municipal Code, including but not limited to the provisions of Municipal Code Chapter 8.13, as may be amended or renumbered; provided, the Agreement can only be terminated pursuant to the provisions of Article 12.
City’s Right of Entry
. City reserves any rights of entry it may have to the Site pursuant to law, as well as a right of immediate entry to the Site in the event an emergency situation that threatens public health, safety or welfare, and any other remedies available by law or under the terms of this Agreement or any other Agreements. Upon learning of the situation, City shall attempt to notify EDCO of the situation as soon as possible. Upon receiving such notice from City, EDCO shall immediately advise City whether EDCO is unable or unwilling to take responsive action or make arrangements for a third party to respond to the situation. City may immediately enter the Site, whether by its own forces or a contracted third-party, to respond to the situation if (i) City is unable to notify EDCO, or (ii) EDCO advises City that it is unable or unwilling to respond to the emergency situation, or (iii) EDCO’s inaction or delay manifests no intention of responding to the circumstances.
City’s entry to Site pursuant to this Section shall be without liability to City for any loss or damage that may accrue to EDCO’s merchandise, fixtures, or other property or to EDCO‘s business by reason thereof unless such loss or damage is caused by City’s negligence or willful misconduct.
Any costs, expenses or damages incurred by City in responding to circumstances warranting City’s entry to the Site shall be paid by EDCO. City shall send EDCO written notice and an invoice of all costs, expenses or damages reasonably incurred by City in its response to such circumstances. Within five (5) business days, EDCO may contest in writing the costs, expenses or damages, in whole or in part, identified by City. City shall consider EDCO’s written contest of costs, expenses or damages in good faith and determine, in the City’s sole discretion, whether to reject, accept in part, or accept fully the position taken by EDCO; City shall promptly notify EDCO of its determination in writing. EDCO shall reimburse to City all costs, expenses or damages as finally determined by City within ten (10) business days of issuance of the City’s final determination or, if EDCO never contested the costs, expenses or damages originally identified by the City, EDCO’s reimbursement shall be made within ten (10) business days of the City’s initial notice and invoice of costs, expenses or damages. If EDCO fails to make such payment when due, the same shall accrue interest as provided in Section 12.6 and shall be a material default of this Agreement, subject to all rights and remedies herein.
OPERATIONAL OBLIGATIONS
Disposal and Recycling of City Refuse
. All Refuse gathered from City facilities or from City operations may be deposited in the Facility without charge. EDCO shall use Reasonable Business Efforts to recycle such Refuse pursuant to the Act and this Agreement.
Governance and Rate Setting
. EDCO shall be permitted to set its own rates for various classes of customers of the MRF/TS in a manner which makes usage of the MRF/TS competitively attractive. EDCO shall set equal rates for equal service for all existing and future haulers operating within the City under an agreement granted by the City.
Host Fees
. As part of its Operational Obligations, EDCO shall pay Host Fees to the City and shall pay a $1 million Advance of Host Fees to the City, as described in more detail in Exhibit C hereto.
General Facility Operations
. EDCO shall be responsible for staffing the entire Facility during the term of this Agreement and any extensions thereto. EDCO shall exercise all Reasonable Business Efforts in maintaining and cleaning the Facility, including but not limited to the MRF/TS, Buyback/Recycling Center facilities, green waste areas, construction debris areas, administrative offices, employee areas, maintenance buildings, household hazardous waste operations, public education areas and all accessory operational areas. In addition, EDCO shall secure, pay, and maintain all certificates, Permits, government fees, licenses and inspections necessary for the operation of the Facility. EDCO shall pay all costs associated with the operations of the Facility including but not limited to accounting, purchasing, payroll, personnel, material marketing functions, general and administrative overhead costs including all costs of utilities required for operations. Furthermore, all operations of the Facility shall conform in all material respects to the standards contained in Permits, the Transfer/Processing Report (“TPR”), all Agreements including this Agreement, industry practices for similar facilities, sound management and operations practices, the Operations and Maintenance Manual, all Permit conditions and Applicable Law. In the event of any controversy or dispute over the meaning or application of these requirements, the decision of the City’s management shall be determinative, subject to a right of appeal to the City Council.
General Maintenance. EDCO shall maintain the Facility and the Site in good working order and repair, including landscape, building and equipment maintenance and repair; cleaning and painting the Facility; street sweeping; maintaining any spare parts inventory; and generally performing periodic maintenance in accordance with the TPR and Operations and Maintenance Manual. In anticipation of emergency operation during Facility equipment failure and/or power outages, EDCO shall maintain more than one loader on the Site for transfer operations, together with a standby generator. EDCO shall maintain the aesthetic appearance of the Facility and Site in accordance with the Plans and Specifications, and EDCO shall make Reasonable Business Efforts to perform preventative maintenance and implement landscaping/architectural elements as needed to prevent public complaints about the Site or Facility and to prevent the creation or maintenance of any public nuisance.
General Safety. EDCO acknowledges that worker safety and fire prevention is of critical importance to the City, and shall conduct Facility operations in a safe manner, in accordance with Applicable Law and any fire-related Permits, requirements of insurance carried pursuant to this Agreement and the Agreements, and standard practices in the waste management/materials recovery industry. EDCO will require that all pickers wear dust masks, steel-toed boots, safety glasses and gloves to the extent required by Applicable Law. EDCO will train all laborers in safety procedures in accordance with Applicable Law. EDCO shall direct traffic upon entry to the Site so that it travels, queues, unloads and exits in a safe manner. EDCO shall provide and maintain all necessary and appropriate fire control equipment, including but not limited to an alarmed sprinkler system, fire hoses and extinguishers.
Facility Throughput Guaranty
. Once it has received the Occupancy Permit and during the Term hereof so long as the Facility is operational, EDCO will use Reasonable Business Efforts to accept delivered Permitted Waste in a quantity equating to at least One Hundred Thousand Dollars ($100,000) in Host Fees payable to the City each Operational Year (the “Facility Throughput Guaranty”). This Facility Throughput Guaranty shall be in effect during any applicable period that Host Fees are paid to the City in the form of a draw-down on the $1 million Host Fee Advance, such that the Facility Throughput Guaranty shall be measured as a minimum One Hundred Thousand Dollars ($100,000) draw-down from the Advance each Operational Year commencing with the second Operational Year following execution of the Initial Facility Operations Agreement. The $100,000 threshold of the Facility Throughput Guarantee shall be adjusted by an 8% increase once every five (5) years during the Term beginning five (5) years after execution of the Initial Facility Operations Agreement.
Shortfalls In Facility Throughput. If EDCO fails to meet the Facility Throughput Guaranty during an Operational Year, EDCO shall cure such shortfall by paying the City the difference between any Host Fee that was paid during the Operational Year and $100,000. Any such shortfall paid to the City shall be deducted from Host Fees otherwise payable in subsequent Operational Years in excess of the Facility Throughput Guaranty. For example, if an Operational Year yields $75,000.00 in Host Fees to the City, EDCO shall, at the end of such Operational Year, pay the City $25,000.00 to make up the shortfall in the Facility Throughput Guaranty, and shall deduct $25,000 from the next Host Fees in excess of the Facility Throughput Guaranty otherwise payable to the City.
Diversion of Permitted Waste
. EDCO shall use Reasonable Business Efforts to maximize recovery and processing of delivered Permitted Waste and Diversion of Recovered Materials and marketing of such materials. EDCO acknowledges that this obligation is in addition to and not derogation of its Performance Standards, Operational Obligations and Facility Throughput Guarantee. Notwithstanding the foregoing, EDCO shall not be liable for damages or be deemed in default of this or other Agreements if it is meeting its Performance Standards, Operational Obligations and Facility Throughput Guarantee.
Materials Recovery Guaranty
. EDCO acknowledges, at the time of the Initial Facility Operation Agreement’s execution, that the City is mandated to meet the requirements of AB 939 that requires the City to Divert fifty percent (50%) of the City’s municipal solid waste away from landfills. Upon EDCO receiving the Occupancy Permit, at such time as EDCO elects to install mechanical sorting equipment, it will make Reasonable Business Efforts to recover, process and Divert Recovered Materials from delivered Permitted Waste collected within the City to assist the City with AB 939 compliance. Furthermore, the City anticipates that the State Legislature will adopt new legislation that will increase the minimum Diversion requirement. Upon the effective date of any new legislation that affects the Diversion requirements currently imposed by AB 939, EDCO and the City shall meet and confer in good faith to consider and mutually-agree to a method and allocation of responsibilities for implementing a revised or new Diversion program meeting such amended legislative requirements. In the course of meeting and conferring with regard to any revised or new Diversion program, the City and EDCO may consider, without limitation, the throughput of Recyclable Waste and recyclable rich waste, the quality of recovered materials, and the marketing of recovered materials.
Personnel and Subcontractors.
EDCO’s Employees. EDCO shall engage qualified and competent employees, including managerial, supervisory, clerical, maintenance, and operating personnel in numbers necessary for safe and efficient Facility operation and to perform EDCO’s Performance Standards and Operational Obligations. EDCO shall use Reasonable Business Efforts with the goal of hiring employees who are residents of City. EDCO shall inform City of its initial and continuing outreach programs to hire City residents. EDCO shall train its staff to perform work in a safe and efficient manner in accordance with the health and safety plan in the Operation and Maintenance Manual and the TPR and ensure that each staff person treats customers, Seithaulers and other members of the public with professionalism and courtesy.
Approved Subcontractor List. Prior to opening Facility operations, EDCO shall provide the City’s Planning Director with a complete list of subcontractors that EDCO may utilize for (i) Unpermitted Waste disposal and Hazardous Material disposal services, (ii) Facility management, or (iii) contract services that are a component of Facility operations. EDCO shall not utilize outside contractors except those expressly listed. The list of potential subcontractors shall described the type of contract work each subcontractor is licensed to perform and EDCO shall warrant that each listed subcontractor is duly licensed and qualified to perform the type of work that may potentially be performed by each subcontractor.
Use of Subcontractors. Facility subcontractors shall be utilized at EDCO’s sole cost (except to the extent paid as part of a joint cooperative effort with the County of Los Angeles or other governmental entity) and without any impact upon Host Fees paid to the City. All subcontractors shall be licensed as required under Applicable Law to perform their subcontracted work and obtain and maintain a City business license if required by Applicable Law. EDCO shall remain otherwise liable for the full and complete performance of its obligations hereunder, including the payment of Host Fees, and those obligations and duties under the other Agreements.
Facility Equipment
. EDCO shall employ and maintain all equipment necessary for the effective operation of the Facility, at its sole cost and expense, substantially in accordance with reasonable care according to industry standards, any Applicable Laws, the terms of any Permits or the Agreements, this Agreement, Operation and Maintenance Manual and the TPR.
Receiving Hours
. The MRF/TS may accept Permitted Waste twenty-four (24) hours per day, seven (7) days per week. EDCO hereby guarantees that, excepting Uncontrollable Circumstances, designated holidays and the terms of any Permits or Applicable Laws, the Facility will remain open for receipt of Permitted Waste at least six (6) days each week, with no less than five (5) days with eight (8) hours of operation and one six (6) hour day. The Buyback/Recycling Center will likewise be open no less than six (6) days per week at least between the hours of 10:00 a.m. and 4:00 p.m. EDCO shall post Facility receiving hours and holiday schedules in a conspicuous location at the Site and shall utilize all Reasonable Business Efforts to publicly circulate Facility hours and holiday schedules, which Efforts shall include, without limitation, providing public notice of such schedules on a website for the Facility or in newspapers of general circulation. Work schedules for the Facility shall be as follows:
Holidays. EDCO warrants that the Facility will close for no more than six (6) holidays per Operational Year. Each Operational Year, EDCO may choose the six designated holidays from any of the following:
New Year’s Day (January 1 every year);
Martin Luther King Day (third Monday each January);
Presidents Day/Washington’s Birthday Observed (third Monday every February); Memorial Day Observed (last Monday every May);
July 4th Independence Day;
Labor Day (first Monday every September);
Columbus Day Observed (second Monday every October);
Veterans’ Day (Nov. 11 every year);
Thanksgiving Day (fourth Thursday in November); and
Christmas Day
Additional Hours. In exigent circumstances and upon request of the City no less than one day in advance, EDCO shall accept, recover and/or process Permitted Waste at times other than those described in this Section above.
Facility Downtime
. EDCO shall use Reasonable Business Efforts to perform repairs and maintenance in such a manner as to minimize any interruption to the regular receipt of Permitted Waste. EDCO shall give the Planning Director one week’s notice of scheduled shutdowns for repair and maintenance. If EDCO cannot accept Permitted Waste or operate the Facility for any other reason, it shall give the Planning Director immediate telephonic notice followed by notice in writing explaining the cause of such downtime, the actions needed to bring the Facility back to full operational status and the nature and expected duration of the shutdown and its impact on EDCO’s Performance Standards and Operational Obligations.
Scale Downtime; K Factor
. In order to meet its guarantee to maintain receiving hours at 5 days per week, EDCO shall take all Reasonable Business Efforts to take preventative maintenance measures with respect to all scales and equipment utilized in the course of receiving Permitted Waste such that scale and equipment downtime is minimized. To the extent practicable, if any scale is inoperable, being tested or otherwise unavailable, vehicles shall be weighed on the remaining operating scales.
In the event of multiple scale failures that significantly impact EDCO’s ability to weigh-in Permitted Waste, achieve requirements for vehicular turn-around and meet the limits on vehicular queuing in public streets required by this Agreement and the Agreements, then EDCO shall utilize a waste volume conversion factor “K-factor” for estimating vehicle weight. EDCO shall utilize this K-factor flat rate for the calculation of Permitted Waste receipts and Host Fees until such time that Facility scales are repaired to a fully operational condition in accordance with Applicable Laws. EDCO shall use all Reasonable Business Efforts to immediately and promptly repair and/or replace, in a fully professional manner, scales that are non-functioning and/or functioning at an accuracy or precision that is not compliant with Applicable Laws.
Scales
. EDCO shall test and calibrate all scales in accordance with Applicable Law. Upon City request, it shall provide the City with copies of scale testing results, including but not limited to any results from State-conducted inspections. EDCO shall further test and calibrate any or all scales upon written request therefore by the City, within three days of such request. If such test results indicate that the scale or scales comply with Applicable Law, the City will reimburse EDCO the direct costs of such tests, not including the cost of personnel time utilized in conduction such test. If City-requested test results indicate that the scale or scales did not comply with Applicable Law, then all weight measurements recorded and Host Fees calculated, charged and paid, as the case may be, from the date of such request, shall be adjusted and corrected consistent with the results of such test. Commercial collection vehicles and transfer trucks shall be assigned a number for weighing purposes. Tare weights shall be checked at least annually or promptly upon City request.
HHW & E-Waste
. The Facility shall provide a location for Signal Hill residents to dispose of E-Waste free of charge. In addition, EDCO will endeavor to establish a permitted HHW disposal area on-Site which will be contingent on funding through the County of Los Angeles. Upon the construction of a HHW area, recyclable HHW may only be delivered or directed to the HHW collection area depicted in the Final Plans and Specifications during HHW receiving hours; EDCO will from thereon recover, process and market such HHW materials. EDCO will provide for, or arrange, the recycling and/or reuse of such HHW materials at permitted facilities other than landfills, through licensed contractors, in accordance with Permits and Applicable Law, and will exercise Reasonable Business Efforts to not otherwise dispose of such HHW materials.
Buyback/Dropoff Center
. EDCO will accept Source Separated Recyclable Materials delivered to the Buyback/Recycling Center by Selfhaulers during Buyback/Recycling Center Receiving Hours and will recover, process and market such materials. EDCO shall establish and post at the Buyback/Dropoff Center prices to be paid for the Recyclable Materials and shall pay such prices to haulers upon delivery thereof. Fees set by EDCO shall be in its reasonable discretion based on then existing volumes, markets and transportation costs.
Visitor Education
. Beginning with the Start-Up Period of Facility operations, EDCO shall provide public access to the Facility for purposes of educating visitors about solid waste and recycling management and demonstrating the activities of the Facility. Areas used for public education shall include an observational gallery and a location suitable for audio/visual or multimedia presentations and suitable technical equipment therefor. EDCO shall implement a public education program to include some or all of (i) visitor presentations on source reduction, recycling and solid waste management (ii) tours of the Facility; (iii) visual presentations on the role of recycling and evolving developments in the business of solid waste management; (iv) dialogue on, and direct interaction with, the evolving practices of solid waste management; and (v) distribution of educational and promotional materials. EDCO shall set visitor education hours and establish reasonable rules and regulations for visitors such that the education program will not unreasonably interfere with Facility Operations or pose a safety risk. Single groups of five (5) or more Persons seeking to visit the Facility shall made advance arrangements with EDCO.
Denial of Service
. EDCO shall have the right to refuse to provide service to any Person seeking to utilize any component of the Facility if, (i) in the reasonable judgment of EDCO, providing service to such Person would result in a risk of loss or liability to EDCO, or (ii) such Person fails to comply with Applicable Law or the rules and regulations imposed by EDCO in accordance with this. Agreement, or (iii) such Person has previously delivered, or attempted to deliver, Unpermitted Waste to the Facility, or (iv) or, Refuse has accumulated beyond Facility capacity or Refuse limits imposed by Permits and/or Applicable Laws, or (v) such Person delivers waste outside established receiving hours, or (vi) emergency circumstances and Uncontrollable Circumstances prevent service to the Person.
EDCO Trucks
. EDCO shall at all times maintain all of its vehicles in good condition, so that each vehicle operates properly and safely. EDCO acknowledges that it is important to the City that EDCO presents a professional and pleasing image. Therefore, EDCO shall wash all vehicles and shall repaint all vehicles (including trim) as often as necessary to present a professional image.
Truck Bodies. All truck bodies used by EDCO shall be constructed of metal, water-tight and leak proof, and shall be constructed to prevent odors and falling, leaking or spilling of Refuse. Each vehicle shall carry, at all times, a broom and shovel to be used for the immediate removal of any spilled material. Each vehicle shall also carry a fire extinguisher and first aid kit.
Safety Markings. EDCO shall ensure that all its vehicles used off-Site bear all necessary and appropriate safety features, including highway lighting, flashing and warning lights, clearance lights, and warning flags, in accordance with the requirements of the California Vehicle Code and other Applicable Law.
Identification. EDCO shall ensure that its name, telephone number, and the vehicle number shall be visibly displayed on all vehicles in letters and figures not less than four (4) inches high on each side and the rear of each vehicle used off-Site. In addition, EDCO may design and produce interchangeable signs for its vehicles containing messages designed to alert the public to special waste management programs in English and additional languages as deemed appropriate by EDCO. EDCO agrees that all such vehicular signage shall comply with the requirements of the California Vehicle Code and other Applicable Laws.
Registration. EDCO shall register all vehicles, except those vehicles used solely on the Site, with the California Department of Motor Vehicles in accordance with Applicable Law. EDCO shall obtain a certificate of compliance (smog check) issued pursuant to Part 5 of Division 26 of the California Health and Safety Code (Section 43000, et seq.) and the regulations promulgated thereunder and/or a safety compliance report issued pursuant to Division 14.8 of the California Vehicle Code (Section 34500, et. seq.) and the regulations promulgated thereunder, as applicable to each vehicle. EDCO shall maintain copies of registration certificates and reports and shall make them. available for inspection upon request by the City. EDCO shall also obtain and maintain certificates of compliance to comply with SCAQMD fleet vehicle emissions requirements.
Truck Emissions. All of EDCO’s vehicles shall comply with South Coast Air Quality Management District (“SCAQMD”) regulations for fleet vehicle emissions. The noise level generated by any vehicles using compaction mechanisms during the stationary compaction process shall not exceed seventy-five (75) decibels at a distance of twenty-five (25) feet from the vehicle measured at an elevation of five (5) feet above ground level using the “A” scale of a standard sound level meter at slow response, or Applicable Law, whichever is more stringent. EDCO shall provide a fleet of vehicles sufficient in number and capacity to perform the services required under this Agreement.
Patents, Trademarks, Licenses
. EDCO and its affiliates shall hold or possess a right to use all patents, rights to patents, trademarks; copyrights and licenses, as the case may be (“Proprietary Property”) of any equipment or software not owned by the City necessary for the performance by EDCO of its Performance Guarantees and Operational Obligations and the transactions contemplated by this Agreement and the Agreements. As of the date hereof, EDCO represents that it does not know any material conflict regarding rights to Proprietary Property.
Facility Website; Further Operational Rules and Regulations . EDCO shall establish and maintain, at its sole cost, a publicly-accessible website dedicated to informing the public about the Facility, its hours, holiday schedule, location, requirements and guidelines for Selfhaulers using the Facility, and any other Facility information pertinent to public users. The website shall also provide an email address and telephone number for the public to contact Site management. EDCO shall establish guidelines and operating procedures and instructions regarding the use of the Facility by Selfhaulers and members of the public and shall include, without limitation, instructions for the enclosure and/or securing of Refuse in Selfhaulcr vehicles in order to prevent Refuse spillage or residue. EDCO shall prominently post such guidelines and program parameters at the Site and upon the publicly-accessible website. Persons repeatedly in violation of EDCO’s guidelines regarding the enclosure and securing of transported Refuse, or Persons who otherwise repeatedly cause Refuse spillage and residue, may be denied service at the Facility or EDCO may adopt a fine schedule for repeat violations of the enclosure requirement.
Signage
. All EDCO on-Site signage must comply with the City’s Sign Ordinance. No advertising material or signs shall be painted, installed, erected or displayed on a building exterior without first obtaining written City approval.
Non-Discrimination
. EDCO shall not discriminate in the use of the Facility on account of race, color, national origin, ancestry, religion, sex, sexual orientation, marital status or disability.
Personal Property Taxes
. EDCO shall pay, before they become delinquent all taxes, assessments, or other charges levied or imposed by any governmental entity on the furniture, trade fixtures, appliances, and other personal property placed by EDCO in, on, or about the Site.
Payment of Utility Charges
. EDCO shall pay all charges for the furnishing of gas, water, electricity, telephone services, and other public utilities to the Site during the Term of this Agreement or any extension thereof, as well as any utility taxes that may be applicable to the Site.
UNPERMITTED WASTE
Screening and Removal of Unpermitted Waste
. EDCO shall not knowingly accept Unpermitted Waste at the Facility or elsewhere in the City. EDCO shall implement an Unpermitted Waste exclusion program in accordance with Permits and Applicable Law, including video camera filming of Refuse disposal on the tipping floor with record of the date and time thereof, in order to attempt to prevent acceptance of Unpermitted Waste.
EDCO may inspect all vehicles entering the MRF/TS and all materials therein, before and after unloading, and shall inspect all vehicles in accordance with the exclusion program. EDCO shall reject any Unpermitted Waste discovered in vehicles or during tipping thereof and require that all Persons remove such Unpermitted Waste from their vehicle and from the Site. If EDCO reasonably determines that it is impracticable to remove such items, then EDCO may deem the entire load to comprise Unpermitted Waste and shall have the right to refuse to accept the entire load.
Inadvertently Accepted Unpermitted Waste
. If EDCO inadvertently receives delivery of any Unpermitted Waste, it shall classify, treat and/or transport or arrange for the transportation of such Unpermitted Waste from the Facility to a disposal facility that may accept the Unpermitted Waste under Applicable Law, as necessary. Neither EDCO nor the City shall countenance or knowingly permit the delivery of Unpermitted Waste to the Site, nor countenance or knowingly permit the storage of Unpermitted Waste at the Site.
EDCO shall pay all costs and expenses incurred in the handling, transportation and disposal of inadvertently-accepted Unpermitted Waste, including any applicable subcontractor charges and fees. The City and EDCO shall use Reasonable Business Efforts to identify any Person responsible for the delivery or abandonment of any Unpermitted Waste at the Facility and the Parties shall use Reasonable Business Efforts, or BMPs if applicable, to require such Person to bear all costs and liabilities associated with the handling thereof. The City and EDCO shall take all reasonable steps necessary to seek enforcement of Applicable Law regarding such delivery or abandonment.
OPERATIONAL OBLIGATIONS RELATING TO EDCO CRIMINAL ACTIVITY A default of this Agreement shall occur should EDCO’s officers or directors have a criminal conviction of any offence relating to solid waste activities anywhere or any activities within the City of Signal Hill from a court of competent jurisdiction with respect to:
Fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement; or Bribery or attempting to bribe a public officer or employee of a local, state, or federal agency in that officer or director’s or EDCO employee’s official capacity; or Embezzlement, racketeering, false claims, false statements, forgery, falsification or destruction of records, obstruction of justice, receiving stolen property, or theft; or A conviction, admission of guilt or pleading of nolo contendere to the conduct described in this Section by an EDCO officer or director shall constitute a default of this Agreement and all other Agreements relating to the Facility, unless EDCO, in its discretion, terminates or replaces the culpable EDCO officer or director, as the case may be, with an appropriate officer or director within fifteen (15) days’ notice and opportunity following such conviction, admission or pleading of nolo contendere.
REPORTS, MONITORING & RECORDS
Transfer and Processing Report
. Consistent with CIWMB guidelines, a Transfer and Processing Report (“TPR”) shall be developed and maintained on the Site. This shall include operating procedures for odor reduction, formulated and tested for effectiveness by firsthand experience at EDCO’s existing facilities, and will be in place from and followed from the first day of operation.
Records Retention
. EDCO shall use every Reasonable Business Effort to maintain those operational, weighing and business records that are regularly kept in the course of business according to industry practice. Such records shall be retained for a period of not less than one year, or in accordance with Applicable Law, whichever period is longer. Records shall be maintained in an organized and efficient fashion such that they are readily available upon City request pursuant to this Article.
Host Fee Records. EDCO shall keep daily accurate and complete records of Facility operations with respect to vehicular weight and inbound Refuse tonnage of any nature whatsoever. Such records shall be in paper, electronic, magnetic or other media in sufficient detail to allow the EDCO to calculate, and City to corroborate, the Host Fee, any damages and other amounts hereunder and to determine compliance with the provisions of this Agreement. All computations, records, files and reports, relating to Host Fee calculations possessed by EDCO shall be made available to the City for inspection and copying upon City request therefor or in connection with a “Periodic Financial Audit” or “Annual Monitoring Review.” EDCO shall furnish such records and other materials to the City no later than ten days after request therefor. EDCO shall preserve its records and other materials for a period of five years; provided, it shall keep videotapes for a period no less than one year.
Errors in Host Fee Payments. Should the Host Fee Records described in Subdivision (a) above indicate that EDCO has underpaid any Host Fee to the City, the City shall send a written notice to EDCO describing such underpayment and, within seven (7) business days EDCO shall pay the shortfall in Host Fee plus a late fee equaling the amount of the shortfall.
Annual Monitoring Review
. In addition to any provisions contained elsewhere in this Agreement providing for City investigations of the Site, the City may in good faith review EDCO’s performance under this Agreement at least once during each twelve (12) month period from the Effective Date or any other date that the Parties mutually agree upon in writing to determine whether, on the basis of substantial evidence, EDCO has complied in good faith with terms or conditions of this Agreement. In the absence of such good faith compliance, the local agency may initiate the termination or modification of the Agreement, pursuant to the procedures set forth in Articles 11 and 12 hereof.
Cost of Review. The reasonable cost of the annual monitoring review shall be borne by EDCO and EDCO shall deposit such amount as shall be reasonably required by City to pay for such review within fourteen (14) business days after written notice from the City detailing the costs of review. Prior to each monitoring review, EDCO shall deliver to City such information reasonably requested by City demonstrating EDCO’s good faith compliance with the terms of this Agreement and as required by the Existing Land Use Regulations.
Conduct and Result of Review. The Planning Director may conduct the review administratively, or may cause the review to be conducted. If the Planning Director finds that EDCO has substantially complied with the terms and conditions of this Agreement, the review shall be concluded. If said Director finds and determines that EDCO has not substantially complied with the terms and conditions of this Agreement for the period under review, the Director may either (i) pursue the administrative remedies pursuant to Section 5.5, or (ii) declare a default by EDCO in accordance with Article 12.
Certificate of Compliance. If at the conclusion of a periodic review the City finds that EDCO is in substantial compliance with this Agreement, the City shall, upon request by EDCO, issue an Estoppel Certificate to EDCO pursuant to Section 15.4.
Failure to Conduct Annual Review. The failure of the City to conduct the Annual Review shall not be an EDCO Default.
Periodic Financial Audits
. City may also audit the tonnage, revenues and payments to the City at any time or may perform an additional audit based on the request of complainants, in its sole discretion. If City requests such an audit in addition to the annual audit provided by EDCO with payment of the Host Fees, City will pay for the cost of the tonnage audit unless the audit reflects a discrepancy (negative) greater than three percent (3%) of the Host Fees due to the City, in which case EDCO shall pay for such audit; provided that any such audit conducted in accordance with any Enhanced Performance Review shall be a part of the Enhanced Performance Review and paid for thereunder. In addition, in the event of an audit generated by complaints, if any violations or significant issues are identified, EDCO shall reimburse the City for any costs incurred in performing the audit; City recognizes that said financial data is confidential and proprietary to EDCO and, to the extent allowed by law, agrees to work cooperatively to ensure that such information will not be publicly disclosed, subject to Section 9.8 hereof.
Enhanced Performance Review
. City may conduct one (1) Enhanced Performance Review in every five (5) year period following the effective date of the Initial Facility Operations Agreement. EDCO will make a deposit to pay the total cost of the Annual and Enhanced Performance Review, and pay the actual cost therefore. EDCO shall fully cooperate with the Planning Director and his staff and consultants conducting the reviews. An Enhanced Performance Review may consider, at minimum, the following:
Any bona fide complaints received by the City about the approved operations, activities and events; and Any negative impacts to the City, as identified by City staff, which have not been resolved with EDCO. Negative impacts may also include impacts upon municipal revenue(s); and Violations of any of the Performance Standards; and
Performance of periodic audits per Sections 9.3 and 9.4.
An Enhanced Performance Review may be undertaken administratively by the Planning Director, or by the City Council or such other authority as the City Council may direct . The Enhanced Performance Review will incorporate the same procedures and remedies outlined in Section 9.3 above.
City Inspection
. In addition, the City shall have the right, but not the obligation, to informally observe and inspect Facility operations at any time. In connection therewith, City and its representatives authorized by the City Manager shall have the right to enter the Facility at any time and speak to the designated Facility manager or other person then in actual managerial control of the Site; such City representatives shall have access to the Facility at all times, provided that they shall comply with the EDCO’s reasonable safety and security rules and shall not interfere with the work of EDCO or its subcontractors. Upon City request, EDCO shall make specified personnel available to accompany City employees on inspections. EDCO shall ensure that its employees cooperate with the City and respond to the City’s inquiries. EDCO shall make operational, weighing and business records available to the City during Facility receiving hours upon City request; EDCO shall provide City copies thereof at City’s request.
Public Records Act
. EDCO acknowledges and agrees that information submitted to the City pursuant to this Agreement may be subject to compulsory disclosure by the City upon request from a member of the public under the California Public Records Act, Government Code Section 7920.000, et seq. The City acknowledges and agrees that certain information which may be disclosed by EDCO or which EDCO may be required to submit pursuant to the Agreement may be considered as confidential, proprietary, or a trade secret by EDCO. The City agrees to protect the confidentiality of materials submitted to it to the extent permitted by Applicable Law including the Public Records Act. EDCO shall specifically and clearly designate all materials as “CONFIDENTIAL” which it wishes the City to treat in confidence and withhold from public disclosure to the extent permitted by Applicable Law, including the Public Records Act. The City agrees not to voluntarily disclose any materials so designated to persons other than officers, attorneys, employees and consultants of the City involved in financing, overseeing and operating the Facility.
If the City receives a request from a third party to review and/or copy material designated as “CONFIDENTIAL” it will inform EDCO and will permit EDCO to present arguments and facts to the City in support of the position that the material is entitled to an exemption from disclosure under the Public Records Act and should not be released. EDCO acknowledges that City has ten (10) days to respond to any public records request and that any such argument and facts in support of EDCO’s assertion of an exemption must be delivered to the City early enough to be considered by the City and incorporated by the City in its response to the party requesting documents.
If the City determines that the material.is not entitled to an exemption and that it must be released, the City will advise EDCO of such determination prior to releasing the material so that EDCO may seek a court order enjoining its release. If the City determines that the material is entitled to an exemption, and the person who requested the information files a legal action seeking its release, the City will advise EDCO and will not oppose a motion by EDCO to intervene in the action. Further, in such situation EDCO shall intervene in the action and indemnify and hold City harmless from all legal expenses incurred in defending the action as well as any attorneys’ fees which may be awarded to such third party, and the City shall tender its defense to EDCO.
Notwithstanding the foregoing, City shall have no liability for damages to EDCO due to the disclosure of any information which EDCO believes to be confidential or a trade secret.
TRANSFER
Definition of Transfer
. As used in this Section, the term “Transfer” shall include any hypothecation, mortgage, pledge, or encumbrance of this Agreement or the Facility by EDCO, subject to the exceptions set forth in Section 10.3 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 the voting control of EDCO (jointly and severally referred to herein 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 EDCO 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 equity ownership and/or voting control of EDCO in amounts less than Trigger Percentages shall not constitute a Transfer subject to the restrictions set forth herein. In the event EDCO or its successor is a corporation or trust, such Transfer shall refer to the transfer of the issued and outstanding capital stock of EDCO, or of beneficial interests of such trust; in the event that EDCO or any general partner comprising EDCO 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 EDCO 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.
Transfers Require Approval
. EDCO shall not Transfer this Agreement or any of EDCO’s rights hereunder, or any interest in the Site or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, except as provided below, without the prior written approval of City, and if so purported to be transferred, the same shall be null and void. EDCO will submit its request for City consent to the City together with 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 EDCO; (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 management practices in accordance with sound waste management practices in full compliance with all federal, state, and local laws regulating the collection and disposal of waste, including hazardous waste; (v) proof that the transferee’s officers or directors have no criminal convictions constituting a default under Article 8; and (vi) any other information required by the City to ensure the proposed transferee can fulfill the terms of the Agreements, including the payment of indemnities and damages and provision of bonds and/or performance standards, in a timely, safe, and effective manner.
Exceptions
. The requirement to obtain City approval for a Transfer shall not apply to any of the following:
Any mortgage, deed of trust, sale/lease-back, or other form of conveyance for financing and any resulting foreclosure therefrom.
The granting of easements or dedications to any appropriate governmental City or utility or permits to facilitate the operation of the Facility.
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.
A sale or transfer to an affiliate of EDCO owned or controlled by the present beneficial owners of EDCO 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.
Assumption of Obligations
. No attempted Transfer of any of EDCO ‘s obligations hereunder 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 of EDCO 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 EDCO.
Release of EDCO
. City’s consent to a Transfer shall not be deemed to release EDCO 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 EDCO under this Agreement by the assignee, EDCO shall be relieved of its legal duty from the assigned obligations under this Agreement, except to the extent EDCO is in default under the terms of this Agreement prior to said Transfer.
EDCO to Pay Transfer Costs
. EDCO will pay City its reasonable expenses for attorneys’ fees and investigation costs necessary to investigate the suitability of any proposed transferee or assignee, and to review and finalize any documentation required as a condition for approving any such Transfer.
AMENDMENTS
Initiation of Amendment
. Either Party may propose an amendment to this Agreement.
Procedure
. Except as set forth in Section 11.4 below, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance.
Consent
. Except as expressly provided in this Agreement, no amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the Parties hereto.
Minor Modifications.
Implementation of Facility operations may require minor modifications of the details of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to those items covered in general terms under this Agreement. Therefore, non-substantive and procedural modifications of the Facility operations shall not require modification of this Agreement.
A modification will be deemed non-substantive and/or procedural if it does not result in a material change in fees, intensity of use, permitted uses, the maximum height and size of buildings, the reservation or dedication of land for public purposes, the improvement and construction standards and specifications for the Facility, the quality of EDCO’s services or ability of EDCO to fulfill all Performance Standards, Operational Obligations, changes of less than 10% unless otherwise specified herein or in other Agreements, Permit requirements or Applicable Law.
Notwithstanding the foregoing, City will process any change to this Agreement consistent with State law and will hold public hearings therein if so required by State law and the Parties expressly agree nothing herein is intended to deprive any Party or Person of due process of law.
Effect of Amendment to this Agreement
. The Parties agree that except as expressly set forth in any such amendment, an amendment to this Agreement will not alter, affect, impair, modify, waive, or otherwise impact any other rights, duties, or obligations of either Party under this Agreement.
DEFAULT, REMEDIES AND TERMINATION
Rights of Nondefaulting Party after Default
. The Parties acknowledge that both Parties shall have hereunder all legal and equitable remedies as provided by law following the occurrence of a default (as defined in Section 12.2 below) or to enforce any covenant or agreement herein. Before this Agreement may be terminated or action may be taken to obtain judicial relief the Party seeking relief for a default (“Nondefaulting Party”) shall comply with the notice and cure provisions of Section 12.2.
Notice of Default and Opportunity to Cure
. A Nondefaulting Party in its discretion may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of the other Party (“Defaulting Party”) in its performance of a material duty or obligation of said Defaulting Party under the terms of this Agreement. However, the Nondefaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by Defaulting Party to cure such breach or failure (“Default Notice”). The Defaulting Party shall be deemed in “default” under this Agreement, where: (i) said breach or failure can be cured, but the Defaulting Party has failed to fully cure within thirty (30) days after the date of the Default Notice (subject to the provisions below), or (ii) a monetary default remains uncured for ten (10) days (or such lesser time as may be specifically provided in this Agreement).
Non-Monetary Defaults., Longer Cure Period
. The Defaulting Party on a non-monetary default shall not be deemed in breach of this Agreement, and such default shall be waived, if such non-monetary default cannot reasonably be cured within the above-prescribed thirty-day period, and as long as the Defaulting Party does each of the following:
Notifies the Nondefaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period; Notifies the Nondefaulting Party of the Defaulting Party’s proposed cause of action to cure the default; Promptly commences to cure the default within the thirty (30) day period; Makes periodic reports to the Nondefaulting Party as to the progress of the program of cure; and Diligently prosecutes such cure to completion.
Termination Upon Default
. Upon receiving a Default Notice, should the Defaulting Party fail to timely cure any default, or fail to diligently pursue such cure as prescribed above, the Nondefaulting Party may, in its discretion, provide the Defaulting Party with a written notice of intent to terminate this Agreement and other Agreements (“Termination Notice”). The Termination Notice shall state that the Nondefaulting Party will elect to terminate the Agreement and such other Agreements as the Nondefaulting Party elects to terminate within thirty (30) days and state the reasons therefor (including a copy of any specific charges of default) and a description of the evidence upon which the decision to terminate is based. The Agreements to be terminated may include, without limitation, the DDA, Development Agreement, and Facility development approvals, excepting that a default or termination of this Agreement shall under no circumstances warrant a termination of the Trash Hauling Contract. Once the Termination Notice has been issued, the Nondefaulting Party’s election to terminate Agreements will only be waived if (i) the Defaulting Party fully and completely cures all defaults prior to the date of termination, or (ii) pursuant to Section 12.5, below.
EDCO Hearing Opportunity Prior to Termination
. If EDCO is the Defaulting Party pursuant to Section 12.2 above, then the City’s Termination Notice to EDCO shall additionally specify that EDCO has the right to a hearing prior to the City’s termination of any Agreements (“Termination Hearing”). The Termination Hearing shall be scheduled as an open public hearing item at a regularly-scheduled City Council meeting within thirty (30) days of the Termination Notice, subject to any legal requirements including but not limited to the Ralph M. Brown Act, Government Code Sections 54950-54963. At said Termination Hearing, EDCO shall have the right to present evidence to demonstrate that it is not in default and to rebut any evidence presented in favor of termination. Based upon substantial evidence presented at the Termination Hearing, the Council may, by adopted resolution, act as follows:
Decide to terminate this Agreement and all other Agreements, except the Trash Hauling Contract; or Determine that EDCO is innocent of a default and, accordingly, dismiss the Termination Notice and any charges of default; or Impose conditions on a finding of default and a time for cure, such that EDCO’s fulfillment of said conditions will waive or cure any default.
Findings of a default or a conditional default must be based upon substantial evidence supporting the following two findings: (i) that a default in fact occurred and has continued to exist without timely cure, and (ii) that such default has, or will, cause a material breach of this Agreement and/or a substantial negative impact upon public health, safety and welfare, the environment, the City or the financial terms established in the Agreements, Facility operations, or such other interests that the City and public may have in the Facility.
Interest on Monetary Default
. In the event EDCO fails to perform any monetary obligation under this Agreement, EDCO shall pay interest thereon at the rate of ten percent (10%) per annum from and after the due date of said monetary obligation until payment is actually received by City.
Crossdefault
. In the event that the City Council, following a hearing on an EDCO default pursuant to Section 12.5 hereof, determines to terminate this Agreement as a remedy for such default, such determination shall concurrently cause termination of the DDA, and the Development Agreement, except as the City Council shall otherwise direct by resolution.
INDEMNITY AND ENVIRONMENTAL LIABLITY
Indemnity Obligations
. EDCO will be required to protect, defend, indemnify and hold harmless City, Agency and their elected officials, officers, employees, volunteers and agents (“Indemnified Parties”) from and against any and all Claims or Litigation, in addition to EDCO’s indemnity obligations with regard to Hazardous Material set forth in Section 13.2(c). Such indemnification shall not cover any Claim or Litigation due to the extent of the negligence or willful acts of the Indemnified Parties or the Indemnified Parties have received compensation from an insurance carrier for the full amount of such Claim. Such indemnification shall be limited to Claims or Litigation resulting directly from EDCO’s services and obligations under the terms of the Agreements and will survive the termination of the Agreements.
Condition of Site and Site Operations.
Disclaimer of Warranties Concerning the Site including the Agency Parcel. EDCO understands and agrees that the Site including the Agency Parcel is in an “AS-IS” condition and that EDCO shall be responsible for addressing at its expense the physical, environmental and geotechnical condition of the Site, and the existence of any contamination, Hazardous Materials, debris, or other structures located on, under or about the Site to the extent necessary to develop and operate the Facility without giving rise to significant negative environmental impacts or public safety hazards. City specifically disclaims all representations or warranties of any nature concerning the Site or the Facility made by it or its employees, agents and representatives. The foregoing disclaimer includes, without limitation, topography, climate air, water rights, utilities, present and future zoning, soil, subsoil, existence of Hazardous Materials or similar substances, the purpose for which the Site is suited, or drainage. City makes no representation or warranty concerning the compaction of soil, nor of the suitability of the soil for Facility operations.
Hazardous Materials. EDCO understands and agrees that in the event EDCO incurs any loss or liability concerning Hazardous Materials (as hereinafter defined) and/or oil wells and/or underground storage tanks and/or pipelines whether attributable to events occurring prior to or following the Effective Date of this Agreement, then EDCO may look to current or prior owners of the Site, but under no circumstances shall EDCO look to City or Agency for any liability or indemnification regarding Hazardous Materials and/or oil wells and/or underground storage tanks and/or pipelines. EDCO, and each of the entities constituting EDCO, if any, hereby waives, releases, remises, acquits and forever discharges and its officers, employees, and agents of and from any and all Environmental Claims, Environmental Cleanup Liability and Environmental Compliance Costs, as those terms are defined below, and from any and all actions, suits, legal or administrative orders or proceedings, demands, actual damages, punitive damages, loss, costs, liabilities and expenses, which concern or in any way relate to the physical or environmental conditions of the Site, the existence of any Hazardous Material thereon, or the release or threatened release of Hazardous Materials therefrom, whether existing prior to, at or after the Certificate of Completion. It is the intention of the Parties pursuant to this release that any and all responsibilities and obligations of City or Agency and any and all rights, claims, rights of action, causes of action, demands or legal rights of any kind of EDCO, its successors, assigns or any affiliated entity of EDCO, arising by virtue of the physical or environmental condition of the Site, the existence of any Hazardous Materials thereon, or any release or threatened release of Hazardous Material therefrom, are by this Release provision declared null and void and of no present or future force and effect as to the Parties. In connection therewith, EDCO and each of the entities constituting EDCO, expressly agree to waive any and all rights which said Party may have under Section 1542 of the California Civil Code which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” EDCO Initials
City Initials
Indemnity. In addition to its indemnity obligations in Section 13.1, EDCO shall protect, defend, indemnify and hold harmless the Indemnified Parties (defined in Section 13.1) from and against any and all Environmental Claims, Environmental Cleanup Liability, Environmental Compliance Costs, and any other claims, actions, suits, legal or administrative orders or proceedings, demands or other liabilities resulting at any time from the release or threatened release of any Hazardous Materials of any kind whatsoever, in, on or under the Site at any time after construction of Site improvements and whether arising due to construction or thereafter, due to Facility operations, and including, but not limited to, all foreseeable and unforeseeable damages, fees, costs, losses and expenses, including any and all attorneys’ fees and environmental consultant fees and investigation costs and expenses, directly or indirectly arising therefrom, and including fines and penalties of any nature whatsoever, assessed, levied or asserted against any Indemnified Parties to the extent that the fines and/or penalties are the result of a violation or an alleged violation of any Environmental Law. EDCO further agrees that in the event it obtains, from former or present owners of the Site or any other persons or entities, releases from liability, indemnities, or other forms of hold harmless relating to the subject matter of this Section, EDCO shall use its diligent efforts to obtain for City the same releases, indemnities and other comparable provisions.
Definitions. For purposes of this Section 13.2, the following terms shall have the following meanings. “Environmental Claim” means any claim for personal injury, death and/or property damage made, asserted or prosecuted by or on behalf of any third party, including, without limitation, any governmental entity, relating to the Site or its operations and arising or alleged to arise under any Environmental Law. “Environmental Cleanup Liability” means any cost or expense of any nature whatsoever incurred to contain, remove, remedy, clean up, or abate any contamination or any Hazardous Materials on or under all or any part of the Site, including the ground water thereunder, including, without limitation, (i) any direct costs or expenses for investigation, study, assessment, legal representation, cost recovery by governmental agencies, or ongoing monitoring in connection therewith and (ii) any cost, expense, loss or damage incurred with respect to the Site or its operation as a result of actions or measures necessary to implement or effectuate any such containment, removal, remediation, treatment, cleanup or abatement. “Environmental Compliance Cost” means any cost or expense of any nature whatsoever necessary to enable the Site to comply with all applicable Environmental Laws in effect. “Environmental Compliance Cost” shall include all costs necessary to demonstrate that the Site is capable of such compliance. “Environmental Law” means any federal, state or local statute, ordinance, rule, regulation, order, consent decree, judgment or common-law doctrine, and provisions and conditions of permits, licenses and other operating authorizations relating to (i) pollution or protection of the environment, including natural resources, (ii) exposure of persons, including employees, to Hazardous Materials or other products, raw materials, chemicals or other substances, (iii) protection of the public health or welfare from the effects of by-products, wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities, or (iv) regulation of the manufacture, use or introduction into commerce of chemical substances, including, without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and disposal. “Hazardous Material” is defined to include any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government. The term “Hazardous Material” includes, without limitation, any material or substance which is: (i) petroleum or oil or gas or any direct or derivate product or byproduct thereof; (ii) defined as a “hazardous waste,” “extremely hazardous waste” or “restricted hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (iii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iv) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Sections 25501(j) and (k) and 25501.1 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (v) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (vi) “used oil” as defined under Section 25250.1 of the California Health and Safety Codc; (vii) asbestos; (viii) listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of Regulations, or defined as hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title 22 of the California Code of Regulations; (ix) defined as waste or a hazardous substance pursuant to the Porter-Cologne Act, Section 13050 of the California Water Code; (x) designated as a “toxic pollutant” pursuant to the Federal Water Pollution Control Act, 33 U.S.C. Section 1317; (xi) defined as a “hazardous waste” pursuant to the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. § 6903); (xii) defined as a “hazardous substance” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C. § 9601); (xiii) defined as “Hazardous Material” pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et seq.; or (xiv) defined as such or regulated by any “Superfund” or “Superlien” law, or any other federal, state or local law, statute, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning Hazardous Materials and/or oil wells and/or underground storage tanks and/or pipelines, as now, or at any time hereafter, in effect.
Participation in Litigation; Indemnity
. EDCO agrees to indemnify City and its elected boards, commissions, officers, agents and employees and will hold and save them and each of them harmless from any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorneys’ fees and costs) against the City and/or Agency for any Claims or Litigation. City shall promptly provide EDCO with notice of the pendency of any such Claims or Litigation for which EDCO has responsibility under this Article 13, and request that EDCO defend the same. If City fails promptly to notify EDCO of any such Claims or Litigation or fails to cooperate fully in the defense thereof, EDCO shall not, thereafter, be responsible to defend, indemnify, or hold harmless City. EDCO may utilize the City Attorney’s office or use legal counsel of EDCO’s choosing, but shall reimburse City for any necessary legal cost incurred by City. If EDCO fails to do so, City may defend the Claims or Litigation and EDCO shall pay the cost thereof, but if City chooses not to defend the Claims or Litigation, it shall have no liability to EDCO. EDCO’s obligation to pay the defense cost shall extend until judgment and thereafter through any appeals. In the event of an appeal, or a settlement offer, the Parties will confer in good faith as to how to proceed and the resolution of any such appeal and the Parties’ response to any such settlement offer shall require the consent of both Parties, which consent shall not be unreasonably withheld. Notwithstanding the foregoing however, City shall have the unilateral right to settle such Claims or Litigation brought against it in its sole and absolute discretion at any time after the elapse of two (2) years from the filing of a court action on any Claims or Litigation and EDCO shall remain liable hereunder for the Claims and Litigation provided that (i) if the settlement would reduce the density or intensity of the Project by thirty-three percent (33%) or more, and (ii) EDCO opposes the settlement, then if City still unilaterally determines to settle such Claims or Litigation, then City shall be responsible for its own litigation expense and shall promptly reimburse Developer for reasonable litigation costs actually paid by EDCO (with the burden on EDCO to document and prove such costs) but shall bear no other liability to EDCO.
Survival of Indemnity Objections
. Notwithstanding any other provision of this Agreement, EDCO ‘s release and indemnification as set forth in the provisions of this Article 13, shall survive the termination of this Agreement and shall continue in perpetuity.
BODILY INJURY, PROPERTY DAMAGE, AND WORKERS’ COMPENSATION INSURANCE Types of Insurance
. Prior to the entry of EDCO on the Site and throughout the Term of this Agreement, EDCO shall procure and maintain (or cause to be procured and maintained), at its sole cost and expense, in a form and content reasonably satisfactory to City, the following policies of insurance:
Garage Liability or Commercial General Liability Insurance (collectively “CGL”). EDCO shall keep or cause to be kept in force for the mutual benefit of City and EDCO CGL insurance against claims and liability for personal injury or death arising from the use, occupancy, disuse or condition of the Site, improvements or adjoining areas or ways, affected by such use of the Site or for property damage, providing protection of at least Five Million Dollars ($5,000,000.00) for bodily injury or death to any one person, at least Five Million Dollars ($5,000,000.00) for any one accident or occurrence, and at least One Million Dollars ($1,000,000.00) for property damage.
Builder’s Risk Insurance. EDCO shall procure and shall maintain (or cause to be procured and maintained) in force “all risks” builder’s risk insurance including vandalism and malicious mischief, covering improvements in place and all material and equipment at the job site furnished under contract, but excluding contractor’s, subcontractor’s, and construction manager’s tools and equipment and property owned by contractor’s or subcontractor’s employees, with limits in accordance with subsection (a) above.
Workers’ Compensation. EDCO shall also furnish or cause to be furnished to City evidence reasonably satisfactory to it that any contractor with whom EDCO has contracted for the performance of any work for which EDCO is responsible hereunder carries workers’ compensation insurance as required by law.
Other Insurance. EDCO may procure and maintain any insurance not required by this Agreement.
Insurance Policy Form, Content and Insurer
. All insurance required by express provisions hereof shall be carried only by insurance companies authorized to do business by California, rated “A-” or better in the most recent edition of Best Rating Guide, and only if they are of a financial category Class VIII or better, unless such insurance is not available from companies meeting such standards at a commercially reasonable price and City agrees in writing to different standards. All such property policies shall contain language, to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act of negligence of City or EDCO that might otherwise result in the forfeiture of the insurance; (ii) EDCO waives the right of subrogation against City and against City’s agents and representatives; (iii) the policies are primary and noncontributing with any insurance that may be carried by City; and (iv) the policies cannot be canceled or materially changed except after thirty (30) days’ written notice by the insurer to City or City’s designated representative. EDCO shall furnish City with certificates evidencing the insurance. City shall be named as additional insured on all policies of insurance required to be procured by the terms of this Agreement other than workers’ compensation insurance.
Failure to Maintain Insurance and Proof of Compliance
. EDCO shall deliver to City, in the manner required for notices, copies of certificates of all insurance policies required hereunder within the following time limits: (a) for insurance required above, prior to entry of EDCO on the Site and the commencement of any construction by or on behalf of EDCO; and (b) for any renewal or replacement of a policy already in existence, simultaneously with the expiration or termination of the existing policy. If EDCO fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish City with required proof that the insurance has been procured and is in force, such failure shall be a default hereunder, subject to the applicable cure period.
EFFECT OF AGREEMENT ON TITLE; ESTOPPEL
Binding on Successors
. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons acquiring any rights or interests in EDCO’s Property, or any portion thereof, whether by operation of laws or in any manner whatsoever and shall inure to the benefit of the Parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns.
Enforceability as Covenants
. All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to Applicable Law. Appropriate Covenants, Conditions and Restrictions shall be recorded against all EDCO’s interests in the Site and shall incorporate all provisions of this Agreement by reference.
Covenants Run with the Land
. Each covenant to do or refrain from doing some act on the Site hereunder (i) is for the benefit of and is a burden upon every portion of the Site, and mutually burdens and benefits the EDCO Parcel and Agency Parcel, (ii) runs with such lands, and (iii) is binding upon each Party and each successive owner during its ownership of such properties or any portion thereof, and each person having any interest therein derived in any manner through any owner of such lands, or any portion thereof, and each other person succeeding to an interest in such lands.
Estoppel Certificates
. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the “Estoppel Certificate”) stating:
The Agreement is in full force and effect and is a binding obligation of the Parties; and The Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments; and That no enforcement actions are outstanding or if so the status thereof.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request . EDCO shall pay all City’s cost incurred in issuing such Estoppel Certificate requested by EDCO.
CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
Non-liability of City Officers and Employees
. No official, agent, contractor, or employee of City shall be personally liable to EDCO, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to EDCO or to its successor, or for breach of any obligation of the terms of this Agreement.
Conflict of Interest
. No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision to the Agreement which affects 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.
Covenant Against Discrimination
. EDCO covenants that, by and for itself, its 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, sex, marital status, sexual orientation, national origin, or ancestry in the performance of this Agreement. EDCO shall take affirmative action to insure that employees are treated during employment without regard to their race, color, creed religion, sex, marital status, sexual orientation, national origin or ancestry.
GENERAL
Waivers
. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party’s right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. Once the City and EDCO have approved all of the Agreements and development approvals, EDCO shall be deemed to have waived any claim that any condition of the development approvals is improper or that the approval constitutes a breach of the provisions of this Agreement.
Construction of This Agreement
. The language of this Agreement shall be construed as a whole and given its fair meaning. The captions of the sections and subsections are for convenience only and shall not influence construction. This Agreement shall be governed by the laws of the State of California. This Agreement shall not be deemed to constitute the surrender or abrogation of the City’s governmental powers over the Site.
Severability
. If any provision of this Agreement is adjudged invalid, void or unenforceable, that provision shall not affect, impair, or invalidate any other provision, unless such judgment affects a material part of this Agreement in which case this Agreement shall be amended, as necessary, in order to comply with such judicial decision..
Venue
. In the event of any legal proceeding arising from the terms of this Agreement, venue shall be the State of California, in the County of Los Angeles.
Attorney’s Fees
. If either Party to this Agreement is required to initiate or defend a court action or proceeding brought by the other Party, 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 reasonable attorney’s fees. 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 such action is prosecuted.
Time of Essence
. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element, and the resolution of any dispute which may arise concerning the obligations of EDCO and City as set forth in this Agreement.
Force Majeure
. The time within which EDCO or the City shall be required to perform any act under this Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed due to an Uncontrollable Circumstance. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the Uncontrollable Circumstance, if written notice by the Party claiming such extension is sent to the other Party within thirty (30) days of knowledge of the commencement of the Uncontrollable Circumstance. Any act or failure to act on the part of a Party shall not excuse performance by that Party.
Notice
. Notices provided pursuant to this Section shall be deemed received at the date of delivery as shown on the affidavit of personal service or the Postal Service or overnight courier receipt.
To EDCO. Any notice required or permitted to be given by the City to EDCO under this Agreement shall be in writing and (i) delivered personally to EDCO or (ii) mailed with postage fully prepaid, registered or certified mail, return receipt requested, or (iii) deposited with a recognized overnight courier service, addressed as follows:
President
EDCO Transport Services, LLC
6670 Federal Blvd.
Lemon Grove, CA 91945
or such other address as EDCO may designate in writing to the City.
To the City. Any notice required or permitted to be given by EDCO to City under this Agreement shall be in writing and (i) delivered personally to the City Manager, (ii) mailed with postage fully prepaid, registered or certified mail, return receipt requested, or (iii) deposited with a recognized overnight courier service, addressed as follows:
City Manager
City of Signal Hill
2175 Cherry Avenue
Signal Hill, CA 90755-3799
Copy to: Best Best & Krieger, LLP
18101 Von Karman Avenue, Suite 1000
Irvine, CA 92612
Attn: Matthew Richardson, City Attorney
or such other address(es) as the City may designate in writing to EDCO.
Liquidated Damages & Costs Established in DDA, Development Agreement or Trash Hauling Contract . After termination of this Agreement, both Parties shall remain liable for all costs, reimbursements and damages that may be applicable through the DDA, Development Agreement, or Trash Hauling Contract, as well as any liquidated damages that have accrued pursuant to Section 5.5 hereof; nothing herein is intended to waive or limit the remedies available to either Party upon breach, termination or default of those Agreements.
Survival
. All indemnity obligations set forth herein shall survive termination of this Agreement.
No Third Party Beneficiaries
. The only Parties to this Agreement are EDCO and City. There are no third party beneficiaries, and this Agreement is not intended, and shall not be construed, to benefit or be enforceable by any other person whatsoever.
Mutual Covenants
. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party.
Relationship of Parties
. It is specifically understood and agreed by and between the Parties that the Project is a private development and private operation, that neither Party is acting as the agent of the other in any respect hereunder, and that such Party is an independent contracting entity with respect to the terms, covenants, and conditions contained in this Agreement. The only relationship between City and EDCO is that of a government entity regulating the operation of private property and the owner of such private property.
Entire Agreement
. Except as this Agreement may be implemented through the other Agreements, this Agreement constitutes the entire agreement between the Parties with respect to the’ subject matter of this Agreement, and this Agreement supersedes all previous negotiations, discussions, and agreements between the Parties. No parole evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this Agreement.
Further Actions and Instruments
. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
Counterparts
. This Agreement may be executed in counterparts, each of which shall be construed together and have the same effect as if all Parties executed the same copy.
Authority to Execute
. The Persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, (iv) the entering into of this Agreement does not violate any provision of any other Agreement to which said Party is bound and (v) there is no litigation or legal proceeding which would prevent the Parties from entering into this Agreement.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, City and EDCO have executed this Agreement on the date first above written.
EDCO
EDCO Transport Services, LLC a California
Limited Liability Company
By: Steve South
By: John Snyder
Title: President
Title: Vice President
CITY OF SIGNAL HILL
By:
Lori Woods, Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
Matthew Richardson, City Attorney
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CaliforniA
County OF
On ______________ ___, 20__ before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
(Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CaliforniA
County OF
On ______________ ___, 20__ before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
(Seal)
EXHIBIT “A”
SITE MAP
[ON FOLLOWING PAGES]
EXHIBIT “B”
FACILITY SCOPE & COMPONENTS
SCOPE OF DEVELOPMENT. The Project scope includes the development of a ±69,000 square foot recycling and transfer facility on a 3.87-acre site in the City. The Facility will serve as a point to accept, process, recover, and transfer MMW and residue with subsequent diversion activities to an appropriate permitted disposal facility. The MRF/TS will be composed of the following areas:
Office and administration area
Employee area
Operations, material recovery facility, transfer/self haul/load out area Green waste area
HHW area
Construction debris area
Maintenance area
The Project will conform to the City of Signal Hill Site Plan and Design Review Guidelines. The facility will be sized to handle up to 2,500 tons per day, although the actual amount processed per day may be less than this maximum.
COMPONENTS. The facility will have the following multiple components:
Transfer Station. The Facility’s transfer station component for refuse collection and transfer may include a below grade loadout area to allow for the transfer vehicles to be top-loaded through loadout ports at the tipping floor. A portion of the transfer station shall also be dedicated for self-haul use.
Material Recovery Facility. The transfer station may include facilities for diversion of recyclable products from commercial and residential customers. The recyclable products shall be baled within the building and transferred to recyclable load out vehicles at the exterior recyclable load out dock. Residue from the diversion process shall be conveyed to the adjacent transfer station for loadout.
Buyback Operation. A buyback operation allowing the public to drop off recyclables and receive compensation (certified CA redemption center).
Green Waste Area. A green waste area would accommodate collection of green waste. The green waste shall be transferred to outgoing delivery vehicles.
E-Waste. The MRF/TS shall provide a location for Signal Hill residents to dispose of e-waste free of charge.
Household Hazard Waste. EDCO will endeavor to establish a permitted Household Hazardous Waste disposal facility on-site which will be contingent on funding through the County of Los Angeles.
Construction Debris Area. A construction debris area would be utilized for collection, sorting and recyclable load out of construction material debris. The incoming material shall be screened, sorted and diverted to containers. The containers shall be transferred to outgoing recyclable load out vehicles.
Administrative Offices and Public Education. An office area will be dedicated for administrative support for the Facility. This area shall include an area suitable for educating local students and members of the public about solid waste and recycling management, and demonstrating the activities of the Facility. Areas used for public education may include an observational gallery and a location suitable for audio/visual or multimedia presentations and suitable technical equipment therefor. EDCO may implement a public education program to include some or all of (i) visitor presentations on source reduction, recycling and solid waste management; (ii) tours of the Facility; (iii) visual presentations on the role of recycling and evolving developments in the business of solid waste management; (iv) dialogue on, and direct interaction with, the evolving practices of solid waste management; and (v) distribution of educational and promotional materials.
Employee Areas. Employee areas will include restrooms, a break area and offices. The upper level control area will be used to accommodate the operational control functions of the facility. The employee area/control area will be linked to the office area via an upper level observation gallery.
Maintenance Building. A separate maintenance building shall include two service bays and an adjacent office/parts area.
Accessory Operations. Site improvements will include fueling operations, a truck wash area, truck scale and scale house, load out ramps, truck loading docks, driveways, employee and operation vehicle parking, and landscaping.
Roadway Improvements. Certain roadway improvements to 28th Street between California Avenue and Olive Avenue in order to provide site circulation. The Project will also include parkway improvements along all street frontages.
EXISTING DEVELOPMENT APPROVALS. Existing Development Approvals that have been previously granted concurrent with this Agreement, or will be granted in the future and deemed concurrent herewith, including the following:
Memorandum of Understanding between the City, Agency and EDCO; Certification of CEQA EIR and adoption of Addendum to EIR; Zoning Ordinance Amendment amending the General Industrial Specific Plan (Specific Plan 19); Zoning Ordinance Amendment to add a new planning area, Planning Area 3 (Recycling and Transfer Station) to Specific Plan 19 on the Official Zoning Map; Conditional Use Permit, Site Plan and Design Review;
Vacation of an unimproved alley right-of-way between California and Olive Avenue; Vacation of Olive Avenue right-of-way between Patterson and 28th Streets; Grading Permit/Proof of Compliance with NPDES requirements (SWPPP and SUSMP); Amendment to Non-Disposal Facility Element;
Amendment to County Solid Waste Management Plan;
Right-of-way encroachment permit;
DDA with Agency for Agency Parcel;
Operating Agreement for the MRF/TS.
Lot Merger
EXHIBIT “C”
HOST FEES
Advance of Host Fees. Upon the effective date of the Initial Facility Operations Agreement, EDCO deposited into City’s bank account a deposit of One Million Dollars ($1,000,000), which was a prepayment of Host Fees (“Host Fee Deposit”). After the first year of operations and in subsequent years thereafter, the Host Fee was drawn down against the Advance until the Advance balance was depleted.
Host Fees Calculations. The Facility will process up to 2,500 tons per day at an annual rate up to 912,500 tons. Upon the Effective Date of this Agreement, and every operating year thereafter until the termination or expiration of the Agreements, EDCO shall pay a Host Fee to the City based on the inbound tonnage of all solid waste of any nature whatsoever received and processed at the Facility, based on a maximum capacity up to 2,500 tons per day, at the following rates: (i) Two (2%) percent of all the Operational Revenue for processing a minimum of 100,000 tons; (ii) Two (2%) percent of all the Operation Revenue for processing between 100,001 and 150,000 tons; (iii) Three (3%) percent of all the Operational Revenue for processing between 150,001 and 300,000 tons; (iv) Five (5%) percent of all the Operational Revenue for processing between 300,001 and 547,500 tons; and (v) Five (5%) percent of all the Operational Revenue for processing between 547,501 tons and 912,500 tons. Payments shall be made quarterly in arrears.
Time of Determination and Payment. Within thirty (30) days following each quarter of any Operational Year, EDCO shall provide City with a Quarterly Statement with the following: (i) a certified statement of tonnage processed in the quarter; (ii) a certified statement of revenue received in the quarter, (iii) a certified Statement of Host Fees earned by City; (iv) an Annual Statement showing the aggregate Host Fees earned for the Operational Year; (v) a comparison with the prior Operational Year by quarters; and (vi) payment of the Host Fees earned during the prior quarter. A separate annual statement shall be submitted concurrently with the last quarterly statement (except that City may coordinate the annual statement with its fiscal budget year). City may audit any of the foregoing statements per Article 9.
Most Favored Nation Provision. It is the intent of the Parties that Host Fees be periodically reviewed and kept comparable to the highest prevailing Host Fees for comparable facilities within the market area, which shall be referred to as the “Most Favored Nation Provision,” to include: (i) a geographical market area within thirteen (13) miles of the MRF/TS except within Orange County where the geographical area shall be limited to within to within ten (10) miles of the MRF/TS; (ii) the facilities used as a basis of comparison must be determined by agreement of the Parties or through an independent study to be compelling; (iii) the review would occur in the 10th year and every five (5) years thereafter; (iv) no adjustment shall be made unless the discrepancy as compared to the highest rate is more than ten (10) percent; and (v) the adjustment shall be made to be equal to the highest rate identified during the period of review.
EXHIBIT “D”
DISPOSAL SITE TIPPING FEES AND RATES
TO BE DETERMINED
EXHIBIT B-3
EXHIBIT C-1
EXHIBIT D-1
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51 EXHIBIT A-3
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