Upland City Council
June 13, 2022

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

2 F. Collector and City desire to implement a new, automated system of Solid Waste (including Organic Waste) and Recyclables Collection in the City, to more efficiently provide for the collection of such materials, and to facilitate achievement of City’s obligations pursuant to the Act; and
G. Pursuant to this Agreement, City desires to engage
Collector as an independent contractor to exclusively provide automated Solid Waste, Organic Waste and Recyclables collection services in the City. Collector shall furnish all personnel, equipment, and supplies necessary to collect, or otherwise remove and dispose of all Solid Waste, Organic Waste and Recyclables, as defined herein, generated or accumulated at all residential and Commercial/Industrial Premises within the City, except as otherwise specifically provided herein; and
H. Collector has represented and warranted to City that it has the experience, responsibility, and qualifications to implement the Collection of Solid Waste, Recyclables, and Organic Waste, and to arrange with residents and other entities in the City for the Collection, safe transport, processing, and disposal of all materials in compliance with Applicable Laws; and I. On [month] [date], 2022, negotiations were concluded, and on [month] [date], 2022 the Upland City Council authorized this Agreement; and
J. The City intends that this Agreement will contribute to providing the most cost-efficient, best Solid Waste management services to its citizens;
NOW, THEREFORE, in consideration of the mutual promises, covenants, guaranties and conditions contained in this Agreement and for other good and valuable consideration, the City and Collector agree as follows:

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

3 ARTICLE 1 DEFINITIONS AND CONTRACT INTERPRETATION

1.01 Definitions. As used herein, capitalized words shall have the meanings set forth in Exhibit A, which shall control in the event of any conflict with the definitions used in the recitals hereto.

1.02 Interpretation.
a. Gender and Plurality. Words of the masculine
gender mean and include correlative words of the feminine and neuter genders, and vice versa. Words importing the singular number mean and include the plural number, and vice versa, unless the context demands otherwise.
b. Headings. Any captions or headings following the
Exhibit, Section, subsection, paragraph and Article numbers and preceding the operative text hereof shall be for convenience of reference only and shall not in any way control or affect the scope, intent, meaning, construction, interpretation or effect hereof.
c. References to Parts. References to Sections and
Articles refer to Sections and Articles hereof, unless specified otherwise. References to Exhibits refer to Exhibits attached hereto.
d. Examples. Use of examples are for purpose of
illustration only. In the event of any ambiguity or conflict between the examples and the provisions which they illustrate, the provisions shall govern.

1.03 Integration. This Agreement contains the entire
Agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall completely and fully supersede all prior understandings and agreements between the Parties with respect to such transactions, including those contained in any documents as part of the contract negotiations completed on [month] [date], 2022. All exhibits and attachments referenced herein are incorporated by reference.

1.04 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California (without giving effects to the State’s principles of conflicts of laws). Venue for suit shall be the County of San

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

4 Bernardino and the Central District of the United States District Court.

1.05 Severability. If any clause, sentence, provision,
subsection, Section or Article hereof or Exhibit hereto shall be ruled invalid by any court of competent jurisdiction, then the Parties shall:
(1) promptly meet and negotiate in good faith a substitute for such provision which shall, to the greatest extent legally permissible, effectuate the intent of the Parties therein; (2) if necessary or desirable to accomplish preceding item (1) above, apply to the court having declared such invalidity for a judicial construction of the substituted portion of this Agreement; and
(3) negotiate such changes in, substitutions or additions to the remaining provisions hereof as may be necessary in addition to and in conjunction with preceding items (1) and (2) above to effectuate the intent of the Parties in the invalid provision.

The invalidity of such provision shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid provision did not exist.

1.06 Construal. This Agreement shall be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafting. Collector acknowledges that it determined to participate in the competitive procurement of this Agreement upon its choice and initiative with full knowledge of the terms, conditions and risks of participation. The Parties have negotiated this Agreement at arms’ length and with advice of their respective attorneys, and no provision herein shall be construed against the City solely because it prepared this Agreement in its executed forms.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

5 ARTICLE 2 REPRESENTATIONS AND WARRANTIES

2.01 Of Collector. The Collector hereby covenants,
represents, and warrants the representations and warranties set forth in Exhibit B to City for the purpose of inducing City to enter into this Agreement and to consummate the transaction contemplated hereby, all of which shall be true as of the date of this Agreement and as of the Commencement Date.

2.02 Of City. The City hereby covenants, represents;` and warrants the representations and warranties set forth in Exhibit C to Collector for the purpose of inducing Collector to enter into this Agreement and to consummate the transaction contemplated hereby, all of which shall be true as of the date of this Agreement and as of the Commencement Date.

2.03 Waiver. The obligations of the Parties hereunder are preconditioned upon the truth and correctness of the
representations and warranties made by the Parties, respectively, in this Article 2. However, either Party may waive such precondition, in whole or in part.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

6 ARTICLE 3 TERM OF AGREEMENT

3.01 Term. The Term of this Agreement shall be for a period of four (4) years commencing upon the date of execution of this Agreement. On July 1, 2019 and annually thereafter, the initial term shall be automatically extended for one (1) year so that the remaining term of the Agreement shall always be seven (7) years, unless either party notifies the other in writing (the “Wind Down Notice”) before June 30 in any year that it does not wish the term to be automatically extended in which case the Agreement shall terminate at the end of the Term, or seven (7) years from the date of the last extension pursuant hereto, whichever is later (the “Wind Down Period.”)

3.02 Survival of Certain Provisions. All representations and warranties of the Parties herein, and all indemnifications provided for herein, and any other rights and obligations of the Parties expressly stated to survive the termination of this Agreement, shall survive such termination or expiration.

3.03 Statutory Continuation Rights. Collector acknowledges that it is familiar with Article 3 of Chapter 6 of Part 8 of Division 30 of the Public Resources Code, commencing with Section 49520, and that such provisions are inapplicable to the Collector in this Agreement. Collector further agrees that if and to the extent that such provisions are deemed applicable to this Agreement, Collector waives any rights they may afford.

3.04 Transition to Next Collector. Upon expiration of this Agreement, if Collector and City do not enter into a succeeding agreement, Collector shall cooperate fully with City and the subsequent Collector(s), franchisee(s), licensee(s), permittee(s) or other Person providing services similar to the Services so as to assure an efficient, orderly, timely and effective transition in accordance with Section 12.02c.

3.05 Conditions Precedent.
(a) Notwithstanding any other provision of this Agreement, this Agreement shall not become effective unless Collector delivers to City the sum of $[insert amount] as reimbursement for City’s costs related to the renegotiation and revision of the franchise agreement.
(b) This Agreement shall automatically expire and be of no further force or effect, without the need for notice pursuant to Section 11.02 or otherwise, if the conditions precedent set forth below are not satisfied by Collector, or waived (in written form)

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

7 by City, on or before [month] [date]. Waiver of any of the following as a condition to the continued effectiveness of this Agreement will not preclude City from pursuing any claim for breach of this Agreement:
(i) The representations and warranties made by
Collector in Section 2.01and Exhibit B of this Agreement are true and correct on and as of both the date of this Agreement and the Commencement Date;
(ii) There is no litigation pending on the Commencement Date in any court challenging the award or execution of this Agreement or seeking to restrain or enjoin its performance. (iii) Collector has submitted, to the satisfaction
of the City Manager:
(a) evidence of insurance coverage in compliance
with Section 8.02;
(b) the performance bond in compliance with
Section 8.03; and
(c) the Financial Guaranty Agreement in compliance
with Section 8.06 of this Agreement.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

8 ARTICLE 4 SERVICES

4.01 Collection and Transportation.
a. Service Standards.
(1) General. Collector acknowledges that one of
the City’s primary purposes in competitively procuring Services hereunder, selecting. Collector and executing this Agreement, is to improve the quality of Customers’ waste management services.

Therefore, Collector shall collect residential Solid Waste from all single-family and multi—family premises and commercial and industrial businesses under the City’s jurisdiction, and shall perform all Services in a prompt, thorough, comprehensive, reliable, courteous and professional manner so that Customers receive high-quality Service at all times. Enumeration of and specifications of requirements for particular aspects of the quality of Services shall not relieve Collector of the duty and obligation of accomplishing all other aspects of Services in the manner provided in this paragraph, whether such other aspects are enumerated elsewhere herein or not.
(2) Litter. Collector shall clean up litter in
the immediate vicinity of any Solid Waste storage area, including the areas where Containers are placed for collection, whether or not Collector has caused the litter: Collector shall discuss instances of repeated litter caused by a Customer directly with the responsible Customer and report such instances to City. City will cooperate with Collector to rectify such situation if Collector has already attempted to do so without success.

Collector shall use due care to prevent Solid Waste
from being spilled or scattered during Collection and
transportation. All vehicles, containers and debris boxes shall be covered during transport to the Disposal Facility, Composting.

Facility, and Processing Facility. Collector shall not transfer loads from one vehicle to another on any public street, unless necessitated by mechanical failure or accidental damage to a vehicle. If any Solid Waste is spilled or scattered, Collector shall immediately clean it up. Collector shall be responsible for paying any fines assessed by the operator of the Disposal Facility, Composting Facility, and Processing Facility or other Person for improperly covering loads or spills.
(3) Respect for Property.
(i) Private Property. Collector shall use
due care in entering and exiting Customers’ property or enclosures

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

9 to provide Services. After making Collections, Collector shall close all gates opened by them and shall use the paved accessways on public or private property. Collector shall promptly repair or compensate Customer for all damage to Customer’s property caused by the negligence or carelessness of Collector’s employees. (ii) Containers. Collector shall handle
Containers with due care to promote the longest possible useful life. Collector shall return containers in an upright position to a location that does not obstruct traffic or access to the Customer’s property.
(iii) Pavement. Collector shall be
responsible for damage to driving surfaces where Containers are located on public or private property, when City or Customer can demonstrate to satisfaction of City that the damages are the result of Collector’s Vehicles exceeding the legal maximum weight limits of the State or the negligent operation of Vehicles by Collector’s employees.
(4) Noise. Collector shall conduct Collection as
quietly as possible and shall conform to noise level regulations.

Collector will promptly resolve any noise complaints to City satisfaction. City may conduct random checks of noise emission levels to ensure compliance herewith.
b. Scope of Regular Collection Service. Collector
shall timely and fully perform Collection Services described in Exhibit D in accordance with the provisions of this Agreement. To the extent that any portion of Services is provided exclusively by Collector, it shall be so only if Collector is and shall at all times be ready, willing, and able to provide Services in accordance herewith and with Applicable Law.
(1) Collector shall not commingle, in the vehicles
or otherwise, any refuse with any Recyclables , Organic Waste or Green Waste, or any refuse, Recyclables, Organic Waste or Green Waste with each other when collected by Collector, unless otherwise specifically authorized in writing by City. Collector shall not be deemed to have violated this Section where such materials were commingled prior to Collection by Collector.
(2) Collector shall comply with the requirements
of the City’s Construction and Demolition Waste diversion ordinance, and Applicable Law, as may be adopted or amended.

Collector and shall assist customers with compliance by diverting Construction and Demolition Waste to the maximum extent feasible and by providing receipts for all materials collected.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

10 (3) Exceptions.
(i) Special Wastes. Collector shall not
be required to collect special wastes, including grease wastes from grease traps or grease interceptors and waste materials resulting from demolition or construction.
(ii) Recyclables Not Discarded by Customer.

Recyclables belong to the Customer until set out at the curb for transfer to Collector. Customers may dispose of such Recyclables and bulky goods through other appropriate means including, but not limited to, taking them to drop-off facilities and donating or selling them to private or public entities.
(iii) Waste Not Properly Placed in
Containers. Collector shall not be required to collect any Solid Waste that: is not placed inside the appropriate Container, bags or bundles; has been overloaded in Containers by weight or volume; or has been compacted or otherwise placed, kept, or accumulated in a manner that the Solid Waste will not, of its own weight, fall out of the Container in which it is placed when such Container is turned upside down except for excess Solid Waste or Bulky Waste properly set out. Collector shall complete and leave a Non- Collection Notice securely attached to any adjacent Container of Customer, or if no Containers are set out, to Customer’s door. The use of permanent stickers to affix a Non-Collection Notice is not allowed. In the event a Customer commingles refuse, Organic Waste, or Green Waste with Recyclables for Recyclable collection or commingles refuse or Recyclables with Green Waste or Organic Waste for Green Waste or Organic Waste collection, Collector may treat such collection as a refuse collection subject to the applicable refuse Collection Rates.
(iv) Container Not Placed in -Proper or
Safe Collection Location. Collector shall provide Collection Services for all properly placed Containers —except that Collector shall not be required to collect any Solid Waste from any Container which is placed in a manner which would otherwise preclude the safe pickup thereof. Collector shall complete and leave a Non- Collection Notice securely attached to such improperly placed Container. The use of permanent stickers-to affix a Non-Collection Notice is not allowed.
(v) Unsafe Condition. If Collector
determines that any condition at or near any collection location presents a health or safety threat to Collector’s employees, Collector shall immediately notify the City Representative

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

11 thereof. Upon City authorization, the Collector may discontinue collection for any such location until the safety hazard is eliminated. Collector shall complete and leave a Non-Collection Notice securely attached to Customer’s Container or on the door to the Customer’s premises. The use of permanent stickers to affix a Non-Collection Notice is not allowed.
(vi) Hazardous Waste or Unsafe Materials.

If Collector determines that Containers contain Hazardous Waste or other materials that present a health or safety threat to Collector’s employees, Collector may refuse to collect such Container. Collector shall notify the City Fire Department immediately. Collector will notify City thereof in its report. c. Special Collection Service.
(1) Bulky Waste.
(i) Resident Requested Collection.

Collector shall provide Bulky Waste collection at the curbside or alleyway upon request up to four (4) times per calendar year to each residential Customer in the City. Collector shall provide such Customer requested collection by or on the next scheduled service day of the Customer. Customer requests for such service may be done in person, over the telephone, or in writing. Collector may bill the Customer for Customer requested Bulky Waste collection services in excess of the four (4) free collections in accordance with Exhibit M. When a Customer requests a Bulky Waste collection in excess of the required four (4) free collections, the Customer shall be told the cost of the additional collection. Service specifications shall include: fifty percent (50%) recovery rate, and collection of all white goods, all brown goods, all couches and mattresses, and other Bulky Waste up to four (4) feet in length.
(ii) On City Demand. Within twenty-four
(24) hours of City Notice to Collector, Collector shall pick up and dispose of Bulky Waste deposited on public streets or other public property located within the City at no charge.
(2) Backyard Collection Service. Backyard
Collection shall be available to any Residential Customer upon request, for the fee specified in Exhibit M. Residential Customers, including disabled Customers, who demonstrate inability to bring Containers to the curb and meet certain eligibility requirements, as determined by the City Manager, shall not be charged a backyard collection service fee.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

12 (3) Christmas Tree Collection. Collector shall
collect all Christmas trees set at curbside from December 26 to January 21 annually. Collector will distribute City-provided notification to Customers by mail of such collection dates and that trees placed on the curbside at other times must be cut up for delivery as organic waste/green waste/wood waste. Collector may identify additional sites for centralized drop-off of Christmas trees by Customers and shall ensure that trees will not accumulate outside of such drop-off containers or locations.

Collector shall deliver trees to a green/organic waste or composting facility for diversion.
(4) Alley Service. Collector acknowledges that up
to approximately ten percent (10%) of Residential Customers receive pick up of collection containers in service alleys at no additional charge to the City or the Customer.
(5) Clean-Up Programs.
(i) Multi Family Clean-Up. A minimum of
two (2) times per Agreement year, Collector shall, in response to written request of the City, deliver and collect Roll-Off Containers for use in multi-family neighborhood clean-up programs at no charge. These services shall consist of a single Collection day beginning at 6:00 a.m. and ending at 8:00 p.m. The City shall notify Collector in writing not less than thirty (30) calendar days prior to the date of the service. The notice to the Collector shall specify the date of delivery and collection of the Roll-Off Containers, the locations(s) for delivery, and the number and size of the Roll-Off Containers to be delivered. As part of this service, Collector shall provide on-site supervision at all times the Roll-Off Containers are available for multi-family
neighborhood clean-up Services. Solid Waste Collected as a part of this special Collection Service shall be included in the City’s minimum diversion requirements.
(ii) City- Roll off Service. Upon the City
Manager’s or designee’s request, Collector shall provide at no charge six (6) times per Agreement year, a minimum of six (6) 40- cubic yard roll-of boxes for Solid Waste collection and disposal services on City sponsored projects.
(6) Collection From City Facilities. Collector
shall provide at no charge Solid Waste, Recycling, and Organic Waste collection services to the City facilities and properties listed in Exhibit D.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

13 (7) Commercial Waste Audits. Collector shall
provide free upon any Commercial Customer’s request, a waste audit for the Commercial Customer’s serviced facilities. The purpose of such waste audit shall be to identify opportunities for decreasing waste generation and increasing waste diversion at the Commercial Customer’s serviced facilities. Collector shall inform all Commercial Customers of this free service though bill inserts a minimum of two (2) times per Agreement year. Collector shall include a listing of Customer requests for free waste audits and a summary of waste audit results for the preceding year in each annual report.
(8) Mulch. Collector shall provide, free of
charge, a minimum of one hundred and twenty (120) cubic yards of mulch to the City upon City request, per Agreement year. The mulch shall meet the standards set forth in 14 CCR sections 18993.1 for the purpose of the City meeting its annual recovered organic waste procurement target.

The City shall notify Collector in writing not less than thirty (30) calendar days prior to the date of the service. The notice to the Collector shall specify the date of delivery and collection of the Roll-Off Containers, the locations(s) for delivery, and the size and number of the Roll-Off Containers to be delivered. (9) Route Review, Waste Evaluations and
Contamination Minimization. Collector shall, at its sole expense, conduct annual route reviews each calendar year for prohibited Container contaminants in Containers in a manner that is deemed safe by the Collector, is approved by City, and is conducted in a manner that results in all routes being reviewed annually pursuant to 14 CCR Section 18984.5. Collector shall visually inspect the contents of a reasonably representative number of Containers, as directed and approved by City.

Collector shall develop a route review methodology that complies with the requirements of 14 CCR Section 18984.5(b).

Collector shall submit its proposed route review methodology for the coming year to the City no later than January 15 of each year describing its proposed methodology for the calendar year and schedule for performance of each route’s annual review.

Collector’s proposed route review methodology shall include its plan for Container inspections and shall also include its plan for prioritizing the inspection of Customers that are more likely to be out of compliance. CITY shall review, comment on, and approve the proposed methodology. Collector may commence with the proposed methodology upon approval. If CITY notifies Collector that the

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

14 methodology is inadequate to meet the requirements of SB 1383, Collector shall, at its sole expense, revise the methodology and, after obtaining CITY approval, conduct additional route reviews, increased Container inspections, or implement other changes using the revised procedure.

Collector shall document Contamination with still pictures or video, and will notify the Customer of the Contamination by following the applicable procedures specified in 14 CCR Section 18984.5. Collector shall perform the recordkeeping requirements for Container minimization in 14 CCR Section 18984.6. Collector may, at its discretion Collect the Container as Recyclable Materials, Organic Materials, or as Solid Waste.

Collector shall conduct waste stream audits in accordance with 14 CCR Section 18984.5 and shall analyze the quantity and composition of the waste stream for each Customer, and shall recommend practices and techniques for improving the diversion rate of each Customer’s waste stream.
d. Frequency.
(1) Regular Schedule
(i) Residential. Collector shall collect
Solid Waste, Recyclables, and Organic Waste once (1) a week from each Residential Customer as scheduled and noticed to the Customer. (ii) Commercial. Collector shall collect
Solid Waste, Recyclables, and Organic Waste at least once (1) a week from each Commercial Customer as scheduled and noticed to the Customer.
(iii) City. Collector shall collect Solid
Waste, Recyclables, and Organic Waste according to a schedule mutually agreed upon by the City and Collector.
(2) Holiday Schedule. City-designated holidays
are as follows: Christmas Day, New Year’s Day, Memorial Day, Labor Day, Thanksgiving Day, and Independence Day. Collector shall notify Customers annually in advance of Holiday Collection schedule, and the City shall approve the Collector’s Holiday Collection schedule in advance.
e. Hours.
(1) Residential. Collector shall perform
Collection Services within residential areas only between 7:00

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

15 a.m. and 6:00 p.m., Monday through Friday. Saturday collection hours shall be between 7:00 a.m. and 6:00 p.m.. Other Exceptions shall be effected only upon the mutual agreement of City and Collector.
(2) Commercial. Collector shall perform
Collection Services within commercial areas only between 6:00 a.m. and 6:00 p.m., Monday through Saturday. Commercial collection in areas that border residential areas shall begin no earlier than 7:00 a.m. Exceptions shall be effected only upon the mutual agreement of City and Collector.
(3) City. Collector shall perform Collection
Services for City facilities and properties listed in Exhibit D according to a schedule mutually agreed upon by the City and Collector. Exceptions shall be effected only upon the mutual agreement of City and Collector.
(4) No Sunday Pickup. Collector shall not perform
scheduled Collection Services on Sunday.
f. Routing.
(1) Route Changes.
(i) Due to Collector Transition. On or
before [month] [date], 2022, Collector shall provide the City with maps, precisely defining the collection routes Collector proposes for Residential and Commercial Collection Services, including Solid Waste, Recyclables, and Organic Waste, together with the days and the times at which Collection shall regularly commence for each route. The City Representative may provide written comments on the preliminary maps to Collector no later than ten (10) days thereafter, and in such event Collector shall revise the maps to reflect such comments and return them to the City within ten (10) days after receipt of City comment.
(ii) City-Initiated, Material Route Changes
During Agreement Term. City reserves the right to change the day of the week for Collection Services on any route. City shall notify Collector of any change in the Collection Service day at least sixty (60) days in advance of the effective date of the change, and Collector shall provide the City with maps precisely defining the revised collection routes and schedules requested by the City not less than thirty (30) calendar days prior to the proposed date of implementation. Collector shall in turn notify all affected Customers of the change at least fourteen (14) days in advance of the effective date of the change. City shall not

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

16 initiate route schedule changes more often than six (6) times in any Contract Year nor more often than two (2) times per individual numbered route in any Agreement Year. Any notification
requirements and decreases in routing efficiency due to City- initiated route changes shall be compensated to the Collector. (iii) Collector-Initiated, Material Route
Changes During Agreement Term. Collector shall submit to City, in writing, any proposed route schedule changes with maps precisely defining the revised collection routes and schedules not less than sixty (60) calendar days prior to the proposed date of
implementation. The City may provide written comments on such proposed change to Collector no later than ten (10) calendar days thereafter, and in such event Collector shall revise the routes to reflect such comments and return them to the City within ten (10) calendar days. Collector shall not implement any route changes without the prior review of the City Representative. Collector shall notify Customer of route schedule changes not less than thirty (30) calendar days before the proposed date of
implementation. Any notification requirements and decreases in routing efficiency due to Collector-initiated route changes shall be at Collector’s expense.
(iv) City-Initiated, Immaterial Route
Changes During Agreement Term. City reserves the right to change the route path on any route. City shall notify Collector of any change in a Collection Service route at least sixty (60) days in advance of the effective date of the change, and Collector shall provide the City with maps precisely defining the revised collection routes requested by the City not less than thirty (30) calendar days prior to the proposed date of implementation. (v) Collector-Initiated, Immaterial Route
Changes During Agreement Term. Collector shall submit to City, in writing, any proposed route path changes with maps precisely defining the revised collection routes not less than sixty (60) calendar days prior to the proposed date of implementation. The City may provide written comments on such proposed change to Collector no later than ten (10) calendar days thereafter, and in such event Collector shall revise the routes to reflect such comments and return them to the City within ten (10) calendar days.

Collector shall not implement any route changes without the prior review of the City Representative.
(2) Route Audits. City reserves the right to
conduct audits of Collector’s Collection routes. Collector shall cooperate with City in connection therewith, including permitting

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

17 City employees or agents designated by the City Representative to ride in the Collection Vehicles during the conduct thereof.

Collector shall have no responsibility or liability for the salary, wages, benefits or worker compensation claims of any person designated by the City Representative to conduct such audits. g. Vehicles.
(1) Specifications. Collector shall provide route
vehicles that comply with South Coast Air Quality Management District (SCAQMD) regulations for fleet vehicle emissions. (i) Noise. The noise level generated by
Collection Vehicles using compaction mechanisms during the stationary compaction process shall not exceed seventy-five decibels at a distance of twenty-five feet from the Vehicle measured at an elevation of five feet above ground level using the “A” scale of a standard sound level meter at slow response, or Applicable Law, whichever is more stringent. Collector shall cause the Collection Vehicles to be tested by an independent testing authority annually during the month of May and shall submit a certificate of testing showing that the Vehicles meet the requirements of this Section together with the annual report submitted by Collector.
(2) Registration, Certifications. Collector
shall register all Vehicles, except those Vehicles used solely on Collector’s premises, with the California Department of Motor Vehicles in accordance with Applicable Law. Collector 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. Collector shall maintain copies of registration certificates and reports and make them available for inspection upon request by the City.

Collector shall also obtain certificate of compliance for SCAQMD fleet vehicle emissions requirements.
(3) Safety Markings. Contract shall ensure that
all Service Assets bear all necessary and appropriate and 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.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

18 (4) Identification. Collector 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. (5) Public Relations Signage. City may design and
produce interchangeable signs containing messages designed to alert the public to special waste management programs in English and additional languages as deemed appropriate by the City.

Collector shall install such City provided signage on Collector Vehicle, for uses in the City within thirty (30) days upon request by the City. The City may request a maximum of two (2) signage changes per contract year.
(6) Maintenance. Collector shall at all times
maintain Vehicles in good condition in accordance with the maintenance protocol contained in Exhibit G, so that they operate properly and safely. Collector acknowledges that it is important to the City that Collector present a professional and pleasing image. Therefore, Collector shall wash all Vehicles at least once (1) each week and shall repaint all Vehicles (including trim) not less than every thirty (30) months.
h. Containers.
(1) Residential Containers. Collector shall
provide new residential collection containers, except as noted below. City will own the Residential Collection Containers at end of the Agreement Term. Default level of service for Residential Customers is 90-100 gallons for organic waste, 60-70 gallons for recyclables, and 60-70 gallons for Solid Waste. Residential Customers shall be allowed to choose an alternative level of service: 32 gallon, or 90 gallon for Solid Waste and 32 gallon or 90 gallon for organic waste and recyclables. After an initial three (3)-month adjustment period, residential customers are allowed one (1) change of container size per year. Collector shall provide requested container size within fourteen (14) days of a Customer request for change of container size.
(i) Provided by Collector for Solid Waste
Collection. Solid Waste collection Containers shall be provided by the Collector for the Collection of Solid Waste.
(ii) Provided by Collector for Recyclables
Collection. Recyclables collection Containers shall be provided by the Collector for the Collection of Recyclables.

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19 (iii) Provided by Collector for Organic
Waste Collection. Green Waste Collection Containers shall be provided by the Collector. For the Collection of Organic Waste. (iv) Repair of Containers. Collector shall
repair Collector-provided Containers within seven (7) days of a request for repair from a Customer or from the City Representative.

If the repair cannot be completed within seven (7) days, Collector shall provide such Customer with a replacement Container. (2) Commercial Containers. Collector shall
provide Commercial Containers that are clean, recently painted, and in good repair.
i. Personnel.
(1) Driver Licensing and Safety. Collector shall
ensure that all drivers are trained and qualified in the operation of Collection Vehicles and that they have, in full force and effect, a valid license of the appropriate class issued by the California Department of Motor Vehicles. Collector shall maintain photocopies of licenses for all Vehicle operators. Collector shall provide suitable operational and safety training for all of its personnel who utilize or operate Vehicles or other equipment for Collection or who are otherwise directly involved in Collection.

Collector shall train its personnel to identify and not collect Hazardous Waste, except as provided in this Agreement.
(2) Identification, Appearance, Conduct.

Collector shall require each driver and all other personnel who come into contact with the public to wear a uniform identifying his name. Collector shall use its best efforts to assure that all personnel present a neat and orderly appearance and conduct themselves in a courteous manner. Collector shall regularly train its employees in Customer courtesy, prohibit the use of loud or profane language, and instruct Collection crews to perform their work as quietly as possible. If any personnel is found not to be courteous or not to be performing Services in the manner required hereby, Collector shall take all appropriate corrective measures. (3) No Gratuities. Collector shall not permit its
personnel to demand, solicit, or accept directly or indirectly, any additional compensation or gratuity from Customers or any members of the public.
(4) Nondiscrimination. In the performance of all
work and Services hereunder, Collector shall not discriminate against any person on the basis of such person’s race, sex, color,

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20 ancestry, physical handicap, medical condition, national origin, religion, marital status, sexual orientation, or as otherwise prohibited by Applicable Law. Collector shall comply with all Applicable Law regarding non-discrimination, including in employment.

4.02 Diversion.
a. Processing.
(1) Facility Selection. Collector shall transport
and deliver to a Processing Facility or Facilities all Recyclables including Recyclables from single-family households, and Recyclable Bulky Waste. Collector shall transport and deliver to a Composting Facility or Processing Facility all Organic Waste.

Such Facilities shall be permitted under and in substantial compliance with Applicable Law. Collector shall make Reasonable Business Efforts to select Facilities which create the most economic value for the City, taking into account any applicable tipping fees, revenue sharing, and transportation costs thereto, consistent with public health and safety, diversion provisions of AB 939, AB 341, SB 1383, and their implementing regulations, and Collector’s obligations hereunder. Collector shall ensure there is sufficient capacity at such Facility or Facilities to process, and store until marketed, all Recyclables, Bulky Waste, and Organic Waste Collected by Collector during any one-week collection period, and that the City Representative and his or her designees shall have access to such Facility or Facilities at all reasonable times; provided that Collector shall have no responsibility or liability for the salary, wages, benefits or worker’s compensation claims of the City Representative or any such designee. (2) Weighing and Record Requirements. Collector
shall ensure that, at a minimum, all materials shall be weighed upon delivery to the Processing Facility or Facilities and Organic Waste Processing Facility, as the case may be, and all weight and related delivery information (including date, time, material type, route and truck number) shall be recorded.
(3) Recyclables Specifications. Collector shall
ensure or cause to be ensured that the quality of Recyclables continues to meet the specifications set out by Collector in its current Marketing Plan or such other specifications as are mutually agreed by Collector and the City Representative. City shall have no responsibility for the quality of Recyclables delivered by Collector to the Processing Facility nor for any Recyclables rejected by the Processing Facility or broker or other purchaser

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

21 because the Recyclables do not meet specifications. City shall make no warranty, either express or implied, with respect to the Recyclables, including but not limited to any warranty of merchantability and any warranty of fitness for a particular purpose.
(4) Disposal of Residue. Collector shall dispose
of, or provide for the disposal of, any and all residue remaining from the processing of Recyclables in accordance with. Applicable Law. The cost thereof shall be included in fees for Processing or Composting Facilities, as the case may be.
(5) Processing Fees. Collector shall pay for
processing of Recyclables, and Bulky Waste at City-reviewed Processing Facilities, Green Waste at a City-reviewed Composting Facility , Organic Waste at a City-revised Organic Waste Processing Facility, and the disposal of residue therefrom, unless otherwise mutually agreed by City and Collector. Collector shall not, under any circumstances, cause to be charged to City any material that was collected by Collector or by any other person without the express prior written authorization of the City Representative. (6) Collector Responsibility. In the event
Collector fails or is unable, for any reason whatsoever, to provide for processing of Recyclables, Recyclable Bulky Waste, Green Organic Waste, and Organic Waste, Collector shall reimburse City for any costs incurred by City in securing alternate processing services, including storage or disposal costs if such alternative is required, in light of cost, expediency, and lost revenue. b. Certification of Re-use. Collector shall use
Reasonable Business Efforts to obtain certifications of re-use of Recyclables, Bulky Waste and any other materials. Collected hereunder or diverted from disposal.
c. Transformation. Collector acknowledges that the
California Integrated Waste Management Act requires Solid waste diversion from landfill disposal and that “transformation,” as defined in California Public Resources Code Section 40201, provides for a maximum of ten percent (10%) diversion credit towards meeting the fifty percent (50%) diversion goal.

To the extent possible, Collector shall not process by means of transformation any Recyclables or Organic Waste materials targeted for collection through Collector’s Recycling and Organic Waste collection programs, nor shall Collector ship, transport, deliver or otherwise make available any such Recyclables or Organic Waste to any person for the purpose of transformation, without the

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22 express prior written authorization of City Representative.

However, if residue from any Processing Facility is disposed through transformation, Collector will provide City with the data to support diversion credit, if any.

Collector shall make reasonable efforts to ship, transport, deliver, or otherwise make available non-Recyclables or non- Organic Waste for the purpose of transformation in an amount necessary for the City to receive the ten percent (10%) diversion credit for transformation. Collector will provide City with the data to support diversion credit from transformation, if any. d. Indemnification for Failure to Meet AB 939 Goals.

Collector agrees to protect and defend City with counsel selected by Collector and approved by City, to pay all attorneys’ fees, and to indemnify and hold City harmless from and against all fines or penalties imposed by the California Integrated Waste Management Board if the diversion goals specified in California Public Resources Code Section 41780 as of the date hereof and hereafter throughout are not met by the City with respect to the Solid Waste Collected by Collector and if the lack in meeting such goals are attributable to the failure of the Collector to implement and operate the recycling or diversion programs or undertake the related activities required by this Agreement.
e. Minimum Diversion Requirements. Collector shall
implement and operate programs that will meet the fifty percent (50%) minimum diversion requirements for the Collector’s service area, based on the total weight of Collected Solid Waste. The Collector shall recycle, process, and/or market in a manner that entitles City to diversion credit as specified in California Public Resources Code, Section 41780.

If the City finds that additional programs are necessary to meet any required diversion goals, the City may require proposals for additional diversion programs to meet the diversion requirements.

If necessary City and Collector shall enter into good faith negotiations, but if agreement regarding programs and/or rate adjustments cannot be reached City reserves the right upon one hundred and twenty (120) days’ notice thereof to terminate this Agreement.

4.03 Disposal.
a. Disposal Facility. Collector shall transport and
deliver to a Disposal Facility and/or transfer station all Solid Waste, including Residential, Commercial, Industrial, City Solid

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23 Waste, Solid Waste collected in performing emergency services, and Bulky Waste which cannot be diverted.

Collector shall observe and comply with all regulations in effect at such Disposal Facility and cooperate with the operator thereof with respect to operations thereat, including directions to unload collection vehicles in designated areas, accommodating construction and maintenance, and hazardous waste exclusion programs. Collector shall at all times operate according to safe industry practices. Such Facilities shall be permitted under and in substantial compliance with Applicable Law. Collector shall make Reasonable Business Efforts to select Facilities which result in the least expensive disposal option for the City, taking into account any applicable tipping fees, revenue sharing, and transportation costs thereto, consistent with public health and safety, diversion provisions of AB 939 and successor statutes (including AB 341, AB 1826, and SB 1383), and Collector’s obligations hereunder. Collector shall cooperate with City in enforcing mandatory Commercial Recycling and Organic Waste efforts as adopted by AB 341 (Chapter 476, Statutes of 2012), AB 1826 (Chapter 727, Statutes of 2014), and SB 1383 (Chapter 395, Statutes of 2021), any Applicable Law, and their implementing regulations, as they may be amended. Collector shall provide any notices or information reasonably requested by City in enforcement of such requirements.
b. Disposal Fees. Collector shall pay for disposal of
Solid Waste by Collector at a Disposal Facility unless otherwise mutually agreed by City and Collector. Collector shall not, under any circumstances whatsoever, cause to be charged to City any material that was collected by Collector or by any other person, other than Solid Waste Collected hereunder without the express prior written authorization of the City
Representative.Indemnification.
(1) Collector Conduct Included. Collector shall
indemnify, defend with counsel approved by the City, pay all attorneys’ fees, protect and hold harmless the City (including parties described in this subsection below) from and against all Liabilities (defined in this subsection below) paid, incurred or suffered by, or asserted against, the City arising from or attributable to 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 Household Hazardous Waste at any place where Collector delivers,

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24 stores, processes, composts, or disposes of Solid Waste to the extent that such Liabilities are caused by the following:
(i) Collector Negligence or Misconduct.
the wrongful, willful or negligent act, error or omission, or the misconduct of the Collector;
(ii) Customer and Non-Customer Materials.

The collection, delivery, handling, processing, composting, or disposal by the Collector of Hazardous Waste, which are generated or placed in Collector’s collection containers by Collector’s Customers or by Persons placing such materials in Collector’s collection containers;
(iii) Failure to Comply with Hazardous Waste
Laws and Regulations. The failure of Collector to undertake Hazardous Waste training procedures required by Applicable Law with respect to its employees or any subcontractor or Collector’s Hazardous Waste Screening protocol described in Exhibit J, whichever is more stringent;
For the purposes of this section, “City” shall include its officers, employees, agents, Contractors, attorneys,
administrators, affiliates, representatives, servants, insurers, heirs, assigns, and any successor or successors to the City’s interest; “Collector” shall include its employees, officers, agents, subcontractors, and consultants performing or responsible for performing Services; and “Liabilities” shall include claims, actual damages (including special and consequential damages, whether in contract, statute, or in tort, or pursuant to any theory), natural resource damages, punitive damages, injuries, costs, financial loss, response remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, mediation, arbitration, legal or administrative
proceedings, interest, fines, charges, penalties, and expenses (including attorney’s and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever.

(2) City Negligence Excluded. The Collector shall
not, however, be required to reimburse or indemnify the City to the extent any such liabilities are due to the sole negligence of the City.
(3) Indemnification Survives Termination. Such
indemnification shall be limited to Liabilities resulting from Services from and after the date hereof through the Term.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

25 Indemnification resulting from Services during the Term shall survive the termination of this Agreement.
(4) Statutory Agreement. The foregoing indemnity
is intended to operate as an agreement pursuant to Section 107(e)of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9607(e) and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify the City from liability in accordance with this section.

The provisions of this subsection shall survive the termination of this Agreement.

4.04 Customer Service and Public Relations.
a. Phone Access.
(1) Toll-free Number. Collector shall maintain a
local telephone number, toll-free to Customers, at least during Office Hours (“Phone Hours”). The telephone number shall be listed under Collector’s name and the City’s governmental listings in the City telephone directory. Collector shall maintain telephone answering system capable of accepting at least five (5) incoming calls at one time. Collector shall provide an answering machine or answering service to take reports of missed pick-ups and other complaints which are received outside of Phone Hours.
(2) Emergency Number. Collector shall also
maintain a local emergency telephone number, toll-free to Customers, for use outside Collector’s Phone Hours, which shall be Separately listed as an emergency number under Collector’s name and under the City’s governmental listings in the City telephone directory. Collector shall have a representative, or answering service required to contact such representative, available at such emergency number outside Phone Hours, as soon as possible, and in no event more than one (1) hour following the time of the emergency call.
(3) Multi-lingual, TDD Services. Collector shall
at all times maintain the capability of responding to telephone calls in English, Spanish, and such other languages as City may direct. Collector shall at all times maintain the capability of responding to telephone calls through Telecommunications Device for the Deaf (TDD) Services. These capabilities shall be maintained for both the local telephone number and the emergency telephone number.
b. Customer Complaints and Inquiries. Collector shall
record in a computerized daily log all complaints, including date,

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26 time, complainant’s name and address if the complainant is willing to give this information, and nature and date and manner of resolution of complaint. Any such calls received via Collector’s answering service shall be recorded in the log and responded to no later than the following work day. This manual log shall be available for inspection by City during Office Hours. All incoming calls shall be answered within a maximum of four rings. Any call “on-hold” in excess of 1.5 minutes shall be switched to a message center where Collector shall maintain information in a daily log to enable a customer service representative to return customer calls. All “call backs” shall be attempted a minimum of one time prior to 6:00 p.m. on the day of the call. If the caller is not contacted on the first attempt, Collector shall make subsequent attempts on the next working day after the original call. Collector shall make a minimum of three attempts within twenty-four hours of the receipt of the call. If Collector is unable to reach the caller on the phone, Collector shall send a postcard to the caller.

All attempts to contact the caller shall be recorded on the log kept by Collector.
c. Office Hours. Collector shall maintain an office,
open from Monday through Friday at a minimum from 7:00 a.m. to 6:00 p.m. daily, and on Saturdays following recognized Friday holidays at a minimum from 7:00 a.m. to 6:00 p.m. The Office must be staffed by Collector during these business hours.

4.05 Public Education and Community Relations.
a. Community Relations. Collector’s plan for public
education and outreach, and community relations activities to implement route changes and Organic Waste collection, reviewed by City, is attached as Exhibit E. Collector shall timely and fully implement such plan. Collector shall distribute public education and outreach materials prepared and provided by the City to Customers for distribution with Customers’ quarterly bills in accordance with Exhibit E. Any other promotional materials or news releases will be developed with the City and distributed by the Collector.
b. News Media Relations. Collector shall notify City
Representative by telephone followed by email of all requests for news media interviews related to the Services within twenty-four hours of Collector’s receipt of the request. Before responding to any inquiries involving controversial issues or any issues likely to affect participation or Customer perception of services, Collector will discuss Collector’s proposed response with City.

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27 c. SB 1383 Education and Outreach. Collector shall use Reasonable Business Efforts to outreach and educate the public on the importance of recycling and separating Solid Waste in order to achieve maximum waste diversion in accordance with 14 CCR Sections 18985.1-18985.2. Collector shall develop and implement a program of educational presentations and materials concerning the importance of recycling and diversion, proper techniques for Solid Waste disposal and recycling, and options for the disposal of Hazardous Waste. The educational program shall include a well- defined component aimed at capturing Organic Waste, and Green Waste generated by landscaping services and contractors, including information for Customers on how and why Organic Waste and Green Waste should be collected and diverted. All community relations and promotional materials and related news releases shall be developed at Collector’s sole cost and expense. A new educational program shall be prepared for each fiscal year, and submitted to the City Manager no later than April 1st. Collector shall perform the recordkeeping requirements related to compliance with education and outreach requirements under 14 CCR Section 18985.3.

4.06 Emergency Services.

Collector shall provide, or begin providing, emergency services within twenty-four hours of notification by City. Emergency services are services beyond the services specified in this Agreement and include services needed following natural disasters such as earthquakes. Collector shall be paid at a rate equal to the Collector’s then applicable fee for such service, plus five percent (5%).

4.07 City Right to Perform Services.
a. Events. City reserves the right, which it may
exercise in its sole discretion, to perform, or contract for the performance of, any or all of Collector’s Service obligations, including the collection of Solid Waste or any portion thereof and transportation to a City-reviewed Processing Facility, Composting Facility or Disposal Facility, as the case may be, in the following events:
(1) Collector, due to Uncontrollable
Circumstances or for any reason whatsoever, fails, Solid Wastes, or is unable for a period of 48 hours to collect and/or at any time to transport Solid Waste or any portion thereof to a Processing Facility, Composting Facility, or Disposal Facility, as the case may be, selected in accordance with this Agreement;

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28 (2) Solid Waste generated by Customers for which
Collector is obligated to provide Services accumulates in the City to such an extent, in such manner or for such time that the City Manager or City Council determines that such accumulation endangers or threatens the public health, safety, or welfare; or (3) The City suspends or terminates this Agreement
or any portion of Collector’s Service obligations due to an Event of Default or continuance of an Uncontrollable Circumstance.

City has no obligation to continue providing such Services and may at any time, at its sole discretion, cease to provide such Services. However, City’s right to provide such Services shall continue until Collector can demonstrate to the City’s
satisfaction that Collector is ready, willing, and able to resume timely and full Service or until the City can make alternative arrangements for providing Solid Waste services comparable to Services in scope and price, which may include contracting with another service provider.
b. Notice. The City may give Collector written notice
that City is exercising its right to perform Services, which notice shall be effective immediately.
c. Service Assets. Upon giving Collector such notice,
City shall have the right to take possession of any or all of the Service Assets necessary and convenient in providing Services, and Collector will fully cooperate with City to transfer such Service Assets to the City and reimburse the City for any and all City’s costs and expenses incurred in taking over possession of such Service Assets in accordance with this Section. City shall have absolute and exclusive control over such Service Assets as though the City were the absolute owner thereof. The City shall assume complete responsibility for use of Service Assets while they are in its possession and shall maintain such Service Assets in the same condition as they were in when Collector transferred possession thereof to the City and shall return the Service Assets to Collector in the same condition as received, normal wear and tear excepted (subject to proper maintenance by Collector). The City shall indemnify and hold harmless Collector for any liability due to City’s use of the Service Assets, including damage to property and death or injury to hired persons.

City has no obligation to continue possession and/or use of such Service Assets and may at any time, in its sole discretion, cease possession and/or use. However City’s right to possess and use such Service Assets shall continue until Collector can demonstrate

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29 to the City’s satisfaction that Collector is ready, willing, and able to resume timely and full Service; until the City can make alternative arrangements for providing Solid Waste services comparable to Services in scope and price, which may include terminating all or a portion of this Agreement and contracting for related Services with another service provider.

d. Collector’s Personnel. Upon giving Collector oral
notice in accordance with this Section, the City may immediately engage personnel necessary or convenient for providing all or a portion of Services, including employees previously or then employed by Collector. However, City shall not be obligated to hire Collector’s employees and may use municipal employees or other Persons to provide all or a portion of Services, including driving Vehicles. Promptly upon City’s request, Collector shall make available to the City all Collector’s management and office personnel necessary or convenient for providing Services, including customer services and billing. The cost of the foregoing services and personnel shall be deducted from the Collector’s damages.
e. Records and Reports. Upon City’s request, Collector
shall promptly provide City with immediate access and/or possession of Records, including those related to routing and billing.
f. Waiver of Takings Claim. Collector agrees that the
City’s exercise of rights under this section does not constitute a taking of private property for which City must compensate Collector; and does not exempt Collector from any indemnifications made with respect to diversion, disposal, or Services generally, which Parties acknowledge are intended to extend to circumstances arising under this Section. Collector is not required to indemnify City against claims and damages arising from the negligence of City officers and employees and agents driving Vehicles.

4.08 Street Sweeping.
a. Scope of Street Sweeping Services. Collector shall
provide street sweeping services including all labor, materials, fuel, and equipment to all arterial, collector, commercial, residential and industrial streets, including cul-de-sacs, street centerlines, paved medians, left turn pockets, alleys, maintenance yards, intersections and facilities within the City.

Collector shall transport and dispose of all sweeping wastes in accordance with all City, County and Federal requirements.

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30 Sweeping wastes are to be off-loaded at the Upland Public Works Yard located at 1370 North Benson Avenue.
b. Locations. Collector shall provide street sweeping
services to the locations more particularly described in Exhibit “O” (“Street Sweeping Schedule”) which may be modified from time to time by the Director of Public Works or his/her designated representative upon providing thirty (30) days written notice to Collector. Collector shall provide sweeping services outside of the Street Sweeping Schedule on Exhibit “P” on an as-needed basis a maximum of twelve (12) times per year during regular sweeping hours, and an additional six (6) times per year outside of regular sweeping hours.

In addition to those sweeping services in Exhibits “N” and in “O,” Collector shall provide sweeping services for special community events a maximum of ten (10) times per year, not to exceed a total of sixty (60) sweeping hours. Community events are selected at the sole discretion of City, and City shall provide forty-eight (48) hour notice to Collector when possible. c. Frequency. Collector shall operate sufficient
number of sweepers per day to provide street sweeping services, five days a week in accordance with the City’s Street Sweeping schedule as identified in Exhibit “N” including, but not limited to residential streets, alleys, commercial and industrial streets, City-owned parking lots, state highways, City arterial streets, curbs, gutters, and medians and islands with or without curbs. All sweeping must be consistent with City posted signage and to City specifications, which may include varying start times for different types of areas. CITY reserves the right to adjust the Street Sweeping Schedule identified in Exhibit “N” at any time with written notice to Collector.
d. Hours. Collector shall only provide street sweeping
services during the hours designated for each respective street.

The Director of Public Works or his/her designated representative may modify the hours to perform sweeping and Collector shall accommodate those hours of sweeping.
e. Routing. Collector shall provide a routing plan to
the Director of Public Works or his/her designated representative.

The Director of Public Works or his/her representative reserves the right to modify Collector’s routing plan as he/she deems necessary.
f. Emergency Services During Regular Business Hours.

During regular business hours, Monday through Friday from 6:00 am

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31 to 6:00 pm, the City may call upon Collector to respond to an emergency situation that requires immediate street sweeping services. These situations may include, but not be limited to, spill of non-hazardous waste and debris, debris of accidents involving automobiles, storms, and floods. Collector shall respond to these emergency services requests within two (2) hours of notification. Failure to respond within the designated time will result in penalty as outlined in Article 11 of the Agreement.

Collector shall perform emergency services during regular business hours at the same unit price as the regular street sweeping services specified herein.
g. Emergency Services After Hours. During weekends,
holidays and after work hours (Monday to Friday from 6:00 pm to 6:00 am), the City may call upon Collector to respond to an emergency situation that requires immediate street sweeping services. Collector is required to respond to these emergency services requests within two (2) hours of notification time.

Failure to respond within the designated time will result in penalty as outlined in Article 11 of the Agreement. Collector shall perform emergency services during after-hours at the same unit price as the regular street sweeping services specified herein. h. Holidays. Collector shall provide street sweeping
services on days that the City provides Collection services and recognize the holidays in Exhibit D.
i. Equipment. A sufficient number of primary sweepers
and back-up sweepers shall be provided by Collector. The primary sweepers shall have installed an “active” or “passive” Global Positioning System (GPS) that will enable Collector to view, via computer, equipment location at all times. The GPS must be able to track non-sweeping stops and speed of the equipment and be able to generate reports and maps with an exact description of services.

Data collected shall be provided to City on a daily basis or other schedule mutually agreed upon by Collector and City.

Collector shall be responsible for the operation and
maintenance of the street sweepers, and both the primary and secondary vehicles. Collector shall be responsible for all maintenance, insurance and vehicle replacement costs of all street sweeping vehicles.

All street sweepers must meet South Coast Air Quality
Management District’s (SCAQMD) PM10-efficient standards and be certified by SCAQMD as meeting the testing and performance

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32 standards set forth in SCAQMD Rule 1186.1 and any future regulatory requirements including the use of alternative fuels.

Collector shall comply with the most up-to-date edition of the California Stormwater Best Management Practices issued by the California Stormwater Quality Association.

Sweepers shall be maintained in accordance with the
manufacturer’s instructions and to the City’s satisfaction. Each sweeper shall be completely refurbished and repainted no less than once every five (5) years. City reserves the right to inspect sweepers and Collector’s physical operations on an annual basis to ensure proper maintenance of equipment and sweepers.

The noise level generated by equipment or vehicles shall not exceed a single-event noise level of seventy-five (75) decibels at a distance of twenty-five (25) feet from the vehicles. Collector shall submit to City, upon City’s request, a certificate of vehicle noise level testing by an independent testing entity approved by the City. Each vehicle used for street sweeping shall be equipped with an audible warning device that is activated when the vehicle is backing up.

Collector shall affix upon the street sweeping vehicles magnetic signs, decals or painted signs approved by the Director of Public Works that contains the Collector’s name, local phone number and vehicle identification number visibly displayed on the vehicle.
j. Personnel. Sweeping shall be conducted by personnel
adequately trained in sweeper operation. Collector shall designate the same operators to sweep in the City on a permanent, regular basis. If there is an operator change, Collector will notify City within 24 hours. All operators will be required to speak English. k. Services During Wind Down Period. In the event the
City provides a Wind Down Notice to Collector, then during the Wind Down Period, Collector shall not be obligated to provide the Street Sweeping Services set forth in Section 4.08 of the Agreement, nor shall the City be entitled to receive the City Credits defined in Section 10.05.

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33 ARTICLE 5 MISCELLANEOUS SERVICE PROVISIONS

5.01 Title to Waste. The Parties agree and intend that all Solid Waste except Hazardous Waste and Household Hazardous Waste becomes the property of Collector upon being set out for Collection.

5.02 Compliance with Law. Collector shall perform, and shall cause any contractors or SubContractors to perform, all Services in accordance and compliance with Applicable Law, including obtaining and maintaining throughout the Term all necessary Permits, licenses, and approvals required to perform Services.

Collector shall show proof of such Permits, licenses, or approvals and shall demonstrate compliance with the terms and conditions of such Permits, licenses, and approvals upon the request of the City.

The City Manager shall have the power to establish rules and regulations relating to the accumulation, collection, recycling, composting, disposal, and management of Solid Waste not inconsistent herewith and with Applicable Law, which the City Manager finds are reasonably necessary for enforcement hereof or of Applicable Law or for preservation of the public peace, health, and safety. Collector agrees to comply with any and all such rules and regulations, subject to adjustments in the Service Fee defined in Section 10.01 for Changes in Law.

Reference to particular provisions or requirements of Applicable Law herein shall not be construed to limit Collector’s obligation to comply with all provisions of Applicable Law. In the event of any inconsistency between Applicable Law and this Agreement, the more stringent provision shall apply. Nothing herein shall be construed to relieve the Collector of any obligations imposed by Applicable Law.

5.03 Cooperation with Waste Studies. Collector shall, at its sole expense, conduct annual route reviews each calendar year for prohibited Container contaminants in Containers in a manner that is deemed safe by the Collector, is approved by City, and is conducted in a manner that results in all routes being reviewed annually pursuant to 14 CCR Section 18984.5. Collector shall visually inspect the contents of a reasonably representative number of Containers, as directed and approved by City.

Collector shall develop a route review methodology that complies with the requirements of 14 CCR Section 18984.5(b). Collector shall submit its proposed route review methodology for the coming year to the City no later than January 15 of each year describing its proposed methodology for the calendar year and schedule for

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34 performance of each route’s annual review. Collector’s proposed route review methodology shall include its plan for Container inspections and shall also include its plan for prioritizing the inspection of Customers that are more likely to be out of compliance. City shall review, comment on, and approve the proposed methodology. Collector may commence with the proposed methodology upon approval. If City notifies Collector that the methodology is inadequate to meet the requirements of SB 1383, Collector shall, at its sole expense, revise the methodology and, after obtaining CITY approval, conduct additional route reviews, increased Container inspections, or implement other changes using the revised procedure.

Collector shall document Contamination with still pictures or video, and will notify the Customer of the Contamination by following the applicable procedures specified in 14 CCR Section 18984.5. Collector shall perform the recordkeeping requirements for Container minimization in 14 CCR Section 18984.6. Collector may, at its discretion Collect the Container as Recyclable Materials, Organic Materials, or as Solid Waste.

Collector shall conduct waste stream audits in accordance with 14 CCR Section 18984.5 and shall analyze the quantity and composition of the waste stream for each Customer, and shall recommend practices and techniques for improving the diversion rate of each Customer’s waste stream.

Collector shall cooperate with City on any and all waste composition studies, including modification of routes, separate collection of individual Customer’s Solid Waste, and/or delivering targeted loads of Solid Waste to a City-designated location or locations; provided that if such location is farther than the Processing Facility, Composting Facility, and/or Disposal Facility selected hereunder, Collector shall be compensated for additional mileage or documented costs associated with conducting waste studies.

5.04 Public Performance Review. City Council shall have the right and sole option to conduct a public hearing upon sixty days’ Notice to Collector at such time that it selects, not more than once (1) annually, to review Collector’s performance and quality of Service. Collector shall attend and participate in such hearing.

Council may use Records and reports, including records of Customer complaints, as a basis of such reviews. Within thirty (30) days after the conclusion of the public hearing, the City Council shall issue a report with respect to the matters raised at the hearings.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

35 If any breach of or noncompliance herewith is found, the provisions of Article 11 shall apply.

5.05 Service Materials Belong to City. All data, reports, documents, brochures, public education materials, and other computerized, written, printed, or photographic materials developed by City or Collector in connection with Services, whether developed directly or indirectly by City or Collector, shall be and remain the property of City without limitation or restriction on the use of such materials by City. Collector shall not use such materials in connection with any project not connected with this Agreement without the prior written consent of City.

5.06 Procurement of Recycled Materials. Collector shall serve as a direct service provide for the purpose of the City meeting its annual recovered organic waste procurement target, and procure the products and quantities necessary for the City to meet its annual recovered organic waste procurement target under 14 CCR sections 18993.1-18993.2. Collector shall use Reasonable Business Efforts to procure supplies and Containers with post-consumer recycled content, including paper products for all publicity, billing, and other management and operational Services.

5.07 Hazardous Waste. Collector shall implement the Hazardous Waste screening, identification, and prevention protocol attached as Exhibit J. If Collector inadvertently delivers materials to any Processing Facility, Composting Facility, or Disposal Facility which comprise Hazardous Waste and Collector cannot identify or fails to remove it, Collector shall arrange for its proper disposal in accordance with Applicable Law and/or cooperate with such Facility owner or operator with respect thereto.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

36 ARTICLE 6 CHANGE IN SCOPE OF SERVICES

6.01 Change in Scope of Services.
a. Upon City Direction. The City reserves the right to
direct Collector to implement a change in scope of Services at any time, including new or amended diversion programs or special services, for any reason whatsoever, subject to adjustments, if any, of the Service Fee by agreement of the Parties or by arbitration.
b. Upon Collector Proposal. The Collector may propose
to the City a change in the scope of Services, including new developments in collection, recycling, and processing technologies and techniques, whether on the Collection routes or at a Processing Facility or Composting Facility, at any time, for any reason whatsoever, subject to City approval.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

37 ARTICLE 7 RECORDS AND REPORTING

7.01 Records
a. Maintenance. Collector shall maintain any and all
ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for Services, the Service Fee, or performance hereunder, including routing, level of each Customer’s services, inventory, maintenance logs, etc. (“Records”), for the Term plus two years, or any longer period required by Applicable Law. Collector shall further maintain computerized data base(s) in computerized format containing a complete Customer file, including all information required for the reports specified in this Article 7 and sufficient to allow input of information for City and Collector to reconcile the Service Fee.
b. City Inspection and Audit. Upon Notice by the City,
Collector shall use Reasonable Business Efforts to provide copies of Records to City or City’s designees for inspection or audit at City Hall. Otherwise, Collector shall make Records available to City or City’s designees for inspection or audit at the Local Office or Collector’s address indicated for receipt of Notices during Office Hours. Where City has reason to believe that Records may be lost or discarded due to dissolution, disbandment or termination of Collector’s business or other reason, City may require that Collector give City custody of the Records and that the Records and .documents be maintained in City Hall, in which event access to such Records shall be granted to any Person duly authorized by Collector. Collector shall assure that the computerized data bases shall at all times be accessible by City.

Collector shall use Reasonable Business Efforts to promptly provide the City any additional information relevant hereto which is not specified in this Article 7.
c. SB 1383 Recordkeeping. Collector shall prepare and
maintain the records identified in 14 CCR Section 18995.2(f).

7.02 Reporting.
a. Monthly. Collector shall submit monthly reports to
City in written form and compatible computerized format, containing, at a minimum, a record of the Solid Waste disposed of and Diverted. These reports shall be due on the fifteenth day of each month for the preceding month.
b. Quarterly. Collector shall submit quarterly reports
to City in written form and compatible computerized format in

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

38 substantially the form set out in Exhibit K and containing, at a minimum, the information listed therein. These reports shall be due each year on the fifteenth day of April, July, October, and January.
c. Annual. Collector shall submit annual reports to
City in written form and compatible computerized format totaling the information contained in the quarterly reports for the previous year, in substantially the form set out in Exhibit L and containing, at a minimum, the information listed therein. These reports shall be due within 30 days of the end of the reporting year.
d. SB 1383 Reporting. Collector shall assist City in
reporting information about implementation and compliance with SB 1383 Regulations and in accordance with Article 13 of Chapter 12 of Title 14 of the CCR.
e. Additional Information. Collector shall use
Reasonable Business Efforts to incorporate additional information from Records promptly upon Notice from City.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

39 ARTICLE 8 INDEMNITIES, INSURANCE, BONDS

8.01 Collector Indemnification and Defense.
a. Indemnification of City. Collector agrees that it
shall protect, defend, indemnify and hold harmless City, its elected officials, officers, employees, volunteers and agents from and against any and all losses, liabilities, fines, penalties, claims, damages, liabilities or judgements, including attorneys’ fees and costs arising out of or resulting in any way from City’s grant of this franchise to Collector or Collector’s exercise of the franchise including the provision of Services under this Agreement, unless such claim is due to the sole negligence or willful acts of City, its elected officials, officers, employees, volunteers or agents.

Subject to the scope of this indemnification and upon demand of the City, made by and through the City Attorney, Collector shall protect City and appear in and defend the City its elected officials, officers, employees, volunteers and agents, in any claims or actions by third parties, whether judicial,
administrative or otherwise, including, but not limited to disputes and litigation over the definition of “Solid Waste,” “Recyclables” or “Organic Waste” or the limits of City’s authority with respect to the grant of franchises, exclusive or otherwise, involving the collection of Solid Waste, arising out of the exercise of this Agreement by Collector or claims by other Persons disputing the rights and privileges granted by City in this Agreement. This provision shall survive the expiration of the period during which Collection Services are to be provided under this Agreement. City and Collector agree to confer following any trial to decide jointly whether to appeal, or to oppose any appeal.

In the event City and Collector jointly agree to appeal, or to oppose any appeal, City and Collector agree to share equally cost of appeals. Should either City or Collector decide to appeal, or to oppose appeal, and the other decide not to appeal, or to oppose appeal, the party which decides to appeal, or oppose appeal, shall bear all fees and costs of the appeal or the opposition to the appeal.
b. Hazardous Substances Indemnification. Collector
shall indemnify, defend, protect and hold harmless City, its elected officials, officers, employees, agents, assigns and any successor or successors to City’s interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs,

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40 losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney’s and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) or any kind whatsoever paid, incurred or suffered by, or asserted against, City or its elected officials, officers, employees, volunteers or agents arising from or attributable to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous substance or Hazardous Waste at any place where Solid Waste collected pursuant to this Agreement is or has been transported, transferred, processed, stored, disposed of or has otherwise come to be located by Collector or its activities pursuant to this Agreement that result in a release of hazardous substances into the environment. The foregoing indemnity is intended to operate as an agreement pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, “CERCLA”, 42 U.S.C. Section 9607(e), and California Health and Safety Code Section 25364, to defend, protect, hold harmless and indemnify City from all forms of liability under CERCLA, 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 for any and all matters addressed in this Section 8.01. This provision shall survive the expiration of the period during which Collection Services are to be provided under this Agreement.
c. AB 939 Indemnification. Collector agrees to
implement all requirements of the City’s Source Reduction and Recycling Element and to develop new requirements, as needed, in order to cause the City to be in compliance with AB 939. Collector agrees to protect, defend, indemnify and hold City harmless against all fines or penalties imposed by the California Department of Resources Recycling and Recovery in the event the diversion, source reduction and recycling goals of AB 939 are not met by the City of Upland with respect to the waste stream covered by this Agreement, City’s Source Reduction and Recycling Element is determined to be deficient, or Collector’s delays in providing information prevent City from submitting reports required by AB 939 in a timely manner.

City and Collector agree to negotiate with respect to any additional AB 939 related services, which Collector and City agree to implement. The above indemnification shall be implemented in accordance with Applicable Law in the manner which provides the City with the maximum indemnification rights allowed by Applicable Law.

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41 d. Liabilities During Term Only. Such indemnification shall be limited to Liabilities resulting from Services from and after the date hereof through the Term, it being specifically understood that any liabilities attributable to the Collector’s actions prior to the date hereof are excluded from such indemnification. However, SUCH INDEMNIFICATION RESULTING FROM

SERVICES DURING THE TERM SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
e. Reduction of CERCLA and Other Liability. City and
Collector agree to meet annually in the second calendar quarter of each calendar year to discuss ways to reduce their respective potential CERCLA and other liabilities to third parties.

8.02 Insurance.
a. Insurance Requirements. The Collector shall, at
Collector’s sole cost and expense, secure and maintain insurance acceptable to the City (Attorney or Risk Manager) in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by the Collector, its agents, representatives or employees. The Collector shall maintain the types and amounts of insurance coverage, together with related specified deductibles, listed in this Section 8.02 or required by Applicable Law, whichever is greater.
b. Minimum Limits of Insurance. Collector shall
maintain limits of insurance no less than:

General Liability: $10,000,000 aggregate and $5,000,000 per occurrence for bodily injury, personal injury and property damage.

If Comprehensive General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the activities related to this Agreement or the general aggregate limit shall be twice the required occurrence limit.

Commercial Auto Liability: $10,000,000 per accident for bodily injury, including accidental death, and property damage that may arise from operations pursuant to this Agreement.

Workers’ Compensation and Employers’ Liability Insurance: Workers’ Compensation as required by the Labor Code of the State of California and Employers Liability limits of at least a minimum $1,000,000 per accident.

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42 c. Other Insurance Provisions. The insurance required by this Agreement shall be with insurers, which are Best A- rated, or better. The City shall be included as an additional insured on each of the policies and policy endorsements. The Collector shall obtain the written consent of the City’s Risk Manager prior to changing insurers providing insurance under this Agreement, which consent shall not be withheld unreasonably. The following language will be made a part of all insurance policies required by this Section:
(1) “The City of Upland, its officials, officers
employees, volunteers, and agents, are hereby added as additional insureds as respects liability arising out of activities performed by or on behalf of Collector.”
(2) “This policy shall be considered primary
insurance as respects any other valid and collectible insurance the City of Upland may possess including any self-insured retention the City of Upland may have, and any other insurance the City does possess shall be considered excess insurance and shall not contribute with it.”
(3) “ This policy shall act for each insured, as
though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company.”
(4) “ Thirty (30) days’ prior written notice by
certified mail, return receipt requested, shall be given to the City of Upland in the event of suspension, cancellation, reduction in coverage or in limits or non-renewal of this policy for whatever reason. Such notice shall be sent to the City Manager, City Attorney and City Clerk.”
d. Evidence of Insurance Coverage; Insurance
Repository. Collector shall provide insurance in the coverage areas and in the dollar amounts specified in this Article 8 upon execution of this Agreement. Thereafter, copies of the Collector’s Certificate(s) of Insurance shall be provided to the City within thirty (30) days of each Agreement Year. Collector shall file copies of the policies and executed endorsements evidencing the above required insurance coverage with the City Clerk. Collector also agrees to establish an insurance policy repository and to maintain copies of insurance policies required pursuant to this Agreement for one hundred (100) years after the end of the Term during which Collection Services are to be provided pursuant to this Agreement. Collector shall notify City’s Risk Manager and

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43 City Attorney before destroying copies of such policies. This provision shall survive the expiration of the period during which Collection Services are to be provided under this Agreement.

8.03 Performance Bond. Collector shall secure and throughout the Term maintain in full force and effect a performance or surety bond to guarantee and assure the timely and complete performance of Services in an amount no less than one million dollars ($1,000,000), fully prepaid for each Agreement Year. The performance bond shall be delivered by the Collector to the City within thirty (30) days of execution of this Agreement. Proof of renewal shall be provided to the City every twelve (12) months.

Collector shall ensure that the bonding company provides the City with notice of non-renewal within ten (10) days of any non-renewal.

Such bond shall a name the City as obligee and provide at least thirty (30) days’ prior notice of any cancellation. Collector shall procure such bond from underwriters approved by the City Manager, licensed in California, rated not less than “A- VII” by A.M. Best Company, Inc. The form of the bond and the surety are subject to the approval of City’s Risk Manager and the City Attorney. The condition of the performance bond shall be such that if Collector shall well and truly perform the covenants, promises,
undertakings, and obligations contracted by Collector to be performed under this Agreement, then the obligation of the bond shall be void; otherwise it shall remain in full force and effect.

The bond shall terminate and be canceled upon the completion of all of Collector’s obligations under this Agreement. City shall execute and deliver to Collector or Collector’s surety company promptly upon Collector’s completion of all of Collector’s obligations under this Agreement such certificates or other documents as either of them may reasonably request for the purpose of terminating and canceling such performance bond.

8.04 Letter of Credit. As an alternative to such performance bond, at City’s option Collector may deposit with City a fully prepaid, irrevocable letter of credit for at least the duration of the Agreement Year for which the letter of credit is deposited in the same amount as such performance bond. The form of the letter of credit and the issuer of the letter of credit are subject to approval of the City Manager and the City Attorney. Nothing herein shall in any way obligate City to accept a letter of credit in lieu of the performance bond.

8.05 City’s Right to Draw Against Performance Bond/Letter of Credit. City shall have the right to draw against the performance bond or the letter of credit in the event of a breach or default of this Agreement or the failure of Collector to perform fully any

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44 obligation under this Agreement. Within five (5) calendar days of receipt of notice from City, Collector shall renew or replace such sums of money as needed to bring the faithful performance bond or letter of credit current.Financial Guaranty Agreement. Collector shall ensure that parent corporation or its successors or assigns acceptable to the City, execute and maintain a legal, valid, and binding Financial Guaranty Agreement in the form appended hereto as Exhibit O, and maintain that Financial Guaranty Agreement in effect as of the date hereof and throughout the Term. Collector shall cause a fully executed original of the Financial Guaranty Agreement to be delivered to City within thirty (30) days of execution of this Agreement.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

45 ARTICLE 9 CRIMINAL ACTIVITY OF COLLECTOR.

9.01 Criminal Activity of Collector. Should the Collector or any of its officers or directors have a criminal conviction from a court of competent jurisdiction with respect to conviction for any crime, including racketeering, indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of the Collector or its officers or directors; or should the Collector or any of its respective officers or directors have made an admission of guilt or pled nolo contendere to the conduct described in this subsection above, which is a matter of record, then each employee, officer, or director, as the case may be, of the Collector responsible for such proscribed conduct shall be promptly terminated and/or replaced.

Collector shall have fifteen (15) days’ notice and opportunity following such conviction to present evidence in mitigation thereof, and on and after such fifteenth day, if such employee, officer, or director is not promptly terminated or replaced, the City reserves the right to unilaterally terminate this Agreement or to impose such other sanctions (which may include financial sanctions, temporary suspensions, or any other condition deemed appropriate short of termination) as it shall deem proper.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

46 ARTICLE 10 SERVICE FEES

10.01 Collector Service Fee. The Collector shall receive payment, net of any applicable liquidated damages, for services rendered under this Agreement as compensation for performing Services (the “Service Fee”) or portion thereof, according to rates set forth for each Customer’s individual Services in Exhibit M.

The Service Fee includes all Collector’s Direct Costs and Indirect Costs plus profit or return, of providing Services including all fueling costs, regardless of the location of the fueling station and/or fuel types and labor and travel time to/from the fueling station. No compensation shall be provided or paid to Collector by City or by any Customer except as expressly provided herein.

10.02 Franchise Fee. Collector shall pay a Franchise Fee to City each month. Collector has proposed and City has agreed that the amount of the Franchise Fee shall be equal to ________ percent (____%) of Gross Receipts for all services performed under this Agreement and shall be paid in equal monthly installments by check. Collector and City agree the Franchise Fee is a negotiated amount that is reasonably related to the value of the rights granted to Collector under this Agreement. City may use the Franchise Fee for any lawful purpose. The Franchise Fee shall be considered a reduction to Collector’s profit in the calculations performed in Exhibit N. Accordingly, the Franchise Fee is a cost paid solely by Collector. The Franchise Fee amount shall be increased annually by the same percentage as the rate adjustment factor calculated for that rate period.

10.03 Recyclables Revenue. The Collector shall pay to
the City fifty percent (50%) of all revenue earned from the sale of recyclables, and may keep the remainder.

10.04 Additional Revenue; Rebates; State, Local, or
Federal Grants and/or Incentive Money. Any additional revenue, rebates, state, local, or federal grants and/or incentive money generated as a result of source reduction, public education, recycling, organic waste, used motor oil, or household hazardous waste programs earned, received, or collected by the Collector shall be paid to the City.

10.05 Collector Payment to the City. Collector shall make payment to the City for items listed in Section 10.04 on a quarterly basis, on the fifteenth day of the month following the prior quarter ending date. Each such payment shall be accompanied by an accounting, which sets forth Collector’s gross receipts collected during the preceding calendar quarter.

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47 Additionally, the City shall receive as credit against Collector’s monthly billing for the following: i.) two hundred thousand dollars ($200,000) annually for maintenance and repair of City streets, alleys and public right of ways used or impacted by Collector and ii.) one hundred fifty thousand dollars ($150,000) annually for Household Hazardous Waste (“HHW”) and home generated sharps waste (“SHARPS”) as defined in Section 117671 of the California Health and Safety Code. These amounts will be adjusted annually in accordance with Section 10.06 (collectively, the “City Credits”), except that no downward adjustment shall be made.

No acceptance by City of any payment shall be construed as an accord that the amount is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim City may have against Collector for any additional sums payable under the provisions of this Agreement or any amendment to this Agreement. All amounts paid shall be subject to independent audit and recomputation by City. If, after audit, such recompuatation indicates an underpayment of less than three percent (3%), Collector shall pay to City the amount of the underpayment within ten (10) days of receipt of written notice from City of the amount owed. If, after audit such recomputation indicates an underpayment of equal to or more than three percent (3%), Collector shall reimburse City for all reasonable costs and expenses incurred in connection with the audit and recomputation, and the amount underpaid, within ten (10) days of receipt of written notice from City of the amount owed. If, after audit, such recomputation indicates overpayment, City shall notify the Collector in writing of the amount of the overpayment, less costs and expenses incurred in connection with the audit and recomputation. Collector may offset the payment of payments (as appropriate) next due following receipt of such notice by the amount specified therein.

10.06 Adjustments.
a. Adjustments to Total Customer Rates. For purposes
of adjustments to the Service Fee (a portion of the Total Customer Rates) pursuant to this Section 10.06, the Parties agree that, as of July 1, 2007, the costs of disposal and processing represent 20 percent of the Service Fee (the “Tipping Fee Component”), and all other costs of Services represent 80 percent of the Service Fee (the “Service Component”). Commencing July 1, 2008, and annually thereafter, City shall adjust the proportional allocation of the Service Fee between the Service Component and the Tipping Fee Component, to the extent warranted by any rate adjustments that go into effect at that time. Except as set forth in paragraph “c” of this Section 10.06 regarding changes in the Tipping Fee(s), all

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48 adjustments to the Total Customer Rates shall be to the Service Component of the Service Fee, and the Program Cost Component. b. Automatic Fee Adjustments to Service Component and
Program Cost Component.
(1) Description of the Adjustment. Upon the
effective date of this Agreement, and annually thereafter, the Collector shall, at Collector’s expense, subject to compliance with all provisions of this Article, and subject to the notice and hearing requirements of Proposition 218, receive an annual adjustment in the Service Fees.

The Service Component and the Program Cost Component of the Service Fees shall be increased or decreased by the percentage change in the published Consumer Price Index (CPI), All Urban Consumers for the Riverside-San Bernardino-Ontario, CA
Metropolitan Area. This adjustment shall not exceed four percent (4%) per annum, regardless of the percentage change in the CPI. If the CPI for the previous year was in excess of four percent (4%), the additional percentage may be rolled over to the following year so long as the CPI adjustment for that year does not exceed four percent (4%). The disposal fee (also referred to as the tipping fee) shall be adjusted annually by the lesser of 1) the percent change in the CPI (not to exceed four percent (4%) per annum) or 2) the actual increase in disposal fees paid by Collector to third party disposal facilities, if any, (not to exceed four percent (4%) per annum).
(2) Procedure. On or before March 1, 2023 and
annually thereafter, Collector shall deliver to the City documentation showing the percentage change in the CPI during the previous calendar year. The Collector shall deliver at the same time adjusted rate sheets for the Total Customer Rates specified in Exhibit M, showing an upward or downward adjustment resulting from the application of the percentage change in the CPI to the Service Component and the Program Cost Component. Annual adjustments shall be made only in units of one cent ($0.01).

Fractions less than one cent ($0.01) shall not be considered in making adjustments.
c. Special Rate Review.
(1) Description of the Adjustment. Collector is
entitled to apply to City for consideration of a Special Rate Review, or City may initiate such a review, upon the occurrence of an Uncontrollable Circumstance which increases or decreases Collector’s Direct Costs and/or Indirect Costs of Services

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49 (provided that Collector shall first apply the proceeds of any insurance available to mitigate or eliminate the need for any such adjustment). Any change to the Service Fees resulting from an Uncontrollable Circumstance shall be an adjustment of the Service Component of the Service Fee, as applicable. No rate adjustment shall be made pursuant to this paragraph “c” for events or circumstances occurring prior to the effective date of this Agreement.
(2) Procedure. Collector shall seek no more than
a single annual adjustment, which adjustment (if approved by City), shall become effective at the time of the CPI adjustment described in paragraph “b” of this Section 10.06. Collector must submit its request for a Special Rate Review and complete cost and operational data in a form and manner specified by City no later than March 1 of the year in which the proposed change in the Service Fee is to take effect.

Should Collector request a Special Rate Review, City shall have the right to review any or all costs associated with Collector’s Services under this Agreement. For each such request, Collector shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to the City with support for assumptions made by Collector in preparing the estimate, and shall include documentation supporting its request. Additionally, if required by the City, Collector shall also provide a copy of its certified annual financial statements prepared by a Certified Public Accountant or a licensed public accountant, which shall have been prepared in compliance with Rule 58 of the “Rules and Regulations of the State Board of
Accountancy,” as established by the California Code of
Regulations, Title 16, Division 1. Such Certified Public Accountant or licensed public accountant shall be entirely independent of the Company and shall have no financial interest whatsoever in the business of the Company. The City may specify the form and detail of the financial statements. The City shall have the right to verify the Company’s reported changes in costs. (3) Decision; Remedy. Collector shall bear the
burden of justifying to City by substantial evidence any entitlement to an increase in the Service Fees under this Section.

The City Council shall review Collector’s request and, in the City Council’s sole judgment (subject to compliance with Article XIII D, Sec. 6(a) of the California Constitution, to the extent applicable) make the final determination on the appropriate amount of the adjustment if any within 30 days of receipt of Collector’s request.

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50 The City Council may grant some, all or none of the requested increase. Collector expressly agrees that it does not have a cause for action for damages against City.
d. Changes in Scope of Service. The City shall approve
adjustments of the Service Fee for changes in the scope of Services as specified in Article 6 of this Agreement. In the event either party requests a modification of a Service provided pursuant to this Agreement, or additional services not currently included within this Agreement, Collector shall furnish City with complete, projected operational and cost data for the modified or additional Service. City reserves the right to require that Collector supply any additional cost data or other information it may reasonably need to ascertain the appropriate adjustment. City further reserves the right to employ qualified independent consulting services to review data submitted by Collector. For Collector- initiated proposals for service modifications or additional services, Collector shall pay all City consultant and attorney expenses relating to the review.
e. Customer Notification. No later than May 15 prior
to the date the adjusted rates become effective each year, Collector shall notify Customers of any changes in their Solid Waste Collection Service rates.
f. No Release or Assumption of Liability. Collector
agrees that payment to the Collector by the City for changes in scope of Service or Uncontrollable Circumstances shall not constitute nor be deemed a release of the responsibility and liability of Collector, its employees, subcontractors, agents, and consultants for the Services performed hereunder nor shall such payment be deemed to be an assumption of responsibility or liability by City for any defect or error in such Services.

10.07 Collector Billing.
a. Billing and Payment – Residential Customers.

Subject to the provisions of this Section 10.07 and Exhibit H, Collector shall be responsible for billing Residential Customers.

Residential Customers shall be billed for Solid Waste Collection Services bi-monthly, in arrears. Collector shall calculate each Customer’s bill for Solid Waste Collection Service based on the Customer’s Service requirements. The Service Fees shall not exceed the rates listed in Exhibit M. Collector may itemize or identify such costs, with prior approval by City.
b. Billing – Commercial Customers. Collector shall be
responsible for billing Commercial Customers. Commercial Customers

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51 shall be billed for Solid Waste Collection Services monthly in arrears. Collector shall calculate each Customer’s bill for Solid Waste Collection Service based on the Customer’s Service requirements. The Service Fees shall not exceed the rates listed in Exhibit M. Collector may itemize or identify such costs, with prior approval by the City. Should City adopt a Waste Management Fee as described in Section 10.09, Collector shall include the amount of that fee in its bills to Commercial Customers, and shall remit to City all Waste Management Fees received, pursuant to the procedures in Section 10.05.
c. Collector Mailing. Collector shall incorporate with
the billing additional information as required by City, including Collector’s telephone number for Customers to call with questions and/or disputes on Solid Waste Collection Service billing, and shall enclose flyers or other notices provided by the City to Customers as required hereunder. Collector shall mail bills substantially in accordance with billing policy and rules of the Collector and approved by the City. Collector billing policy and rules are attached as Exhibit G, in effect as of the date hereof.

Collector shall train Collector employees in maintaining records of payments, delinquencies, late charges (if any), as well as promptly responding to billing inquiries and resolving billing disputes. Collector shall mail the Service bills to Commercial Customers no later than ten (10) days following the last day of each month. Collector shall incorporate with the billing additional information as required by City, including Collector telephone number for Customers to call with questions and/or disputes on Service billing, and shall enclose flyers or other notices provided by the City to Customers as required hereunder. d. Data Base. Collector shall maintain Solid Waste
Collection Service billing accounts and records in accordance with Article 7.
e. Dispute Resolution. Collector acknowledges that
City shall not be responsible for taking Customers’ calls or responding to Customers’ correspondence with respect to Solid Waste Collection Service billing inquiries or disputes, and that it is Collector’s obligation to do so.

10.08 Disputes.
a. Customer Notice of Dispute. If a Customer disputes
any amount calculated in good faith by Collector, the Customer shall pay the undisputed amount and give Collector Notice of such dispute within fifteen (15) days of receipt thereof, together with

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52 any request for additional information, identified with reasonable specificity, with respect thereto.
b. Collector’s Response. Within seven (7) days of
receiving the Customer’s Notice, the Collector shall respond to the Customer’s dispute and supply any requested information. If the Collector does not respond within such time, Collector will be deemed to concur with the Customer. If Collector concurs or is deemed to concur, it shall promptly amend the disputed invoice. c. Dispute Resolution. If the Customer disagrees with
Collector’s response and the Customer and Collector cannot reach agreement during an ensuing fifteen (15) day period following the Collector’s response, the Collector shall submit the matter for determination to the City Manager or his/her designee.

10.09 Waste Management Fee. Collector acknowledges that City contemplates adoption of a fee (the “Waste Management Fee”) in order to recover a portion of the costs incurred in implementing the California Integrated Waste Management Act of 1989, pursuant to the authority granted by Section 41901 of the California Public Resources Code. Collector shall cooperate with and assist City in the adoption and implementation of the Waste Management Fee.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

53 ARTICLE 11 BREACHES, DEFAULTS AND REMEDIES

11.01 Minor Breaches and Liquidated Damages. In its
quarterly report submitted to the City, Collector shall certify to City that it has met its Service obligations during such quarter.

If Collector cannot so certify, if its complaint log evidences, or if the City Notifies Collector that it has failed to meet any of its Service obligations and the service failures were not remedied in a satisfactory or reasonable manner and time frame, or are repetitive occurrences, then Collector shall pay liquidated damages in the amount of two hundred-fifty dollars ($250.00) for each of the following breaches:
a. Failure to Correct Missed Service. failure to
correct a missed collection or other Service within twenty-four (24) hours (Sundays and holidays excepted) of telephone or other notice thereof to Collector;
b. Discourtesy. discourteous behavior by Collector’s
employees reported by or complained of by Customers to Collector or City and demonstrated to the satisfaction of the City; c. Damage to Customer’s Property. demonstrated damage
reported by or complained of by Customers to Collector or City with respect to Customer’s landscaping or other property, caused by inattention, carelessness,• or negligence of Collector’s employees in the course of providing Service;
d. Excessive Noise. complaints to Collector or City of
noise in excess of that reasonable and necessary for providing Service, demonstrated to the satisfaction of the City;
e. Collection Outside Permitted Hours. providing
Service outside authorized hours;
f. Failure to Respond to Complaint. failure to respond
to any complaint and correct related breach in Services within twenty-four (24) hours (Sundays and holidays excepted) of telephonic or other notice thereof to Collector;
g. Failure to Log Complaint. failure to log a
complaint in accordance with Article 4;
h. Failure to Submit Complaint Log to City. failure to
submit or make available complaint log to City upon request in accordance with Article 4;

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54 i. Failure to Submit Reports to City. failure to
timely submit complete reports to the City in accordance with Article 7.

The City shall itemize and submit such liquidated damages to the Collector for the inclusion into the next payment by Collector to the City, whether or not Collector has itemized such complaints on its reports submitted. Within ten (10) days of receiving notice of such breaches and damages from City, Collector may contest imposition of such damages by notice to the City, indicating the basis for disagreement. IF COLLECTOR OWES CITY ANY DAMAGES UPON TERMINATION OF THE AGREEMENT BY THE CITY, COLLECTOR’S LIABILITY SHALL SURVIVE THE TERMINATION HEREOF. REPEATED VIOLATIONS MAY CONSTITUTE GROUNDS FOR TERMINATION OF THE AGREEMENT.
j. Failure to Respond to Emergency Services During
Work Hours. failure to respond within the time frame set forth in Section 4.08.f.
k. Failure to Respond to Emergency Services After
Hours. failure to respond within the time frame set forth in Section 4.08.g.
l. Spillage of Litter. failure of Collector to clean
up litter or spillage (including water leakage from vehicles) due to negligence of the Collector within 90 minutes of report of such spillage.
m. Failure to provide Containers for SB 1383
Collection Service. failure to provide Containers for SB 1383 Collection service, including Organic Materials Collection by [month] [date], 2022 to all customers, unless customer has been granted a waiver, as set forth in Exhibit D.
n. Failure to conduct annual outreach and education.
failure to complete annual outreach and education requirements as described in Exhibit D by June 30 of any Agreement Year to City’s satisfaction.
o. Failure to complete annual SB 1383 monitoring
requirements. failure to complete annual SB 1383 monitoring requirements as described in Exhibit D by June 30 of any Agreement Year to City’s satisfaction.
p. Failure to timely complete annual SB 1383 reporting
requirements. failure to complete annual reporting requirements as described in Article 7 by June 30 of any Agreement Year to City’s satisfaction.

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55 q. Commingled Waste. Commingling Solid Waste with
Recyclable Materials and/or Organic Waste in Collection Vehicles that was properly sorted by Customer.
r. Improper Disposal. Disposal of Recyclable Materials
or Organic Materials in the Disposal Facility except as provided in this Agreement.
s. Failure to Label Containers. failure to label
containers in accordance with SB 1383 Regulations.
t. Failure to perform waste studies. failure to
perform route reviews or waste studies/audits.
u. Failure to investigate complaints.
v. Failure to fulfill any other obligation in this
Agreement.

11.02 Defaults.

Each of the following shall constitute an event of default (“Event of Default”) hereunder:
a. Service Defaults:
(1) Missed Collections. Collector fails to make at
least ninety-nine percent (99.0%) of the gross number of scheduled Solid Waste collections or at least ninety-nine percent (99.0%) of Street Sweeping Services in any Contract Year (calculated by lane miles swept divided by total lane miles to be swept pursuant to Exhibit N) or at least ninety-nine percent (99.0%) of Street Sweeping Services required pursuant to Exhibit O or section 4.08.b hereof, subject to exceptions in Article 4.
(2) Breach of Agreement. Collector fails to
perform any of its obligations hereunder (that is not a violation of Applicable Law), the City Notifies Collector that a specific failure or refusal has occurred which will, unless corrected, in its opinion, give the City a right to terminate this Agreement in accordance with this Article, and the Collector does not or correct such breach within twenty (20) days of receiving the City’s Notice thereof. If such breach is not capable of cure within the twenty (20) days, Collector shall promptly provide City Notice explaining why Collector believes it needs additional time to effectuate a cure together with a schedule therefor, and shall diligently proceed to cure the breach within such schedule, whereupon City, in its sole discretion, may accept Collector’s schedule of cure,

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56 make a written demand that Collector cure the default within an alternative time period set by City, or terminate this Agreement at the end of the twenty (20) day period.
(3) Full Service Not Timely Implemented. Collector
fails to implement full Service by the scheduled date in the Transition Plan;
(4) Failure to Comply With Law. Collector fails to
comply with Applicable Law within five (5) days’ notice of violation thereof;
(5) Failure to Deliver Materials to Designated
Facility. Collector fails to deliver Street Sweeping waste to the Upland Public Works Yard, Solid Waste to a Disposal Facility, Green Waste to a Composing Facility, Organic Waste to an Organic Waste Processing Facility, or Recyclables to a Processing Facility, selected in accordance with Article 4.
(6) Criminal Activity. The occurrence of any
conduct prohibited under Article 9;
(7) Failure to Meet the Fifty Percent (50%)
Diversion. Collector fails to meet fifty percent (50%) diversion. b. Performance Assurance Defaults:
(1) Failure to Maintain Performance Bond, etc.

Collector fails to maintain insurance, performance bond or guaranty in accordance with Section 8.03;
(2) Failure to Provide Assurances of Performance.

Collector fails to timely provide assurance of performances in accordance with Article 11;
(3) Failure to Pay Damages. Collector fails to pay
City damages suffered by the City within thirty (30) days following City’s request therefore;
(4) Sale, Transfer, Assignment. Collector sells,
transfer or assigns its stock, assets and/or this Agreement without City approval required by Article 15;
(5) Seizure, Attachment. Any Service Asset is
seized, attached, or levied upon (other than a pre-judgment attachment) so as to substantially impair Collector’s ability to timely and fully perform Services, and which cannot be released,

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57 bonded, or otherwise lifted within forty-eight (48) hours, not counting weekends and holidays;
(6) Insolvency, Bankruptcy, Liquidation.

Collector files a voluntary claim for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent to the appointment of or taking of possession by a receiver, liquidation, assignee (other than as a part of a transfer of Service Assets no longer used to provide Services or backup Services), trustee (other than as security of an obligation under a deed of trust), custodian, sequestrator, or administrator (or similar official) of Collector for any part of Collector’s operating assets or any substantial part of Collector’s property, or shall make any general assignment for the benefit of Collector’s creditors, or shall fail generally to pay Collector’s debts as they become due or shall take any action in furtherance of any of the foregoing.

A court having jurisdiction enters a decree or order for relief in respect of the Agreement, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or Collector consents to or fails to oppose any such proceeding, or any such court enters a decree or order appointing a receiver, liquidation, assignee, custodian, trustee, sequestrator, or administrator (or similar official) of the Collector or for any part of the Collector’s operating equipment or assets, or orders the conclusion or liquidation of the affairs of the Collector.
c. False Representations; Breach of Representations or
Warranties. Collector makes a representation or warranty herein, including Exhibit B, which is untrue as of the date thereof.

Collector makes a representation or fails to make a disclosure, whether within this Agreement or otherwise, to the City in connection with or as a material inducement to entering into this Agreement or any future amendment hereto, which representation or failed disclosure is false or misleading in any material respect when made.

11.03 Breaches and Defaults Excused
a. Performance Excused. Neither Party shall be deemed
in breach or default of its duties, obligations (other than a payment obligation at the time due and owing), responsibilities or commitments hereunder to the extent that such breach or default is due to an Uncontrollable Circumstance, provided such Party exerted

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58 Reasonable Business Efforts to prevent the occurrence and mitigate the effects of such Uncontrollable Circumstance.
b. Notice. The Party experiencing an Uncontrollable
Circumstance and relying thereon shall give immediate Notice thereof to the other Party, including describing performance hereunder for which it seeks to be excused; the expected duration of the Uncontrollable Circumstance; the extent Services may be curtailed; any requests or suggestions to mitigate the adverse effects of such Uncontrollable Circumstance; or any consequent adjustment of the Service Fee in accordance with Article 10. If the Parties cannot agree upon such matters, either Party may seek determination by Arbitration.
c. City’s Rights. Notwithstanding that Collector’s
failure to timely and fully provide Services due to Uncontrollable Circumstances does not constitute an Event of Default, City shall nevertheless retain the right to perform such Services itself in accordance with Article 4, and following the continuance of such failure for thirty (30) days, shall have the option, in its sole discretion, to terminate the Agreement as provided in this Article.

11.04 Remedies Upon Default.

Upon occurrence of an Event of Default, City shall have the following rights:
a. Termination. to terminate this Agreement or any
portion of the Collector’s Service obligations;
b. Suspension. to suspend the Agreement for a period
not to exceed thirty (30) days;
c. City Right to Perform Services. to perform
Collector’s Services using Collector’s equipment;
d. All Other Available Remedies. to exercise its
remedies of damages and any other available remedies at law and in equity (including specific performance); provided, that prior to instituting any court proceeding, the City may request dispute resolution.

Collector acknowledges that City’s remedy of damages for a breach hereof by Collector may be inadequate for reasons including:
(1) the urgency of timely, continuous, and high-quality Solid Waste management service hereunder, including collection,

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59 transportation, and/or transfer for disposal of putrescible wastes which constitute a threat to public health;
(2) the lengthy time period and significant investment of money and personnel (both City staff and private consultants, including engineers, procurement counsel, City peers, and elected City officials) required to request and evaluate qualifications and proposals for alternative service comparable to Service provided hereunder for the price provided hereunder, and to negotiate new agreements therefore;
(3) the City’s reliance on Collector’s technical Solid Waste management expertise;
(4) the City’s reliance on Collector’s established
relationships with owners and/or operators of Processing Facilities, Composting Facilities, Disposal Facilities, and Recyclables brokers and purchasers; and
(5) City’s obligation to repay municipal obligations,
regardless whether it secures Collector’s performance hereunder.

Consequently, City shall be entitled to all available equitable remedies, including injunctive relief.

11.05 Remedies Not Exclusive. Each Party’s rights and
remedies in event of the other Party’s breach and default hereunder are not exclusive. A Party’s exercise of one such remedy, is not an election of remedies but shall be cumulative with any other remedies hereunder.

11.06 Waivers.
a. City Waiver of Breach. City’s waiver of any breach
or Event of Default shall not be deemed to be a waiver of any other breach or Event of Default, including ones with respect to the same obligations hereunder. The City’s decision not to demand liquidated damages shall not be deemed a waiver of any Collector breach hereunder. City’s subsequent acceptance of any damages or other money paid by Collector, including liquidated damages, shall not be deemed to be a waiver by City of any pre-existing or concurrent breach or Event of Default.
b. Collector Waiver of Defenses. Collector
acknowledges that it is solely responsible for providing Services and hereby irrevocably and unconditionally waives defenses to the payment and performance of its obligations hereunder based upon failure of consideration; contract of adhesion; impossibility or

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60 impracticability of performance; commercial frustration of purpose; or the existence, non-existence, occurrence, or non- occurrence of any foreseen or unforeseen fact, event or contingency that may be a basic assumption of Collector with regard to any provision hereof.

11.07 Jurisdiction; Venue. The Parties shall bring any
lawsuits arising out of this Agreement in State of California courts, which shall have exclusive jurisdiction over such lawsuits. The Parties agree that venue is made in and will be performed in courts sitting in the San Bernardino County. Parties further agree that the site of any other hearing or action, whether arbitration or non-judicial, of whatever nature or kind regarding this Agreement, shall be conducted in San Bernardino County.

11.08 Costs. Collector agrees to pay to the City all fees and expenses reasonably incurred by or on behalf of the City while enforcing payment or performance of Collector’s obligations hereunder if such non-payment or non-performance results in an Event of Default by Collector.

11.09 Assurance of Performance. If Collector is the
subject of any labor unrest and appears in the reasonable judgment of City to be unable to regularly pay its bills as they become due; or is the subject of a civil or criminal judgment or order entered by a federal, state, regional, or local agency for violation of an environmental or tax law, and the City Manager believes in good faith that Collector’s ability to timely and fully perform Services has thereby been placed in substantial jeopardy, the City may, at its option and in addition to all other remedies it may have, demand from Collector reasonable assurances of timely and full performance hereunder. If Collector fails to provide such reasonable assurances by the date required by the City, such failure or refusal shall constitute an Event of Default.

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61 ARTICLE 12 SUSPENSION OR TERMINATION.

12.01 City Right to Suspend or Terminate.
a. Termination Events. City shall have the right to
terminate this Agreement in whole, or by directing Collector to cease performing any portion or item of its Services listed in Exhibit D, in part, in the following events:
(1) Collector Default. the occurrence of an Event
or Default;
(2) Uncontrollable Circumstances. the occurrence-
and continuance of an Uncontrollable Circumstance;
(3) Non-Severable Provisions. any clause,
sentence, provision, subsection, Section, or Article hereof or Exhibit hereto ruled invalid by any court of competent jurisdiction but is not severable here from;
b. Suspension Events. City shall have the right to
suspend this Agreement, in whole or in part, upon the occurrence of an Event of Default; provided such suspension is for no longer than thirty (30) days, during which period the Collector shall have the opportunity to demonstrate to the satisfaction of the City that Collector can once again fully perform Services, in which event City’s right to suspend or terminate the Agreement shall cease and Collector may resume its Performance Obligations. c. Notice. City shall give Collector Notice of
termination, which shall be effective one-hundred twenty (120) days thereafter; provided that such termination shall be effective immediately in an Event of Default which endangers public health, welfare, or safety. City shall give Collector Notice of suspension, which shall be effective immediately.
d. Suspension, Termination of a Portion of Performance
Obligations: Reduction in Service Fee. In the event the City suspends a portion of this Agreement or terminates a portion of Collector’s Performance Obligations, Collector shall continue to fully perform its obligations under the remaining portions hereof which are not suspended or terminated, and the Service Fee shall be adjusted to reflect actual reductions in Services rendered to Customers by Collector at rates set forth in Exhibit M.

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62 12.02 Collector’s Obligations Upon Termination
a. Use of Service Assets. Upon effectiveness of Notice
of the City’s Notice of termination, City shall have the right to possess and use Service Assets, which RIGHT SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
b. Pay Outstanding Damages. Collector shall pay City
any damages accrued and payable during the then current Agreement Year or portion thereof which would have otherwise become payable.

COLLECTOR’S LIABILITY FOR SUCH PAYMENTS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
c. Cooperation During Transition. In the event
Collector is not awarded an agreement to continue to provide services following the expiration or earlier termination of this Agreement, Collector shall cooperate fully with City and any subsequent Collector(s) to assure a smooth transition of services described in this Agreement, including transfer of Records (including computer data, files and tapes), complete routing information, route maps, vehicle fleet information, and Customer billing lists; provision of other reports and data required by this Agreement; and coordination with City and any subsequent Collector(s). SUCH OBLIGATIONS OF COLLECTOR SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

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63 ARTICLE 13 DISPUTE RESOLUTION

13.01 Alternative Dispute Resolution. Prior to resorting to arbitration, litigation, or some other dispute resolution procedure, either Party may choose a non-binding determination de novo by a retired judge, including Alternative Resolutions Centers (A.R.C.) and JAMS/End dispute, pursuant to standard alternative dispute resolution procedures.

13.02 Parties’ Obligations During Pendency of Dispute.

During the pendency of any dispute hereunder, the Parties shall perform their respective obligations hereunder.

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64 ARTICLE 14 THE PARTIES.

14.01 Collector Is Independent Contractor. Collector
shall perform Services as an independent contractor engaged by City and not as officer, agent, servant, employee, or partner of City, nor as a joint venturer with City. No employee or agent of Collector shall be deemed to be an employee or agent of City.

Collector shall have the exclusive control over the manner and means of performing Services and over all persons performing Services, except for City’s right to change the scope of Services in accordance with Article 6. Collector shall be solely responsible for the acts and omissions of its officers, employees, collectors, subcontractor, and agents, none of whom shall be deemed to be an officer, agent, servant, or employee of the City. Neither Collector nor its officers, employees, Collectors, subcontractors, and agents shall obtain any rights to retirement benefits, workers compensation benefits, or any other benefits which accrue to City employees, and Collector expressly waives any claim it may have or acquire to such benefits.

14.02 Parties in Interest. Nothing in this Agreement,
whether express or implied, is intended to confer any rights on any Persons other than the Parties and their representatives, successors, and permitted assigns.

14.03 Binding on Successors. The provisions of this
Agreement shall inure to the benefit of and be binding on the successors and permitted assigns of the Parties.

14.04 Further Assurances. Each Party agrees to execute and deliver any instruments and to perform any acts as may be necessary or reasonably requested by the other in order to give full effect to this Agreement.

14.05 Actions of the City in Its Governmental Capacity.

Nothing herein shall be interpreted as limiting the rights and obligations of the City in its governmental or regulatory capacity.

14.06 Collector’s Obligations Performed at Its Sole
Expense. Collector shall perform Services solely for the compensation expressly provided for herein.

14.07 Parties’ Representatives. Except as otherwise
expressly provided in this Agreement, the City Representative shall be authorized to act on behalf of City in the administration of this Agreement.

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65 14.08 Gifts Prohibited. Collector shall not offer any City officer or designated employee any gift.

14.09 Due Diligence. Collector acknowledges that the City may be subject to statutory fines for failure to achieve mandated diversion levels and that waste management is a public health and safety concern. It agrees that it shall exercise due diligence in performing Services hereunder.

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66 ARTICLE 15 ASSIGNMENT AND AMENDMENTS

15.01 Assignment.
a. City Assignment. The City reserves the right to
assign this Agreement to a sanitation district or other public entity succeeding to the major portion of the City’s Solid Waste management rights and obligations.
b. Collector Assignment. Collector acknowledges that
the experience and expertise of Collector are material
considerations of City in entering into this Agreement with Collector. Collector shall not assign any of Collector’s rights nor delegate any of Collector’s duties under this Agreement without the express prior written consent of City. Any such assignment made without the consent of City shall be void. Collector shall submit its request for City consent to the City together with the following documentation and any other documentation the City may request:
(1) assignee’s audited financial statement for the
immediately preceding three (3) operating years; indicating that in the opinion of the Collector the proposed assignee’s financial status is equal to or greater than Collector’s;
(2) satisfactory proof that the proposed assignee
has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by Collector;
(3) satisfactory proof that in the last five (5)
years, the proposed assignee 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 assignee has provided City with a complete list of such citations and censures;
(4) satisfactory proof that the proposed assignee
has at all times conducted its operations in an environmentally safe and conscientious fashion;
(5) satisfactory proof that the proposed assignee
conducts its 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 as identified in Title 22 of the California Code of Regulations;

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67 (6) of any other information required by City to
ensure the proposed assignee can fulfill the terms hereof, including the payment of indemnities and damages and provision of bonds and/or performance guaranties, in a timely, safe, and effective manner.

Collector shall undertake to pay City its reasonable expenses for attorneys’ fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment.
c. “Assign”. For the purpose of this Section,
“assign” includes:
(1) to sell, exchange, or otherwise transfer to a third party any of Collector’s assets dedicated to Solid Waste management services;
(2) issuing new stock or selling, exchanging, or
otherwise transferring thirty percent (30%) or more of the then outstanding common stock of Collector to a Person other than the shareholders owning the stock as of the date hereof.
d. Subcontractor. The use of a subcontractor to
perform services under this Agreement shall not constitute delegation of Collector’s duties provided that Collector has received prior City approval to subcontract such services and the City has approved the subcontractor who will perform such services. Collector shall be responsible for directing the work of Collector’s subcontractor and any compensation due or payable to Collector’s subcontractor shall be the sole responsibility of Collector. City shall have the right to require the removal of any approved subcontractor for reasonable cause.

15.02 Amendments
a. By Agreement. The Parties may change, modify,
supplement or amend this Agreement only upon mutual written agreement duly authorized and executed by both Parties. b. City Manager May Act as Authorized Representative.

Authority to act on behalf of the City is hereby delegated to the City Manager or his or her designee.

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68 ARTICLE 16 NOTICES, CONSENTS, APPROVALS, ETC.

16.01 Notices, etc. All reports, demands, requests,
directions, selections, option exercises, orders, requests, proposals, reviews, comments, acknowledgments, approvals, consents, waivers, certifications and other communications made hereunder shall be in writing, other than computerized reports in accordance with Article 7, and shall either be sent by email or be personally delivered to a representative of the Parties at the address below or deposited in the United States mail, first class postage prepaid (certified mail, return receipt requested) or by commercial delivery service providing delivery verification, addressed as follows:

If to City:

City Manager (or his/her designee)
City of Upland
1370 North Benson Avenue
Upland, CA 91786
Fax: (909) 931-9923
Ph: (909) 931-4100
Email:

If to Collector:

Mr. Cole Burr, President
Burrtec Waste Industries, Inc.
9890 Cherry Avenue
Fontana, CA 92335
Fax: (909) 429-4290
Ph: (909) 429-4200
Email:

Notices may be delivered via email provided that any such email shall be promptly followed by personal or mailed delivery.

Notice by City to Collector of a missed pick-up or a Customer problem or complaint may be given to Collector orally by telephone at Collector’s local office with written confirmation sent to Collector within twenty-four (24) hours of the oral notification.

Parties may change their address or contact information upon Notice to the other Party as provided above.

16.02 Exercise of Options. Except as otherwise provided, the Parties’ exercise of any approval, disapproval, option, discretion, satisfaction, determination, election, or choice hereunder shall be reasonable; unless this Agreement specifically provides otherwise.

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69 ARTICLE 17 EXECUTION OF AGREEMENT

17.01 Execution in Counterparts. This Agreement may be
executed in any number of original counterparts. All such counterparts shall constitute but one and the same Agreement.

17.02 Authority to Execute. The Parties warrant that the undersigned has been duly authorized to execute this Agreement.

IN WITNESS WHEREOF, the PARTIES hereto have executed this Agreement as of the date first above stated.

BURRTEC WASTE INDUSTRIES,
INC.,
a California corporation

By________________________
Cole Burr, President

CITY OF UPLAND,
a California Municipal
Corporation

By:_____________________________
Bill Velto, Mayor

ATTEST:

By:_______________________________
Keri Johnson, City Clerk

APPROVED AS TO FORM:

By:_______________________________
Stephen P. Deitsch, City
Attorney

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT A-1

A

EXHIBIT A

DEFINITIONS“Agreement” means this Agreement, including all exhibits (Exhibits A - M) and attachments, which are
incorporated herein by reference, as this Agreement may be amended and supplemented pursuant to Section 15.02.
“Applicable Law” means all law, statutes, rules, regulations, guidelines, Permits, actions, determinations, orders, or requirements of the United States, State, County of San Bernardino, City, regional or local government authorities, agencies, boards, commissions, courts, or other bodies having applicable
jurisdiction, that from time to time apply to or govern Services 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, the payment of minimum wages and the San Bernardino County Integrated Waste Management Plan. All references herein to Applicable Law include subsequent amendment or modifications thereof, unless otherwise specifically limited.
“Backyard Collection” means the collection of Solid Waste, Recyclables, and Organic Waste from Customers’ backyards where necessary for safety, convenience, access, or where requested by Customer.
“Bin” shall mean a detachable container used in connection with Commercial/Industrial Premises with a capacity equal to or less than six (6) cubic yards that is serviced using a front end loading vehicle.
“Box”, sometimes known as a “roll-off,” “drop” box or “debris” box, means a wheeled or sledded container or compactor, generally 10 to 40 cubic yards in size, that is picked up in its entirety by a dedicated truck.
“Cart” shall mean an industry-standard receptacle for, Solid Waste, Recyclables, or Organic Waste, made of metal, hard rubber or plastic, in a range of sizes of approximately 35, 65 or 95 gallons, with wheels, a handle for ease of movement and a tight- fitting, attached lid, designed to be dumped mechanically into a Collection vehicle.
“Bulky Waste” or “Bulky Goods” means discarded furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water heaters,

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-2

dishwashers, plumbing, small household appliances, and other similar items, commonly known as “white goods”); electronic equipment (including stereos, televisions, computers, VCRs, and other similar items commonly known as “brown goods”); residential wastes (including wood waste, tree branches, scrap wood, debris from building construction, sod, and earth, in the aggregate not exceeding one cubic yard per collection); clothing; and tires. “Change in Law” means the occurrence of any event or change in Applicable Law as follows:
(1) the adoption, promulgation, modification, or change in judicial or administrative interpretation occurring after the date hereof which adoption, promulgation, codification, or change in judicial or administrative interpretation relates to any Applicable Law, other than laws with respect to taxes based on or measured by net income, or any unincorporated business, payroll, or employment taxes; or
(2) any order or judgment of any federal, state or local court, administrative agency or governmental body issued after the date hereof if:
(i) such order or judgment is not also the result of the willful misconduct or negligent action or inaction of the Party relying thereon or of any third party for whom the Party relying thereon is directly responsible; and
(ii) the Party relying thereon, unless excused in writing from so doing by the other Party, shall make or have made, or shall cause or have caused to be made, Reasonable Business Efforts in good faith to contest such order or judgment (it being understood that the contesting in good faith of such an order or judgment shall not constitute or be construed as a willful misconduct or negligent action of such Party); or
(3) the imposition by a governmental authority or agency of:
(i) any new or different material conditions in connection with the issuance, renewal, or modification of any Permit after the date hereof; or
(ii) any Franchise Fee, tax, or assessment with respect to the transfer, processing, or disposal of Solid Waste, Recyclables, or Organic Waste; or
(4) the failure of a governmental authority or agency to issue or renew, or delay in the issuance or renewal of, or the

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-3

suspension, interruption or termination of, any Permit after the date hereof; provided such failure to issue or the suspension or termination of any Permit is not the result of the willful misconduct or negligent action or inaction of the Party relying thereon or any third party for whom the Party relying thereon is directly responsible.
“City” means the City of Upland, California..
“City Representative” means the City Manager or his/her designee.
“City Waste” means Solid Waste Collected from City-designated facilities.
“Collect, Collection” or other form thereof means Solid Waste, Recyclables, and Organic Waste pickups made by Collector as required by and in accordance with the provisions of this Agreement.
“Commercial” refers to premises or Customers within the..

City other than Residential premises or Customers.
“Commercial Service” means Bin or Cart service normally provided under this Agreement to industrial, manufacturing, warehouse, wholesale and retail stores, service establishments, professional offices, other business establishments, government facilities, and schools, and Bin service provided to Multiple- Family Dwellings and Mobile Home Parks.
“Compactor” means a compacting unit that loads a detachable roll-off box. The detachable roll-off box serves as a receptacle for Solid Waste, Recyclables, or Organic Waste having a capacity of greater than eight (8) cubic yards and is picked up in its entirety by a dedicated truck for emptying at a separate location. “Composting Facility” means the Facility for processing Green Waste selected by Collector. The Facility can process the Green Waste as alternative daily cover provided it receives AB 939 diversion credit.
“Construction and Demolition Waste” or “C&D” means any non- putrescible Solid Waste generated as the result of construction or demolition, including without limitation, discarded packaging or containers and waste construction materials, whether brought on site for fabrication or used in construction or resulting from demolition, excluding liquid waste, Hazardous Waste, and Medical and Infectious Waste.

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-4

“Containers” means the carts, cans, bins, roll-offs, plastic bags, or custom containers Collector uses in providing Services hereunder.
“Contract Year” means each fiscal year of the City commencing July 1 and ending June 30.
“Collector” means Burrtec Waste Industries, Inc..
“Collector Representative” means an authorized employee or designated representative of Burrtec Waste Industries, Inc. “Curbside Collection” means the collection of Solid Waste from Customers who place containers within four (4) feet from a road or in an alleyway.
“Customers” means the generators (including owners, tenants, occupants and/or persons having the care or control of any premises within the City) of Solid Waste to which Collector is required to provide Services.
“Debris Box” means a receptacle for Solid Waste, Recyclables, or Organic Waste having a capacity of greater than 10 cubic yards that is picked up in its entirety by a dedicated truck for emptying at a separate location.
“Direct Cost” means costs directly related to the
implementation of this Agreement that include any or all of following:
(1) payroll costs directly related to the performance, or management or supervision of any obligation pursuant to the provisions hereof, comprised of compensation and fringe benefits, including vacation, sick leave, holidays, retirement, Workers’ Compensation Insurance, federal and state unemployment taxes and all medical and health insurance benefits;
(2) the costs of materials, services, direct rental costs and supplies;
(3) travel and subsistence costs;
(4) the reasonable costs of any payments to subcontractors necessary to and in connection with the performance hereunder; and (5) any other cost or expense which is directly or normally associated with the task performed.

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-5

“Disposal Facility” means the Facility or Facilities for disposing of Solid Waste and/or residue from a Processing Facility or Composting Facility, including transfer stations, selected by Collector.
“Disposal Fees” means all tipping fees and transportation costs related to the disposal of solid waste.
“Event of Default” means a service default, performance assurance default, false representations, or breach of
representations or warranties as defined in Article 11. “Food Waste” means food scraps separated from Solid Waste and offered for Collection by the Collector, that will decompose and/or putrefy including (i) all kitchen and table food waste, and animal or vegetable waste that attends or results from the storage, preparation, cooking or handling of food stuffs, and (ii) paper waste contaminated with food waste..
“Green Waste” means organic waste generated from any
landscape, including grass clippings, leaves, prunings, tree trimmings, weeds, branches and brush.
“Hazardous Waste” is a material which by reason of its
quality, concentration, composition or physical, chemical or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious illness or pose a substantial threat or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of or otherwise mismanaged; or any waste which is defined or regulated as a hazardous waste, toxic waste, hazardous chemical substance or mixture, or asbestos under Applicable Law, excluding Household Hazardous Wastes but including:
(1) “Hazardous Waste” pursuant to Section 40141 of the
California Public Resources Code; all substances defined as hazardous waste, acutely hazardous waste, or extremely hazardous waste by Sections 25110.02, 25115, and 25117 of the California Health and Safety Code (the California Hazardous Waste Control Act), California Health and Safety Code Section 25100 et seq., and future amendments to or recodification of such statutes or regulations promulgated thereunder, including California Code of Regulations, title 23, Section 2521;
(2) materials regulated under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended (including, but not limited to, amendments thereto made by the

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-6

Solid Waste Disposal Act Amendments of 1980), and related federal, State and local laws and regulations;
(3) materials regulated under the Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq., as amended, and related federal, State of California, and local laws and regulations, including the California Toxic Substances Account Act, California Health and Safety Code Section 25300 et seq.;
(4) materials regulated under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq., as amended, and regulations promulgated thereunder; and
(5) materials regulated under any future additional or
substitute federal, State or local laws and regulations pertaining to the identification, transportation, treatment, storage or disposal of toxic substances or hazardous waste.

If two or more governmental agencies having concurrent or overlapping jurisdiction over hazardous waste adopt conflicting definitions of “hazardous waste,” for purposes of collection, transportation, processing and/or disposal, the broader, more restrictive definition shall be employed for purposes of this Agreement.
“Household Hazardous Waste” means Hazardous Waste generated in small quantities at Residential premises.
“Holiday” means the following City-designated Holidays:

Christmas Day, New Year’s Day, Memorial Day, Labor Day, Thanksgiving Day, and Independence Day.
“Indirect Costs” means costs related to the implementation of this Agreement that are not Direct Costs.
“Mobilehome” shall have the meaning set forth in California Health and Safety Code Section 18211.
“Mobilehome Park” means a site at which Mobilehome spaces are rented for residential use.
“Multi-Family Residence” shall mean any building or
structure, including but not limited to Mobilehome Parksused for residential purposes having four (4) or more dwelling units. “Non-Collection Notice” means a notice left by Collector for Customers at the times, in the events and in the manner described

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-7

herein, including Waste Not Properly Placed in Containers, Container Not Placed in Proper or Safe Collection Location, and Hazardous Waste or Unsafe Materials, as described in Article 4, which shall contain, at a minimum the date and time it is given, the complete address of the premises, the reason for the non- collection, and the manner in which materials should be prepared for collection, and which shall be printed at Collector’s expense. “Notice” or “Notify” or other variation thereof means notice given in accordance with Article 16.
“Office Hours” are defined in Article 4.
“Organic Waste” means Solid Waste containing material
originated from living organisms and their metabolic waste products, including, but not limited to, Food Waste, Green Waste, landscape and pruning waste, nonhazardous wood waste, and food- soiled paper waste that is mixed in with Food Waste.
“Party” and “Parties” refers to the City and the Collector, individually and together.
“Permits” means all federal, State, City, other local and any other governmental unit permits, orders, licenses, approvals, authorizations, consents and entitlements of whatever kind and however described which are required under Applicable Law to be obtained or maintained by any Person with respect to Services, as renewed or amended from time to time.
“Person” includes any individual, firm, association,
organization, partnership, corporation, trust, joint venture, the United States, the State, a county, a municipality or special purpose district or any other entity whatsoever.
“Phone Hours” are the Collector’s open Office Hours as defined in Article 4.
“Processing Facility” means the facility or facilities for sorting and/or processing commingled or source separated Recyclables, Organic Waste and/or Solid Waste selected by Collector.
“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; provided that such Person and/or any enterprise by which such

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-8

Person is employed would not incur a financial loss (other than time expended or unless otherwise compensated for such efforts herein) by reason of having expended or expending such efforts. “Records” are ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for Services, the Service Fee, or performance hereunder, including routing, level of each Customer’s services, inventory, maintenance logs, etc.
“Recyclables” means material that can be separated from waste for the purpose of reusing or returning these materials in the form of raw materials for new, used or reconstituted products that meet the quality standard necessary to be used in the marketplace, or for composting. “Recyclables” includes, 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, food containers, small scrap metal; milk and juice cartons and jugs; steel or tin cans; small scrap metal including metal coat hangers; plastic jugs, bottles, and containers including resins #1 through #7; used motor oil and oil filters; and any other materials mutually agreed to by the Collector and the City.
“Recycling” means the process of collecting, sorting,
cleansing, treating, and reconstituting materials, and returning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace.
“Recycling” does not include transformation as defined in Public Resources Code Section 40201.
“Resident-Requested Collection” means the collection of Bulky Waste at the curbside or alleyway on request from residential Customers.
“Residential” refers to: (i) any building or structure, or portion thereof, that is used for residential housing purposes and has four (4) or fewer distinct living units; and (ii) any multiple unit residential complex which, with the prior written approval of the City Manager, receives Solid Waste, Organic Waste, and

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-9

Recyclables Collection services using Standard Residential Solid Waste, Organic Waste, and Recycling Containers.
“Roll-Off Container” means a metal container with a capacity of twenty (20) or more cubic yards that is normally loaded onto a motor vehicle and transported to an appropriate facility. “Service Assets” means all property of Collector used
directly or indirectly in performing Services, including Vehicles, Containers, maintenance equipment and facilities, administrative equipment and offices and related supplies.
“Service Fee” is defined in Section 10.01, as adjusted, escalated or offset.
“Services” means all obligations of Collector hereunder to City and Customers.
“Solid Waste” has the same meaning as defined in Public Resources Code section 40191, which defines Solid Waste as all putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, C&D, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes, with the exception that Solid Waste does not include any of the following wastes:
(1) Hazardous waste, as defined in PRC Section 40141.
(2) Radioactive waste regulated pursuant to the Radiation Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the Health and Safety Code).
(3) Medical waste regulated pursuant to the Medical Waste Management Act (Part 14, commencing with Section 117600, of Division 104 of the Health and Safety Code). Untreated medical waste shall not be disposed of in a Solid Waste Landfill, as defined in PRC Section 40195.1. Medical waste that has been treated and deemed to be Solid Waste shall be regulated pursuant to PRC, Division 30.
“Special Wastes” include flammable waste; waste transported in a bulk tanker; liquid waste; sewage sludge; pollution control process waste; residue and debris from the cleanup of a spill or release of chemical substances or any other Special Wastes; contaminated soil, waste, residue, debris and articles from the

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-10

cleanup of a site or facility formerly used for the generation, storage, treatment, Recycling, reclamation, or Disposal of any other Special Wastes; dead animals; wastewater; explosive substances; radioactive substances; industrial appliances; and abandoned vehicles and parts thereof.
“State” means the State of California.
“Substantial Evidence” means such evidence as would convince a reasonable person and on which reasonable persons may not reasonably differ as to the conclusion to be drawn from such evidence.
“Term” of this Agreement is defined in Article 3.
“Tipping Fee” means the fee charged by a Disposal, Composting, or Processing Facility to dispose or process of municipal Solid Waste, Organic Waste, or Recyclables, not including any charges for Special Wastes or Bulky Waste.
“Ton (or Tonnage)” means a short ton of 2,000 pounds.
“Uncontrollable Circumstance(s)” means any act, event or condition, whether affecting Services or either Party beyond the reasonable control of such Party and not the result of willful or negligent action or inaction of such Party, which materially and adversely affects the ability of either Party to perform any obligation hereunder, including:
(1) an act of God, landslide, lightning, earthquake, fire, flood (other than reasonably anticipated weather conditions for the geographic area of the City), explosion, sabotage, acts of a public enemy, war, blockade or insurrection, riot or civil disturbance;
(2) the failure of any appropriate federal, State, City, or local public agency or private utility having operational jurisdiction in the area , to provide and maintain utilities, services, water, sewer or power transmission lines thereto; and (3) strikes, work stoppages or other labor disputes or
disturbances of any Person performing Services;
“Used Oil” means any oil that has been refined from crude oil, or has been synthetically produced, and

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT A-11

(1) is no longer useful to the Customer because of extended storage, spillage or contamination with non-hazardous impurities such as dirt or water; or
(2) has been synthetically produced, and has been used and as a result of such use has been contaminated with physical or chemical impurities.
“Used Oil Container” means a container provided by Collector for the accumulation of Used Oil that is at least four (4) quarts in capacity, leak-proof, has a screw-on lid, and has a label designating it for use as a Used Oil Container.
“Used Oil Filter” means any oil filter that is no longer useful to the Customer because of extended storage, spillage, or contamination with non-hazardous impurities such as dirt or water; or has been used and as a result of such use has been contaminated with physical or chemical impurities. Used Oil Filters must be generated by and at the Customer location wherein the Used Oil Filter is collected.
“Used Oil Filter Container” means a six (6) mil poly bag with a double track seal with dimensions of at least 14.5 inches by 8 inches with a 1 1/4 inch diameter hold above the seal provided by the Collector for accumulation of Used Oil Filters that has a label designating it for use as a Used Oil Filter Container.
“‘Vehicles” means all trucks (including trucks providing Residential Collection Service of Solid Waste, Recyclables, Organic Waste, Bulky Waste and litter pickup; field supervisors’ and administrator’s vehicles), rolling stock and other vehicles used to provide Services (including Collection as well as repair and maintenance), whether owned or leased by Collector. “Waste Management Fee” means any fee adopted by City pursuant to the authority granted by Section 41901 of the California Public Resources Code.

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT B-1

B

EXHIBIT B

COLLECTOR’S REPRESENTATIONS AND WARRANTIES
a. Status. Collector is a corporation duly organized,
validly existing and in good standing under the laws of the State of California and is qualified to do business in the State of California.
b. Authority and Authorization. The Collector has full
legal right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. This Agreement has been duly executed and delivered by the Collector and constitutes a legal, valid and binding obligation of the Collector enforceable against the Collector in accordance with its terms. c. Statements and Information in Proposal. Collector’s
Response to the City’s Negotiation Packet for Solid Waste, Recycling and Organic Waste Collection, Disposal and Recycling Services; Proposal in response to the City’s Negotiation Packet, on which City has relied upon in entering into this Agreement, are correct and complete in all material respects at the time originally submitted to the City.
d. No conflicts. Neither the execution or delivery by the Collector of this Agreement, the performance by the Collector of its Performance Obligations, nor the fulfillment by the Collector of the terms and conditions hereof: (1) conflicts with, violates or results in a breach of any Applicable Law; (2) conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency or other governmental authority, or any agreement or instrument to which the Collector is a party or by which the Collector or any of its properties or assets are bound, or constitutes a default thereunder; or (3) will result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Collector.
e. No approvals required. No approval, authorization,
license, permit, order or consent of, or declaration, registration or filing with any governmental or administrative authority, commission, board, agency or instrumentality is required for the valid execution and delivery of this Agreement by the Collector, except such as have been duly obtained from its Board.
f. No litigation. There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT B-2

governmental authority, commission, board, agency or
instrumentality pending or, to the best of the Collector’s knowledge, threatened, against the Collector wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by the Collector of its obligations hereunder or in connection with the transactions contemplated hereby, or which, in any way, would adversely affect the validity or enforceability of this Agreement or any other agreement or instrument entered into by the Collector in connection with the transactions contemplated hereby. g. Due Diligence. Collector has made an independent
investigation satisfactory to it of the conditions and
circumstances surrounding the Agreement and Services it is required to perform.

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT C-1

C

EXHIBIT C

CITY’S REPRESENTATIONS AND WARRANTIES
a. Status. The City is a municipal corporation of the State of California, duly organized and validly existing under the Constitution and laws of the State of California.
b. Authority and Authorization. The City has full legal right, power and authority to execute, deliver, and perform its obligations hereunder. This Agreement has been duly executed and delivered by the City and constitutes a legal, valid and binding obligation of the City enforceable against the City in accordance with its terms.
c. No conflicts. Neither the execution nor delivery by the City of this Agreement, the performance by the City of its obligations hereunder, nor the fulfillment by the City of the terms and conditions hereof: (1) conflicts with, violates or results in a breach of Applicable Law; or (2) conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency or other governmental authority, or any agreement or instrument to which the City is a party or by which the City or any of its properties or assets are bound, or constitutes a default thereunder.
d. No approvals. No approval, authorization, license,
permit, order or consent of, or declaration, registration or filing with any governmental or administrative authority, commission, board, agency or instrumentality is required for the valid execution and delivery of this Agreement by the City, except such as have been duly obtained from the City Council.
e. No Litigation. There is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or
instrumentality pending or, to the best of the City’s knowledge, threatened, against the City wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by the City of its obligations hereunder or in connection with the transactions contemplated hereby, or which, in any way, would adversely affect the validity or enforceability of this Agreement or any other agreement or instrument entered into by the City in connection with the transactions contemplated hereby.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT C-2

f. No Warranty Regarding Waste Characterization. City makes no warranties with respect to the waste characterization data or any waste disposal characterization study or projections by material type distributed to Collector together therewith. The City expressly disclaims any warranties, either express or implied, as to the merchantability or fitness for any particular purpose of Solid Waste, Organic Waste, or Recyclables collected by Collector.

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT D-1

D

EXHIBIT D

SCOPE OF REGULAR COLLECTION SERVICES
Residential Collection Service
Collector shall provide for collection of Solid Waste,
Recyclables, and Organic Waste from residential customers.

Collector shall provide collection services using not more than three vehicle passes. Collector may provide collection services five (5) days per week, Monday through Friday. Charges for collection services shall be in accordance with Exhibit M.

1. Residential Solid Waste Collection. Collector shall
Collect Residential Solid Waste once per week, in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Residential Solid Waste to the Disposal Facility or Facilities in accordance with Article 4. Cart service shall be provided to all single-family residences and to multiple- family dwellings and mobilehome parks at the property Owner’s request. Collector shall collect Residential Solid Waste in Containers provided by the Collector. The City requires provision of industry-standard wheeled Carts for Solid Waste with securable, attached lids. The standard service will include Collection at the curb, and should be provided using automated collection vehicles.

The Collector will provide backyard service in accordance with Article 4.

2. Residential Recyclables Collection. Collector shall
Collect Residential Recyclables once per week comprised at a minimum of those listed in the definition “Recyclables” in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Residential Recyclables to the Processing Facility or Facilities in accordance with Article

4. Collector shall collect Residential Recyclables in Containers provided by the Collector. Default container capacity for Residential Recyclables service shall be 60-70 gallons. The Residential Recyclables shall be collected using automated collection vehicles in a single-stream, fully comingled system.

3. Curbside Pick-Up of Used Oil and Used Oil Filters.

Collector shall include curbside pick-up of Used Oil and Used Oil Filters as part of its Recyclables Collection Service. For each Residential Customer, this Service shall be provided on a scheduled route basis on the same day and during the same hours as the Customer’s scheduled Solid Waste, Organic Waste, and Recycling

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT D-2

Collection Service. Collector shall provide Backyard Collection Service for Used Oil and Used Oil Filters in accordance with the provisions of Article 4.

Upon Customer request, Collector shall provide the Customer with Used Oil Containers and Used Oil Filter Containers in the number requested by the Customer sufficient to hold sixteen (16) quarts of Used Oil and two (2) Used Oil Filters. Collector shall keep the outside of all Used Oil and Used Oil Filter Containers clean and may re-use the Containers until the condition of the Container makes it inappropriate for re-use.

Collector shall at all times keep all Used Oil and Used Oil Filters Collected pursuant to this Agreement segregated from other materials. Collector shall recycle all Used Oil Collected pursuant to this Agreement to the extent feasible and shall properly dispose of all Used Oil and Used Oil Filters that are contaminated or otherwise cannot be recycled.

Collector shall provide Used Oil and Used Oil Filter
Collection Service to all Residential Customers utilizing Used Oil Containers for the accumulation and set out of their Used Oil, and Used Oil Filter Containers for the accumulation and set out of their Used Oil Filters where the Used Oil Containers and Used Oil Filter Containers have been placed within three (3) feet of the curb, swale, paved surface of the roadway, closest accessible roadway, or other such location agreed to by the Collector and Residential Customer, that will provide safe and efficient accessibility to the Collector’s Collection crew and vehicle.

4. Residential Organic Waste Collection. Collector shall Collect Residential Organic Waste once per week in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Residential Organic Waste to the Composting Facility or Organic Waste Facility in accordance with Article 4. Collector shall collect Organic Waste in the Containers provided by Collector. Default container capacity for Organic Waste Service shall be 90-100 gallons. Additional Organic Waste collection set out for collection will be collected at no charge to the Residential Customers at the same time as the regularly scheduled collection for Organic Waste Collection.

Commercial Service
Collector shall provide for collection of Solid Waste,
Recyclables and Organic Waste from Commercial Customers. Collector may provide collection services six (6) days per week, Monday

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT D-3

through Saturday. Charges for collection services shall be in accordance with Exhibit M.

1. Commercial Solid Waste Collection. The Collector will provide collection of Commercial Solid Waste on a regularly scheduled basis at a frequency specified by the Customer in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Commercial Solid Waste to the Processing Facility or Facilities in accordance with Article

4. The Collector will offer the following types of collection containers as options to its Customers: industry-standard wheeled Carts (up to 100-gallon capacity) and industry-standard Bins of various sizes. . The Collector may offer wheeled Carts providing 32 to 100 gallons of capacity. The Collector may offer bins ranging from 1 to 6 cubic yards of capacity.

2. Commercial Recyclables Collection. Collector shall
Collect Commercial Recyclables once per week comprised at a minimum of those listed in the definition “Recyclables” in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Commercial Recyclables to the Processing Facility or Facilities in accordance with Article 4. Collector shall collect Commercial Recyclables in containers provided by the Collector.

3. Commercial Organic Waste Collection. Collector shall Collect Commercial Organic Waste once per week comprised at a minimum of those listed in the definition “Organic Waste” in accordance with the provisions of this Agreement unless excepted as provided in Article 4, and transport Commercial Organic Waste to the Composting Facility or Organic Waste Facility in accordance with Article 4. Collector shall collect Commercial Recyclables in containers provided by the Collector. Collector shall commence such Services no later than the date or dates provided in its Transition Plan attached as Exhibit E.

Commingling Solid Waste
In the event a Customer commingles Refuse, Organic Waste, or Green Waste with Recyclables for Recyclable collection or commingles Refuse or Recyclables with Green Waste or Organic Waste for Green Waste or Organic Waste collection, Collector may treat such collection as a Refuse collection subject to the applicable Refuse Collection Rates.

Collector shall not commingle, in the vehicles or otherwise, any Refuse with any Recyclable Materials, Organic Waste or Green

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT D-4

Waste, or any Refuse, Recyclable Materials, Organic Waste or Green Waste with each other when collected by Collector, unless otherwise specifically authorized in writing by CITY. Collector shall not be deemed to have violated this Section where such materials were commingled prior to collection by Collector.

Waivers
Collector shall assist the CITY in the initial review of waiver applications under 14 CCR Section 18984.11. Collector shall be responsible for the distribution, collection and evaluation of waiver applications as appropriate and provide the City a recommendation to accept or reject waiver requests. Collector shall provide Collection services for customers not subject to waiver.

City Facilities
Collector shall provide for collection of Solid Waste,
Organic Waste, and Recyclables from selected City facilities and properties according to a mutually agreed upon schedule. Charges for collection services shall be in accordance with Exhibit M.

1. City Solid Waste, Organic Waste and Recycling
Collection. The Collector will provide collection of Solid Waste, Organic Waste and Recycling Collection to the following City facilities and properties: Police Station, Fire Station, City Hall, Library, Public Works Yard, Carnegie Building, all parks and ball fields, City-owned trash receptacles at bus stops, trash Containers in Euclid median. Collector will also collect City street sweepings from City-designated collection points.

2. City Roll-Off Service. The Collector shall provide a minimum of six (6) forty (40) cubic yard Roll-Off bins to the City upon City Manager’s request, per Agreement year. The City shall notify Collector in writing not less than thirty (30) calendar days prior to the date of the service. The notice to the Collector shall specify the date of delivery and collection of the Roll-Off Containers, the locations(s) for delivery, and the number of the Roll-Off Containers to be delivered.

Special Services
Collector shall supply the special Collection Services as provided in Article 4, including Bulky Waste Collection, On- Premise Collection Service, Christmas Tree Collection, Alley Service, collection at Community Events, collection for clean-up

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT D-5

programs, free Commercial Waste Audits, and free mulch to City upon City request.

SB 1383 Monitoring and Inspections
Collector shall perform route reviews, compliance reviews, and inspections and reviews in accordance with 14 CCR Section 18995.1.

When compliance reviews are performed by Collector, Collector shall provide City-approved educational materials, in response to violations. Collector shall provide these educational materials to the non-compliant Customers within two (2) working days of determination of non-compliance or immediately upon determination of non-compliance if such non-compliance is determined during an inspection or route review. Collector shall document the non- compliant Customers and the date and type of education materials provided and report such information to the City. The City shall be responsible for subsequent enforcement action against the Customer.

Collector shall maintain a computer database of all oral and written SB 1383-related non-compliance incidents reported to Collector from Customers or other persons, and documentation related to route reviews, compliance reviews, inspections, and enforcement.

Edible Food Recovery
Collector will provide information or documentation requested by the City in support of Organic Waste or Edible Food Recovery Capacity Planning studies. Contractor shall report to the City Commercial Edible Food Generators that fail to comply with 14 CCR § 18991.1 - 18991.5.

Recordkeeping and Reporting
Collector shall prepare and maintain the records identified in 14 CCR Section 18995.2(f) and assist CITY in reporting information about implementation and compliance with SB 1383 Regulations and in accordance with Article 13 of Chapter 12 of Title 14 of the CCR.

Billing
Collector shall supply billing services in accordance with Article 10.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT D-6

Customer Service and Public Relations
Collector shall supply phone access and handle complaints and inquiries in accordance with Article 4.

Public Education and Outreach
Collector shall supply these services in accordance with Article 4 and its plan attached as Exhibit H.

Emergency Services
Collector shall provide emergency services in accordance with Article 4.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT E-1

E

EXHIBIT E

RESERVED

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT F-1

F

EXHIBIT F

MAINTENANCE PROTOCOL
Vehicle Maintenance
Burrtec’s vehicle maintenance facilities will provide
complete maintenance and repair for all collection and service equipment. Preventative service schedules will include the following: (1) daily inspection by drivers and vehicle maintenance personnel for the purposes of checking fluid levels, lights, brake adjustments and general repair; (2) every 100 hours of operations lube chassis and visual body and chassis inspection; (3) every 300 hours of operation lube chassis, visual body and chassis inspection, change engine oil and filter; (4) every day inspection, lubrication and adjustment (if needed) of mechanical arms on all automated vehicles; (5) every week brake inspection and adjustment; and (6) every 365 days service rear differential.

A Vehicle Maintenance Report will be generated upon request from the City. This report shows the maintenance activity for each vehicle operating in the City of Upland.

Our attention to preventative maintenance and attention to timely, quality repairs allows us to extend the useful life of our vehicles to over ten years.

Burrtec will use a mobile repair vehicle for basic repairs in the field. In the event of a vehicle breakdown while on route, the mobile repair unit is dispatched. A diagnosis will be made by the mechanic whether a repair can be addressed immediately, or if the truck should return to the base. In either case, the other collection vehicles will be made aware of the situation and notified whether a replacement truck will be sent to finish the route or if other trucks will be needed to work together to finish the uncompleted route. The decision will be made by the operations supervisor and is based on the time of day and the general workload for that day’s routes.

Container Maintenance Program
All automated containers will be repaired and/or replaced on request. The request may be generated from the route driver, the customer or City staff. Once the repair or replacement order is received, all containers will be delivered within 24 hours. The defective or missing container will be exchanged for a new or

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT F-2

reconditioned container. Containers are repaired and replaced whenever necessary.

Bins will be exchanged on an as-needed basis or once every 12 months, whichever comes first. An exchange request may be generated from the route driver or the customer. Bins will be exchanged within 24 hours of the received request. Bins and containers are exchanged or replaced for a variety of reasons, including:
defective or damaged components, graffiti, odor or the unit is missing all together.

All automated containers and bins will be maintained at the local facilities yard. Maintenance procedures include: (1) steam cleaning; (2) welding; (3) painting; (4) component replacement; (5) lubrication; and, (6) signage.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT G-1

G

EXHIBIT G

COLLECTOR BILLING PROCEDURE AND POLICYError! Bookmark not defined.

Residential customers will receive bi-monthly billing in arrears for the previous two-month period of service. Commercial customers will receive monthly billing in arrears for the previous month. The invoices will include the local telephone number of the Burrtec office for any questions. Any informational notices, fliers or inserts are submitted to the ACS company by 10:00AM on the day billing is requested to process. This procedure enables Burrtec and/or the City to include up to date information in the billing packet.

Examples of the residential and commercial past due programs are attached. City of Upland programs are subject to revision by the City and may change during the course of the Agreement and may vary based upon type of services. Burrtec will maintain an approved Past Due and Stop Service Program for reference by both parties.

EXAMPLE

RESIDENTIAL ACCOUNT PAST DUE PROGRAM
CURRENT BILL (trash service Aug-Sep)
A message will appear on the customer’s bill.

Payment is due upon receipt. Service is subject to
interruption if payment is not received by the 1st of (the second month of the billing cycle).

If the past due amount is less than or equal to $20 and payment/arrangements have not been received by the lst of the month, the Customer Service Department is to STOP SERVICE the account.

On approximately the llth of the second month in the billing cycle a postcard is sent stating service has been interrupted.

CURRENT + PAST DUE BILL
The following message will appear on the customer’s bill if the 30 day past due amount is > $20.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

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Your account is past due and service has been stopped. If payment in full is not received immediately your account will be turned over to our collection department.

Prior to the next billing:

1. Audit Customers on HOLD. If payment arrangements have not been made, place the account on a HOLD/CANCEL status.

2. Remove any company-supplied barrel/container.

FINAL BILL
This is a final bill. A message will appear on the customer’s bill.

Payment must be made immediately! Protect your credit rating! A past due notice will be inserted with this bill.

Since you have not paid your past due account after receiving repeated notices, we will be forced to submit your account to our collection agency unless the account is paid in full within 5 days from the date of this billing. Please remit the amount due immediately in order to protect your credit rating.

By the 25th of the month, if no payment arrangements have been made the account must now be assigned to an outside collection agency.

EXAMPLE

COMMERCIAL ACCOUNT PAST DUE PROGRAM

CURRENT BILL
A message will appear on the customer’s bill.

Payment is due upon receipt. Payment considered past due by the 5th.
30 DAY BILL
The following message will appear on the customer’s bill if the 30 day past due amount is > $30.

In order to avoid an interruption in service, payment must be received on or before the 10th of this month.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT G-3

On the 11th of the month, if a payment has not been received, a post card is mailed out-automatically by ACS.

Please be advised that your Solid Waste service bill is past due and your service will be subject to interruption. In order to avoid an interruption in your service, the past due balance of (TOTAL AMOUNT OWING) must be received on or before the 20th of this month. If payment arrangements need to be made, please contact our customer service department at (XXX) XXX-XXXX.

If payment/arrangements have not been received by the 20th of the month, the Customer Service Department is to STOP SERVICE the account. Repetitive billing will continue.
60 DAY BILL
A past due message will appear on the customer’s bill.

Your account is past due and service has been stopped. If payment in full is not received immediately, the bin will be removed as of the 25th of this month and your account will be turned over to our collection department.

On the 10th of the month, if a payment has not ‘been received, a dunning letter is mailed out automatically by ACS.

Your service has been stopped due to the PAST DUE status of your account in the amount of $_______. Prompt full payment will clear your account and allow us to resume your Solid Waste service.

Prior to the 25th of the month, if the account is still 60 days past due, a customer service representative will call the customer to negotiate one last time in order to save the account.

If not payment arrangements have been made with the customer, the bin will be removed, the account status will remain on HOLD, a cancellation date will be entered using TWO WEEKS after the hold date as a guideline and the billing will automatically stop. 90 DAY BILL
This is a final bill. A message will appear on the customer’s bill.

Payment must be made immediately!
A 90 day notice will be inserted with this bill.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT G-4

Since you have not paid your past due account after receiving repeated notices, we will be forced to take legal action against you unless the account is paid in full within 5 days from the date of this billing. Please remit the amount due immediately in order to protect your credit rating.

The account will be assigned for legal collection to small claims court if the amount exceeds $500.00 or to an outside collection agency if the amount is under $500.00.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT H-1

H

EXHIBIT H

COMMUNITY RELATIONS ACTIVITIESError! Bookmark not defined.

Public Education Plan Objectives
The objectives of the public education program are the
following:
• To maximize diversion and recycling and organic waste tonnage by making the recycling and organic waste diversion program easily understood by residents.
• To educate the community via community meetings, Home Owners Assocations (HOAs), and other civic organizations on the details of the program and services offered as well as source reduction and buying recycled content products.
• To convey strong anti-scavenging messages to protect the value of the resources to be collected at the curb.
• To encourage maximum citizen participation and assure that City residents are notified as to their day(s) of collection and type of services offered.

Collector shall use Reasonable Business Efforts to outreach and educate the public on the importance of recycling and separating Solid Waste in order to achieve maximum waste diversion in accordance with 14 CCR Sections 18985.1-18985.2. Collector shall develop and implement a program of educational presentations and materials concerning the importance of recycling and diversion, proper techniques for Solid Waste disposal and recycling, and options for the disposal of Hazardous Waste. The educational program shall include a well-defined component aimed at capturing Organic Waste, and Green Waste generated by landscaping services and contractors, including information for Customers on how and why Organic Waste and Green Waste should be collected and diverted. All community relations and promotional materials and related news releases shall be developed at Collector’s sole cost and expense. A new educational program shall be prepared for each fiscal year, and submitted to the City Manager, for approval by the City Council, no later than April 1st. Collector shall perform the recordkeeping requirements related to compliance with education and outreach requirements under 14 CCR Section 18985.3.

Required Plan Components

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT H-2

The Collector shall coordinate with City Staff for a refined, well-thought out public education plan that must do the following:
• Concentrate on how the new expanded recycling program complements the existing program.
• Compliment residents on a fine job so far on reaching the goals of AB 939, but to reach higher diversion goals, we must implement this new program.
• Communicate that the new expanded program is the next step for residents.
• Utilize City’s existing program recognition techniques in all new correspondence.
• Coordinate the education programs with all local service clubs, neighborhood watch groups, HOAs, City Commissions, and City Committees.
• Maintain communication in English, Spanish, and such
other languages as the city may direct.

Public Education Materials
Collector must distribute the following to all Residential Customers:
(1) Quarterly Billing Information: two (2) of the four (4) billing cycles for Residential Customers will include bill inserts prepared and provided by the City and two (2) billing cycles will include educational information prepared and provided by the City to appear on the bill itself.
(2) Quarterly newsletter prepared and provided by the
Collector summarizing the past and upcoming year’s program, events, and successes.
(3) Brochure prepared by the Collector and reviewed by the City describing the new SB 1383 organic waste diversion program, including service frequency and program changes. The brochure shall also include information about the edible food recovery program.
(4) Fliers prepared and provided by the City will be used on an “as needed basis” if Collector’s Diversion Estimates are not met or to further educate residents, reinforce recycling program, or to communicate minor changes or modifications in the program.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT H-3

Collector must provide the following to Commercial Customers:
(1) Advertisements publicizing Collector’s provision of free waste audits for Customers’ serviced facilities.

Participation in City, School, or Community Events
Collector must participate in City, School, or Community Events as follows:
(1) Provide display materials for use at City-sponsored events and school presentations.
(2) Provide promotional items for distribution at community events.
(3) Annual participation in an educational capacity at
school assemblies, HOAs, and other civic organizations. (4) Participation in an educational capacity at minimum of two (2) community events annually.

Organic Waste Collection Start Up Campaign
To support the Recycling and Organic Waste Collection
programs that Collector is offering, Collector shall organize an official kick-off for the Organic Waste programs and provide residents and businesses with a brochure describing the new programs. Collector will work with City staff to develop the information to be provided and will distribute the materials three (3) to four (4) weeks prior to the start-up of services.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT I-1

I

EXHIBIT I

HAZARDOUS WASTE SCREENING PROTOCOL
Hazardous materials inadvertently collected along with Solid Waste is a persistent problem facing our industry. Drivers are trained to avoid accidental collection of hazardous materials; and, whenever possible, front or side loading vehicles are used to allow drivers to easily spot hazardous materials. If hazardous waste is found in the container; or if recyclables or organic waste are contaminated with Solid Waste, the customer is notified in writing with a, tag attached to the Container. Burrtec drivers and Route Supervisors conduct routine waste audits and carefully inspect containers before they are serviced. If contamination is found, written notification is attached to the container.

Burrtec’s written notification system has been in place for many years and it is viewed as an education process for the customer and a safety measure for the both driver and the City.

Burrtec has successfully implemented the following system to address this problem:

1. Continual education and identification to the customers regarding the dangers of improperly disposed of hazardous materials and locations where this material can be taken for proper management.

2. Tags to be filled out and attached to a customer’s container indicating what hazardous materials have been identified in the container and proper disposal methods.

3. Driver training on the identification of hazardous materials that have been combined with Solid Waste.

In the even hazardous materials do appear in the waste stream, Burrtec has established the following procedures:

1. Collectors receive safety training regarding hazardous waste identification, inadvertent contact and notification procedures.

2. Once a suspected hazardous waste situation is identified by the Collector, the local supervisor is contacted to isolate the area or load.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT I-2

3. The local Department of Environmental Health is contacted and steps are taken to properly clean-up and dispose of the material.

4. Investigative efforts are made to establish the source of the material and the individual(s) involved.

Additionally, all Solid Waste, recyclables, and organic waste collected in the City of Upland will be delivered to the West Valley Materials Recovery Facility (MRF). The West Valley MRF has a hazardous waste inspection and load-checking program to eliminate accidental disposal of hazardous waste from the City of Upland in the landfill. Commercial waste will be processed for recyclables and organic waste recovery, a process that includes another inspection level for unacceptable waste. The West Valley MRF will work closely with the hauling operation to identify loads and specific accounts that might become problem generators. This identification will lead to monitoring and inspection at the source.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT J-1

J

EXHIBIT J

MONTHLY AND QUARTERLY REPORTSError! Bookmark not defined.

Collector shall work in cooperation with the City to develop a report acceptable to both parties. Collector shall include, at a minimum, the following information in the monthly and quarterly report, which shall clearly indicate the report period:

1. Collection, Disposal, and Processing. Number of tons of residential Solid Waste, Recyclables and Organic Waste
collected and delivered to the Disposal Facility and or Processing Facility.

2. Recyclables Tonnages and Revenue. The report shall specify the number of tons of Recyclables and Organic Waste collected for each type of material and the revenue received by the Collector.

3. Bulky Waste Collection. The report shall specify the number of Bulky Waste collections and the type and tonnage of
material collected.

4. Complaint Log. A copy of Collector’s complaint log, including missed pickups and a description of how each complaint was resolved.

5. Problems Encountered. A narrative account of problems encountered during the reporting period. This should include a brief discussion of the Recyclables and Organic Waste Collection programs’ impact on and interaction with Solid Waste Collection Services.

6. Disposal Costs. Disposal costs in dollars per ton and total dollars.

7. Public Education. Public Education report that summaries the diversion programs, any changes, upcoming events, or program changes.

8. Customer Account Information. The report shall specify the number and type of Customer Accounts, the number of pre-paid Customers, the number of active and non-active Customers, and the type and number of delinquent Customer Accounts.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. For Solid Waste Collection, Processing and Disposal Services

EXHIBIT K-1

K

EXHIBIT K

ANNUAL REPORTS
Collector shall work in cooperation with the City to develop a report acceptable to both parties. Collector shall include, at a minimum, the following information:

1. A collated summary of the information contained in the quarterly reports, including reconciliation of any adjustments from prior quarterly reports.

2. A discussion of public awareness activities and their impact on recycling participation and recovered amounts. The discussion shall include the type of emphasis given to areas with a high concentration of non-English speaking Customers.

3. A discussion of highlights and other noteworthy
experiences, including summary of Commercial Customer waste audit requests and results, along with measures taken to resolve problems, increase efficiency, and increase participation.

4. A complete inventory of collection and other major
equipment, in accordance with Article 4.

5. No later than ninety (90) days following the end of
Collector’s fiscal year of each Agreement year, Collector shall cause to be prepared a statement of Collector’s Parent Company’s income and expenses in connection with this Agreement for the immediately preceding fiscal year. Such statement shall be prepared by a Certified Public Accountant (CPA) and shall be accompanied by a certification from the CPA that the calculation of the income and expenses is fairly presented in accordance with Generally Accepted Accounting Principles and in accordance with the terms of this Agreement.

6. Collector’s obligation to submit an annual report shall survive the termination or expiration of this Agreement and Agreement shall submit an annual report for the final Contract Year of this Agreement on or before the May 1 immediately following such Agreement Year.

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L

EXHIBIT L

FORM OF PARENT GUARANTY
This Guaranty, made as of the date of the Agreement (as defined below) Burrtec Waste Group, Inc., a corporation duly organized and existing in good standing under the laws of the State of California and having their principal place of business in California, respectively (“Guarantor”), to and for the benefit of the City of Upland (“City”), a municipal corporation of the State of California (“State”).

WITNESSETH
WHEREAS, Burrtec Waste Industries, Inc. (“Collector”), a subsidiary of the Guarantor, and the City have negotiated an Agreement for Solid Waste, Recyclables and Green Waste Collection and Transportation to Disposal, Composting and Processing Facilities, dated as of the later of the date of execution thereof by the City or the Collector, as may be supplemented and amended from time to time in accordance with the terms thereof (“Agreement”), which Agreement is incorporated herein by reference and hereby made part hereof;
WHEREAS, it is in the interest of Guarantor that the Collector enter into the Agreement with the City;
WHEREAS, the City is willing to enter into the Agreement only upon the condition that the Guarantor execute this Guaranty;
WHEREAS, in the event Collector fails to timely and fully perform its obligations, including the payment of moneys, pursuant to the Agreement, Guarantor is willing to Guaranty, Collector’s timely and full performance thereof;
WHEREAS, it is a condition precedent to the City’s obligations under the Agreement that the Guarantor provide this Guaranty.

NOW, THEREFORE, as an inducement to the City to enter into the Agreement, the Guarantor agrees as follows:

Capitalized terms used herein and not otherwise defined herein, shall have the meaning assigned to them in the Agreement.
(1) Guaranty of Collector’s Performance Under Agreement. Guarantor hereby directly, unconditionally, irrevocably, and absolutely guaranties the timely and full performance of Collector’s obligations under the Agreement in accordance with the terms and conditions contained therein. Within thirty days’ written request therefor by the City, Guarantor shall honor such Guaranty. Notwithstanding the unconditional nature of the Guarantor’s payment obligations set forth herein, the Guarantor shall have the right to assert the defenses provided in the paragraph entitled “Defenses” under Section 8 hereof, against claims made hereunder.

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT L-2

(2) Governing law; consent to jurisdiction; service of process. This Guaranty shall be governed by the laws of the State of California. The Guarantor hereby agrees to the service of process in the State of California for any claim or controversy arising out of this Guaranty or relating to any breach. The Guarantor hereby agrees that the courts of the State of California, County of San Bernardino and to the extent permitted by law, the United States District Court for the Central District of California, shall have the exclusive jurisdiction of all suits, actions, and other proceedings involving itself and to which the City may be party for the adjudication of any claim or controversy arising out of this Guaranty or relating to any breach hereof, waives any objections that it might otherwise have to the venue of any such Court for the trial of any such suit, action, or proceeding, and consents to the service of process in any such suit, action, or proceeding by prepaid registered mail, return receipt requested.
(3) Enforceability; no assignment. This Guaranty shall be binding upon and enforceable against Guarantor, its successors, assigns, and legal representatives. It is for the benefit of the City, its successors and assigns.
(4) Guaranty absolute and unconditional. The undertakings of Guarantor set forth herein are absolute and unconditional, and the City shall be entitled to enforce any or all of the undertakings against Guarantor without being first required to enforce any remedies or to seek to compel the Collector to perform its obligations under the agreement or to seek, or obtain recourse against any other party or parties, including but not limited to the Collector or any assignee of the Collector, who are, or may be, liable therefor in whole or in part, irrespective of any cause or state of facts whatever. Without limiting the generality of the foregoing, the Guarantor expressly agrees that its obligations hereunder shall not be affected, limited, modified or impaired by any state of facts or the happening from time to time of an event, other that the payment of monetary obligations by the Collector to City under the Agreement in accordance with the terms of the Agreement, including, without limitation, any of the following, each of which is hereby expressly waived as a defense to its liability hereunder, except to the extent such defenses would be available to the Collector and release, discharge or otherwise offset Collector’s obligations under the Agreement:
(a) the invalidity, irregularity, illegality, or unenforceability, of or any defect in or objections to the Agreement;
(b) any modification, amendment, or compromise of or waiver of compliance with or consent to variation from any of the provisions of the Agreement by the Collector;

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Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT L-3

(c) any release of any collateral or lien thereof, including, without limitation, any performance bond;
(d) any defense based upon the election of any remedies against the Guarantor of the Collector, or both, including without limitation, any consequential loss by the Guarantor of its right to recover any deficiency, by way of subrogation or otherwise, from the Collector or any other person or entity;
(e) the recovery of any judgment against the Collector to enforce any such collateral or performance bond;
(f) the City or its assigns taking or omitting to take any of the actions which it or any such assign is required to take under the Agreement; any failure, omission or delay on the part of the City or its assignees to enforce, assert or exercise any right, power or remedy conferred on it or its assigns by the Agreement, except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense by the Collector with respect to a specific obligation;
(g) the default or failure of the Guarantor to fully perform any of its obligations set forth in this Guaranty;
(h) the bankruptcy, insolvency, or similar proceeding involving or pertaining to the Collector or the City, or any order or decree of a court, trustee or receiver in any such proceeding;
(i) in addition to those circumstances described in item (h), any other circumstance which might otherwise constitute a legal or equitable discharge of a guarantor or limit the recourse of the City to the Guarantor; (j) the existence or absence of any action to enforce the Agreement; (k) subject to the provisions of the Agreement relating to Uncontrollable Circumstances, any present or future law or order of any government or of any agency thereof, purporting to reduce, amend or otherwise affect the Agreement or to vary any terms of payment or performance under the Agreement;
provided that, notwithstanding the foregoing, Guarantor shall not be required to pay any monetary obligation of Collector to City from which Collector would be discharged, released or otherwise excused under the provisions of the Agreement.
(5) Waivers. Guarantor hereby waives:

46708.00113\34915266.2

EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT L-4

(a) notice of acceptance of this Guaranty and of the creation, renewal, extension, and accrual of the limited financial obligations Guarantied hereunder;
(b) notice that any person has relied on this Guaranty; (c) diligence, demand of payment and notice of default or nonpayment under this Guaranty or the Agreement, and any and all other notices required under the Agreement;
(d) filing of claims with a court in the event of reorganization, insolvency, or bankruptcy of the Collector;
(e) any right to require a proceeding first against the Collector or with respect to any collateral or lien, including, without limitation, any performance bond, or any other requirement that the City exercise any remedy or take any other action against the Collector or any other person, or in respect of any collateral or lien, before proceeding hereunder; (f) (i) any demand for performance or observance of, (ii) any enforcement of any provision of, or (iii) any pursuit or exhaustion of remedies with respect to, any security (including, with limitation, any performance bond) for the obligations of the Collector under the Agreement; any pursuit of exhaustion of remedies against the Collector or any other obligor or guarantor of the obligations; and any requirement of promptness or diligence on the part of any person in connection therewith; (g) to the extent that it lawfully may do so, any and all demands or notices of every kind and description with respect to the foregoing or which may be required to be given by any statute or rule of law, and any defense of any kind which it may now or hereafter have with respect to this Guaranty or the obligations of the Collector under the Agreement, except any Notice to the Collector required pursuant to the Agreement or Applicable Law which Notice preconditions the Collector’s obligation or the defenses listed in Section (8) below.

To the extent that it may lawfully do so, the Guarantor hereby further agrees to waive, and does hereby absolutely and irrevocably waive and relinquish, the benefit and advantage of, and does hereby covenant not to assert, any appraisement, valuation, stay, extension, redemption or similar laws, now or at any time hereafter in force, which might delay, prevent or otherwise impede the due performance or proper enforcement of this Guaranty, the Agreement, or the obligations of the Collector under the Agreement, and hereby expressly agrees that the right of the City hereunder may be enforced notwithstanding any partial performance by the Collector or the Guarantor, or the foreclosure upon any security (including, with limitation, any

46708.00113\34915266.2

EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT L-5

performance bond) given by the Collector for its performance of any of its obligations under the Agreement.
(6) Agreements between City and Collector; Waivers by City. The Guarantor agrees that, without the necessity for any additional endorsement or Guaranty by or any reservation of rights against Guarantor and without any further assent by Guarantor, by mutual agreement between the City and Collector, the City and Collector may, from time to time (a) renew, modify or compromise the liability of the Collector for or upon any of the obligations hereby Guarantied; or
(b) consent to any amendment or change of any terms of the Agreement; or
(c) accept, release, or surrender any security (including, without limitation, any performance bond), or
(d) grant any extensions or renewals of the obligations of the Collector under the Agreement, and any other indulgence with respect thereto, and to effect any release, compromise or settlement with respect thereto, all without releasing or discharging the liability of Guarantor hereunder.

The Guarantor further agrees that the City or any of its assigns shall have and may exercise full power in its uncontrolled discretion, without in any way affecting the liability of the Guarantor under this Guaranty, to waive compliance with and any default of the Collector under, the Agreement. (7) Continuing Guaranty. This Guaranty is a continuing Guaranty and shall continue to be effective or be reinstated, as applicable, if at any time any payment of any of the obligations hereby Guarantied is rescinded or is otherwise required to be returned upon reorganization, insolvency or bankruptcy of the Collector or Guarantor or otherwise, all as though such payment had not been made.
(8) Defenses. Notwithstanding any provision in this Guaranty to the contrary, the Guarantor may exercise or assert any and all legal or equitable rights, defenses, counter claims or affirmative defenses under the Agreement or Applicable Law which the Collector could assert against any party seeking to enforce the Agreement against the Collector, and nothing in this Guaranty shall constitute a waiver thereof by the Guarantor.
(9) Payment of costs of enforcing Guaranty. Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorney’s fees, which may be incurred by the City in enforcing this Guaranty following the default on the part of the Guarantor hereunder whether the same shall be enforced by suit or otherwise.

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EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT L-6

(10) Enforcement. The terms of this Guaranty may be enforced as to any one or more breaches either separately or cumulatively. (11) Remedies cumulative. No remedy herein conferred upon or reserved to the City hereunder is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under the Guaranty and the Agreement or hereinafter existing at law or in equity or by statute. (12) Severability. The invalidity or unenforceabilty of any one or more phrases, sentences or clauses in this Guaranty contained shall not affect the validity or enforceability of the remaining portions of this Guaranty, or any part thereof.
(13) Amendments. No amendment, change, modification or termination of this Guaranty shall be made except upon the written consent of Guarantor and the City.
(14) Term. The obligations of the Guarantor under this Guaranty shall remain in full force and effect until (i) all — monetary obligations of the Collector under the Agreement shall have been fully performed or provided for in accordance with the Agreement, or (ii) the discharge, release or other excuse of the obligations in accordance with the terms of the Agreement. (15) No set-offs, etc.
(a) By Guarantor. The obligation of Guarantor under this Guaranty shall not be affected by any set-off, counterclaim, recoupment, defense or other right that Guarantor may have against the City on account of any claim of the Guarantor against the City; provided that Guarantor reserves the right to bring independent claims not arising from the Agreement against the City so long as any such claims shall not be used to set-off or deduct from any claims which the City may have against the Guarantor arising from this Guaranty.
(b) By Collector. The obligation of Guarantor under this Guaranty shall be subject to any set-off, counterclaim, recoupment, defense or other right that the Collector may assert pursuant to the Agreement, if any, but the obligation of Guarantor under this Guaranty shall not be subject to any set- off, counterclaim, recoupment, defense or other right that the Collector may assert independently of and outside the Agreement.
(16) Warranties and representations. The Guarantor warrants and represents that as of date of execution of this Guaranty:
(a) The Guarantor has the power, authority and legal right to enter into this Guaranty and to perform its obligations and undertakings hereunder, and the execution, delivery and performance of this Guaranty by the Guarantor

46708.00113\34915266.2

EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT L-7

(i) have been duly authorized by all necessary corporate and shareholder action on the part of the Guarantor, (ii) have the requisite approval of all federal, State and local governing bodies having jurisdiction or authority with respect thereto, (iii) do not violate any judgment, order, law or regulation applicable to the Guarantor; (iv) do not conflict with or constitute a default under any agreement or instrument to which the Guarantor is a party or by which the Guarantor or its assets may be bound or affected; and (v) do not violate any provision of the Guarantor’s articles or certificate of incorporation or by-laws.
(b) This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms; and (c) There are no pending or, to the knowledge of the Guarantor, threatened actions or proceedings before any court or administrative agency which would have a material adverse effect on the financial condition of the Guarantor, ,or the ability of the Guarantor to perform its obligations or undertakings under this Guaranty except as publicly disclosed in Securities and Exchange Commission filings.
(17) Counterparts. This Guaranty may be executed in any number of counterparts, some of which may not bear the signatures of all parties hereto. Each such counterpart, when so executed and delivered, shall be deemed to be an original and all of such counterparts, taken together, shall constitute one and the same instrument; provided, however, that in pleading or proving this Guaranty, it shall not be necessary to produce more than one copy (or sets of copies) bearing the signature of the Guarantor. (18) Notices. All notices, instructions and other communications required or permitted to be given to or made upon any party hereto shall be in writing, and shall be given in the manner and to the addresses provided in the Agreement.
(19) Separate suits. Each and every payment default by Collector under the Agreement shall give rise to a separate cause of action under this Guaranty, and separate suits may be brought hereunder by the City or its assigns as each cause of action arises.
(20) Headings. The Section headings appearing herein are for convenience only and shall not govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Guaranty. (21) Entire Agreement. This Guaranty constitutes the entire agreement between the parties hereto with respect to the transactions contemplated by this Guaranty. Nothing in this Guaranty is intended to confer on any person

46708.00113\34915266.2

EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT L-8

other .than the Guarantor, the City and their permitted successors and assigns hereunder any rights or remedies under or by reason of this Guaranty. (22) Personal Liability. It is understood and agreed to by the City that nothing contained herein shall create any obligation or right to look to any director, officer, employee or stockholder of the Guarantor (or any affiliate thereof) for the satisfaction of any obligations hereunder, and no judgment, order or execution with respect to or in connection against any such director, officer, employee or stockholder.

IN WITNESS WHEREOF, Guarantor has executed this instrument the day and year first above written.

By:

Burrtec Waste Group, Inc. Cole Burr, President

46708.00113\34915266.2

EXHIBITS
Agreement Between the City of Upland and Burrtec Waste Industries, Inc. for Solid Waste Collection, Processing and Disposal Service

EXHIBIT M

[Insert updated Exhibit M on rates]

S T A F F R E P O R T
I T E M N O . 11.A .

D A T E :J u ne 1 3, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : R O B E R T D A L Q U E S T, D E V E LO P M E N T S E R V I C E S D I R E C TO R

L I Z C H A V E Z , D E V E LO P M E N T S E R V I C E S M A N A G E R

J U L I E H E R N A N D E Z A N D J E N N I F E R B E R G , W E E D A B A T E M E N T

C O O R D I N A TO R S
S U B J E C T :A N N U A L W E E D A B A T E M E N T P R O G R A M

R E C O M M E N D E D A C T I O N
I t is recom m end ed th at th e C ity C ou n ci l ap p rove th e n on-c om p li anc e list (Rep ort) p lus the ad d ition al fee of $27 8.0 0 p ursu ant to Resolu tion N o. 6 63 7 ad op ted on Feb ruary 28 , 20 22 .

G O A L S T A T E M E N T
Th e p rop osed action su p p orts th e C ity’s g oal to p rom ote and en han ce th e q uality of life in Up lan d b y rem ovi ng th e p oten ti al for any fire or safety h azard s, or p u b lic n u i san ce t hat m ay exist from weed g row th and com b u stib le d eb ris accum ulations on p rivate an d p ub lic p rop erty.

B A C K G R O U N D
Th e C ity of U p land has b een con d u ct in g weed ab at em en t s ervi ces for over fou r d ecad es.

Recog nizing th at w eed g row th an d com b u st ib le d eb ri s can c reat e a p u b lic n uisan ce, th e Weed A b atem ent P rog ram is used to el im in ate l ikel y fire h azard s , p u b lic nu isance, an d p ub lic h ealth issu es. Th e p rog ram con tai n s th e fol lowi ng com p on ents: p u b l ic in form ation, in sp ect ion s, an d notification of viol ati on, an d i f n ecessary m an d at ory ab atem ent s. I n Feb ru ary 2 02 2, an ann oun cem ent w as in cl u d ed w it h i n th e C it y’s u t il it y s tat em en ts , as wel l as th e C ity H all M arq u ee an d on th e C it y’s web si te an d soc ial m ed ia accou nts ad vi si n g of th e s tart of t he Weed A b atem ent P rog ram and to en s u re th at p rop erty ow n ers are aware of h ow im p ortan t it is to m aintain th eir p rop ert y free of weed s and p reven t t he accum ulation of com b u st ib le d eb ris.

Th e notice is in clud ed as E xhib it 1 of th is rep ort. S taff con d u cts insp ection/s of all p rop erties w ithin th e C ity’s b ou n d aries . A d d itionally, on A p ril 2 , 20 22 , a worksh op was c ond uc ted to

d iscuss t he W eed A b at em en t P rog ram an d p rovid ed p rop erty own ers an op p ortu n i ty to un d erstand th e w eed ab atem ent p rocess.

I S S U E S /A N A L Y S I S
I n sp ection s were cond ucted b etween Feb ru ary an d M ay of 20 22 . T h e i ni ti al in sp ection id entifies p rop erties w ith an accum ulation of weed s, ru b b ish, and com b ustib le d eb ris. A “N otice to D estroy Weed s-Rem ove Ru b b ish or C om b u stib le D eb ris”, is then sen t to all p rop erty own ers of record in vi olat ion allowing th em ten (1 0 ) d ays to el im in ate th e p rob lem .

Th e n ot ic e d esc ri b es t h e sp eci fic c on d it ion of th e p rop ert y i nc lu d i ng a p h oto, id entifies th e violation (s) an d ord ers ab at em en t. A n in it ial ad m in istrative fee of $7 2 .0 0 i s ch arg ed at th is tim e. A final i n s p ec ti on is con d u ct ed an d those p rop ert ies st ill in viol ati on are assessed a m inim u m of $2 78 .00 (p u rsu an t to Resol u t ion N o. 6 6 3 7 , wh ic h was ap p roved b y t he C ity C ou ncil on Feb ru ary 28 , 20 22 ) p l u s t he c ost of ab atem ent b y a city c on t rac tor. E xh ib it 2 is th e “A n n u al N ot ice to D est roy W eed s -Rem ove Ru b b ish/Refu se”. E xh ib it 3 is Resolut ion N o. 66 37 an d E xh ib it 4 is the i n s p ec ti on list of c los ed cases an d N on-C om p liant P rop erties (Rep ort) with th eir cu rrent b alance assessed . T here are a total of 10 1 p rop erties th at are N on-C om p liant.

E xhib it 4 – i s a Rep ort wh ic h i d en ti fies the p arcels as a p otential p u b lic nu is anc e. D u rin g th e p u b lic hearin g p rocess p rop ert y own ers can t est ify on t h e st atu s of th eir p rop erty and m ay con test t he s u rvey resu lt s. I f t he p rop ert y is n ot free of th e p u b l ic n uisan ce, t h e C ity h as th e leg al rig h t t o rem ove w eed s , rub b i sh , an d /or refuse, an d as ses s th e c ost s of an y clean up ag ainst the p rop erty in th e form of a sp eci al as ses sm en t th rou g h th e S an B ern ard i n o C ou nty Tax A s ses sor’s O ffi ce. T he w eed ab atem en t p rocess an d p rog ram h as existed in U p lan d for m an y years an d c on t in u es to serve t he wh ole com m u n i ty en su ri n g p u b l ic health , safety, and w elfare.

F I S C A L I M P A C T S
Th e C ity an ticip ates recoverin g all ad m inistrative costs involved with im p lem en ting th is p rog ram p lu s any ad d ition al c ost s related to ab at em en t services. N o ad d it ion al ap p rop riations are req u ested at th is tim e.

Th e i n i ti al $72 .00 fee an d the m i n i m u m $27 8.0 0 for n on-com p li ant p rop ert y ow ners covers in sp ection ac ti vit ies and any or al l written or verb al com m u n i cat ion b y staff. T h e cost of ab atem en t servi ces from t he c it y cont ractor, C L S Lan d scap in g , are b as ed on t h e size an d th e w ork that m u st b e p rovid ed on the p rop erty to ab ate the violation .

A L T E R N A T I V E S
P rovid e altern ative d irection to staff.

AT TAC HM E NT S :

Description
Utility M ailing
Annual Notice
Resolution No. 6637
2022 Closed cases/Non-Compliant Property List (Report)

DEVELOPMENT SERVICES DEPARTMENT
Telephone (909) 931-4130
Facsimile (909) 931-4321

City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4100 • Fax (909) 931-4123 • TDD (900) 735-2929 • www.uplandca.gov Date

Owner Name
Street Address
City, State Zip

SUBJECT PROPERTY ADDRESS:

ASSESSORS PARCEL NUMBER:

NOTICE TO REMOVE, MAINTAIN WEEDS, GRASSES and/or COMBUSTIBLE DEBRIS

Notice is hereby given that on ___day of ____________, the City of Upland City Council passed a resolution declaring that weeds, grasses, and vegetation that are unmaintained, dead, or dying and/or combustible debris anywhere in the City of Upland are a public nuisance and a hazard. The resolution declared that these conditions constitute a public nuisance and hazard and must be abated. Otherwise, the nuisance will be removed by the city and the cost of removal will be assessed upon the property in the form a lien.

A copy of the resolution is on file with the City of Upland City Clerk. All property owners having any objections to the proposed abatement of the public nuisance and hazard on their property may attend a public meeting of the Upland City Council to be held __________________. Please provide objections to this notice, in writing, to the city clerk no later than ______________________. Please include the reason for your objection.

THIS NOTICE SERVES AS A LEGAL NOTICE AND ORDER TO ABATE. The County Assessor’s records indicate that you are the property owner of ___________________________________, APN#. You are the responsible party for this property. An inspection was conducted on ________________________ and violations of the City of Upland Municipal Code 8.12.020 and 8.12.040 which constitute a public nuisance were found on your property. A $72.00 Administrative Fee has been charged to you for this inspection and notification.

The condition of your property constitutes a public nuisance as described in the Upland Municipal Code, Title 8, Chapter 8.12.020 and 8.12.040. Please find photos and descriptions of the public nuisance/nuisances attached. You have 10 days from the date of this notice to comply and if the public nuisance/nuisances are removed there will be no additional fees or costs. If at final inspection, the public nuisance/nuisances remain than abatement will commence. In addition to the $72.00 there will be additional administrative fees starting at $278.00 as well as the cost for the abatement.

The City of Upland has legal right to abate the public nuisance/nuisances and place the costs of abatement as a special assessment on the property with the San Bernardino County Tax Assessors Office. PLEASE NOTE: your property must be maintained free of these violations year-round. Based on the adopted resolution these violations can be abated with no additional notice.

Please contact your Weed Abatement Coordinators at (909) 931-4134 for questions or concerns.

DEVELOPMENT SERVICES DEPARTMENT
Telephone (909) 931-4134
Facsimile (909) 931-4321

City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4100 • Fax (909) 931-4123 • TDD (900) 735-2929 • www.uplandca.gov May 25, 2022

Location APN Closed
Outstanding
Balance
1604 REDWOOD, UPLAND, CA, 91784 100544138 5/16/2022 72 880 KIMBERLY CT, UPLAND, CA, 91784 104328128 5/16/2022 72 749 N VALLEJO WAY, UPLAND, CA, 00000 104631119 5/16/2022 72 278 N 10TH AVE, UPLAND, CA, 91786 104645403 5/16/2022 72 248 N 10TH AVE, UPLAND, CA, 91786 104645401 5/16/2022 72 544 N 8TH AVE, UPLAND, CA, 91786 104621206 5/16/2022 72 216 S CAMPUS AVE, UPLAND, CA, 91786 104710214 5/16/2022 72 136 N 10TH AVE, UPLAND, CA, 91786 104654206 5/16/2022 72 178 N 12TH AVE, UPLAND, CA, 91786 104653111 5/16/2022 72 172 N 12TH AVE, UPLAND, CA, 91786 104653110 5/16/2022 72 102 12TH AVE, UPLAND, CA, 91786 104653101 5/17/2022 72 1458 BOWEN, UPLAND, CA, 91786 104650158 5/16/2022 72
1440 BOWEN ST, UPLAND, CA, 91786 104650157 5/16/2022 72 1356 BOWEN ST, UPLAND, CA, 91786 104650146 5/16/2022 72 159 S VALLEJO WAY, UPLAND, CA, 91786 104664127 5/16/2022 72 243 W 8TH ST, UPLAND, CA, 91786 104661215 5/16/2022 72
116 EUCLID PL, UPLAND, CA, 00000 104661310 5/16/2022 72 480 W 8TH ST, UPLAND, CA, 91786 104702444 5/16/2022 72
500 W 8TH ST, UPLAND, CA, 91786 104702443 5/16/2022 72
420 GREENFIELD CT, UPLAND, CA, 91786 104702306 5/16/2022 72 394 VERDUGO WAY, UPLAND, CA, 00000 104703111 5/16/2022 72 393 VINE AVE, UPLAND, CA, 91786 104703110 5/16/2022 72 386 VERDUGO WAY, UPLAND, CA, 91786 104703112 5/16/2022 72 404 S TULARE WAY, UPLAND, CA, 00000 104727220 5/16/2022 72 412 E HIGHLAND CT, UPLAND, CA, 91786 104708114 5/16/2022 72 291 S CAMPUS AVE, UPLAND, CA, 91786 104709150 5/16/2022 72 672 RAYMOND ST, UPLAND, CA, 91786 104709145 5/16/2022 72 656 RAYMOND ST, UPLAND, CA, 91786 104709143 5/17/2022 72 229 S CAMPUS AVE, UPLAND, CA, 91786 104709124 5/17/2022 72 375 E 7TH ST, UPLAND, CA, 91786 104707420 5/17/2022 72
312 S 2ND AVE, UPLAND, CA, 91786 104707313 5/23/2022 72 336 S 2ND AVE, UPLAND, CA, 00000 104707309 5/17/2022 72 176 S 1ST AVE, UPLAND, CA, 91786 104660204 5/17/2022 72

City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4134 • Fax (909) 931-4321 • TDD (900) 735-2929 • www.uplandca.gov 167 S SULTANA AVE, UPLAND, CA, 91786 104660408 5/17/2022 72 423 N 6TH AVE, UPLAND, CA, 91786 104642153 5/17/2022 72 691 E 9TH ST, UPLAND, CA, 00000 104643209 5/18/2022 72
57 F ST, UPLAND, CA, 00000 104626112 5/18/2022 72
649 N 1ST AVE, UPLAND, CA, 91786 104626108 5/17/2022 72 681 N 1ST AVE, UPLAND, CA, 91786 104626106 5/17/2022 72 755 N 1ST AVE, UPLAND, CA, 91786 104627112 5/17/2022 72 735 N 3RD AVE, UPLAND, CA, 91786 104627316 5/17/2022 72 790 N 2ND AVE, UPLAND, CA, 91786 104627309 5/17/2022 72 535 E ARROW, UPLAND, CA, 00000 104622321 5/17/2022 72
527 N 6TH AVE, UPLAND, CA, 91786 104622317 5/6/2022 72
629 N CAMPUS AVE, UPLAND, CA, 91786 104622510 5/17/2022 72 671 N CAMPUS AVE, UPLAND, CA, 00000 104622508 5/17/2022 72 690 N 6TH AVE, UPLAND, CA, 91786 104622506 5/17/2022 72 511 E G ST, UPLAND, CA, 00000 104622112 5/17/2022 72
545 E G ST, UPLAND, CA, 00000 104622110 5/17/2022 72
540 E 11TH ST, UPLAND, CA, 91764 104622103 5/17/2022 72 560 11TH ST, UPLAND, CA, 91786 104622104 5/17/2022 72 576 W 11TH ST, UPLAND, CA, 91786 104622105 5/17/2022 72 508 E FOOTHILL BLVD, UPLAND, CA, 91786 104609101 5/17/2022 72 409 E 11TH ST, UPLAND, CA, 91786 104608230 5/17/2022 72 395 E 11TH ST, UPLAND, CA, 00000 104608123 5/17/2022 72 865 N 1ST AVE, UPLAND, CA, 00000 104606143 5/17/2022 72 895 N 1ST AVE, UPLAND, CA, 00000 104606140 5/17/2022 72 775 CENTRAL AVE, UPLAND, CA, 91786 100730104 5/18/2022 72 1931 W ARROW, UPLAND, CA, 91786 100728123 5/18/2022 72
1638 W HUNTINGTON DR, UPLAND, CA, 91786 100746204 5/17/2022 72 400 DRAKE AVE, UPLAND, CA, 91786 100744208 5/17/2022 72 340 DRAKE AVE, UPLAND, CA, 91786 100744203 5/17/2022 72 322 DRAKE AVE, UPLAND, CA, 91786 100744202 5/17/2022 72 318 N CENTRAL AVE, UPLAND, CA, 91786 100744101 5/17/2022 72 313 HERVEY AVE, UPLAND, CA, 91786 100744223 5/17/2022 72 332 HERVEY AVE, UPLAND, CA, 91786 100744302 5/17/2022 72 829 N 2ND AVE, UPLAND, CA, 91786 104606118 5/17/2022 72 813 N 2ND AVE, UPLAND, CA, 91786 104606120 5/17/2022 72 102 S LOMA PL, UPLAND, CA, 91786 100764201 5/17/2022 72 28 N VISTA PL, UPLAND, CA, 91786 100765502 5/17/2022 72 884 N 3RD AVE, UPLAND, CA, 91786 104607211 5/17/2022 72 876 N 3RD AVE, UPLAND, CA, 00000 104607210 5/17/2022 72 850 N 3RD AVE, UPLAND, CA, 91786 104607207 5/17/2022 72 838 N THIRD AVE, UPLAND, CA, 91786 104607206 5/17/2022 72 732 N 2ND AVE, UPLAND, CA, 91786 104627304 5/17/2022 72 656 N 2ND AVE, UPLAND, CA, 91786 104626306 5/17/2022 72 640 N 2ND AVE, UPLAND, CA, 00000 104626305 5/17/2022 72 185 S 2ND AVE, UPLAND, CA, 91786 104660215 5/17/2022 72

City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4134 • Fax (909) 931-4321 • TDD (900) 735-2929 • www.uplandca.gov 771 N 2ND AVE, UPLAND, CA, 91786 104627211 5/17/2022 72 934 N EUCLID AVE, UPLAND, CA, 91786 104606162 5/17/2022 72 380 W 9TH ST, UPLAND, CA, 91786 104662125 5/17/2022 72
689 W VERNON DR, UPLAND, CA, 00000 104634103 5/17/2022 72 619 W VERNON DR, UPLAND, CA, 91786 104634101 5/16/2022 72 524 WINN DR, UPLAND, CA, 91786 104630307 5/17/2022 72 428 WINN DR, UPLAND, CA, 91786 104629115 5/17/2022 72 793 N EUCLID AVE, UPLAND, CA, 91786 104628310 5/17/2022 72 564 N LAUREL AVE, UPLAND, CA, 00000 104628205 5/17/2022 72 644 SHASTA WAY, UPLAND, CA, 91786 104629205 5/25/2022 72 686 N TULARE WAY, UPLAND, CA, 00000 104630208 5/18/2022 72 765 SHASTA WAY, UPLAND, CA, 00000 104630218 5/18/2022 72 677 N UKIAH WAY, UPLAND, CA, 91786 104631224 5/17/2022 72 735 N UKIAH WAY, UPLAND, CA, 00000 104631220 5/12/2022 72 765 N UKIAH WAY, UPLAND, CA, 00000 104631218 5/13/2022 72 795 N UKIAH WAY, UPLAND, CA, 00000 104631216 5/18/2022 72 765 N VALLEJO WAY, UPLAND, CA, 91786 104631118 5/18/2022 72 886 AMBER CT, UPLAND, CA, 91786 104601202 5/6/2022 72 886 AMBER CT, UPLAND, CA, 91786 104601202 5/17/2022 72 876 ALTURA WAY, UPLAND, CA, 91786 104601124 5/17/2022 72 866 SHARON WAY, UPLAND, CA, 00000 104601113 5/17/2022 72 761 ELM WAY, UPLAND, CA, 00000 100719317 5/17/2022 72 1088 WINN DR, UPLAND, CA, 91786 100720221 5/17/2022 72 119 S SAN ANTONIO AVE, UPLAND, CA, 91786 104665106 5/17/2022 72 109 S SAN ANTONIO AVE, UPLAND, CA, 91786 104665105 5/17/2022 72 142 MERCER WAY, UPLAND, CA, 91786 104665109 5/17/2022 72 979 W SEABOARD CT, UPLAND, CA, 91786 100754253 5/3/2022 72 229 S SAN ANTONIO AVE, UPLAND, CA, 91786 104701111 5/16/2022 72 323 S SAN ANTONIO AVE, UPLAND, CA, 91786 104701121 5/17/2022 72 876 W 8TH ST, UPLAND, CA, 91786 104701103 5/17/2022 72
896 W 8TH ST, UPLAND, CA, 91786 104701101 5/17/2022 72
906 W 8TH ST, UPLAND, CA, 91786 100811206 4/26/2022 72
914 W 8TH ST, UPLAND, CA, 91786 100811205 5/16/2022 72
906 W AZURE CT, UPLAND, CA, 91786 104729201 5/17/2022 72 355 AUSTIN WAY, UPLAND, CA, 91786 104701211 5/17/2022 72 209 S COMET AVE, UPLAND, CA, 91786 100811104 5/5/2022 72 1037 HAMPDEN CT, UPLAND, CA, 00000 100812218 5/17/2022 72 1068 HAMPDEN CT, UPLAND, CA, 00000 100812208 5/17/2022 72 146 LIDO WAY, UPLAND, CA, 91786 100761130 5/17/2022 72 184 SPENCER AVE, UPLAND, CA, 91786 100761102 5/17/2022 72 1457 W ARROW HWY, UPLAND, CA, 00000 100724210 5/17/2022 72 1458 WINN DR, UPLAND, CA, 91786 100724209 5/17/2022 72 444 TYLER WAY, UPLAND, CA, 91786 100749120 5/17/2022 72 443 TYLER WAY, UPLAND, CA, 91786 100749121 5/17/2022 72 1428 RANDY ST, UPLAND, CA, 91786 100749202 5/17/2022 72

City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4134 • Fax (909) 931-4321 • TDD (900) 735-2929 • www.uplandca.gov 1348 RANDY ST, UPLAND, CA, 91786 100749212 5/17/2022 72 719 WEDGEWOOD AVE, UPLAND, CA, 91786 100721106 5/17/2022 72 608 MAYWOOD WAY, UPLAND, CA, 91786 100722310 5/17/2022 72 1316 WAVERLY CT, UPLAND, CA, 00000 100714210 5/17/2022 72 1390 W 15TH ST, UPLAND, CA, 91786 100622165 5/17/2022 72 1261 W 15TH ST, UPLAND, CA, 91786 100611203 5/17/2022 72 1576 WEDGEWOOD ST, UPLAND, CA, 91786 100612224 5/17/2022 72 1572 HONEYDALE CT, UPLAND, CA, 91786 100608163 5/17/2022 72 1361 NOTRE DAME ST, UPLAND, CA, 91786 100643152 5/17/2022 72 1376 MAYWOOD AVE, UPLAND, CA, 91786 100643149 5/17/2022 72 1423 NOTRE DAME ST, UPLAND, CA, 91786 100641152 5/17/2022 72 1394 W 14TH ST, UPLAND, CA, 91786 100641147 5/17/2022 72 1263 DIANA CT, UPLAND, CA, 00000 100643204 5/17/2022 72 1323 DIANA CT, UPLAND, CA, 00000 100643130 5/17/2022 72 1224 KAREN CT, UPLAND, CA, 91786 100643311 5/17/2022 72 1291 N VALLEJO WAY, UPLAND, CA, 00000 104559113 5/17/2022 72 1179 N UKIAH WAY, UPLAND, CA, 00000 104559137 5/17/2022 72 1182 N TULARE WAY, UPLAND, CA, 91786 104558122 5/17/2022 72 949 NOTRE DAME ST, UPLAND, CA, 91786 100646106 5/17/2022 72 1021 NOTRE DAME ST, UPLAND, CA, 91786 100645107 5/18/2022 72 1015 SPRINGFIELD ST, UPLAND, CA, 91786 100647212 5/17/2022 72 1120 W 13TH ST, UPLAND, CA, 91786 100649107 5/17/2022 72 212 DAYTON ST, UPLAND, CA, 00000 104535201 5/17/2022 72 1168 CORONADO ST, UPLAND, CA, 91786 100613127 5/17/2022 72 1177 COLLEEN CT, UPLAND, CA, 00000 100618122 5/17/2022 72 964 CUMBERLAND ST, UPLAND, CA, 91786 100616120 5/18/2022 72 1428 ALBRIGHT AVE, UPLAND, CA, 91786 104530305 5/18/2022 72 1558 O MALLEY AVE, UPLAND, CA, 91786 100614416 5/18/2022 72 1168 O HARA CT, UPLAND, CA, 91786 100613150 5/18/2022 72 1180 KIRBY CT, UPLAND, CA, 91786 100613114 5/18/2022 72 1169 W 15TH ST, UPLAND, CA, 91786 100613128 5/18/2022 72 1453 N UKIAH WAY, UPLAND, CA, 00000 104528308 5/18/2022 72 1547 CARNATION WAY, UPLAND, CA, 00000 104504401 5/18/2022 72 422 E WEST, UPLAND, CA, 91786 104552408 5/18/2022 72
638 E WEST ST, UPLAND, CA, 91786 104552209 5/16/2022 72 563 E PINE ST, UPLAND, CA, 91786 104553220 5/18/2022 72 1190 5TH ST, UPLAND, CA, 00000 104553304 5/18/2022 72 1329 WINSTON CT, UPLAND, CA, 00000 104538214 5/18/2022 72 1294 5TH AVE, UPLAND, CA, 91786 104553208 5/18/2022 72 1327 N 5TH AVE, UPLAND, CA, 91786 104538115 5/18/2022 72 1179 5TH AVE, UPLAND, CA, 91786 104553139 5/18/2022 72 1165 5TH AVE, UPLAND, CA, 91786 104553140 5/18/2022 72 473 E WEST, UPLAND, CA, 91786 104552302 5/18/2022 72
381 E WEST ST, UPLAND, CA, 91786 104552312 5/18/2022 72 367 E WEST ST, UPLAND, CA, 91786 104552308 5/18/2022 72

City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4134 • Fax (909) 931-4321 • TDD (900) 735-2929 • www.uplandca.gov 1346 N 1ST AVE, UPLAND, CA, 00000 104536124 5/18/2022 72 1354 N 1ST AVE, UPLAND, CA, 00000 104536125 5/18/2022 72 1370 N EUCLID AVE, UPLAND, CA, 91786 104536227 5/18/2022 72 1358 N EUCLID AVE, UPLAND, CA, 91786 104536225 5/18/2022 72 1196 N EUCLID AVE, UPLAND, CA, 91786 104554103 5/6/2022 72 1529 SHELLEY AVE, UPLAND, CA, 91786 104507123 5/18/2022 72 1448 N EUCLID AVE, UPLAND, CA, 91786 104525107 5/18/2022 72 1216 BRANTLEY CT, UPLAND, CA, 91786 104542322 5/18/2022 72 1185 BRANTLEY CT, UPLAND, CA, 91786 104542314 5/18/2022 72 993 N EDDINGTON ST, UPLAND, CA, 91786 104541107 5/18/2022 72 1326 CRAWFORD AVE, UPLAND, CA, 91786 104542225 5/5/2022 72 1191 E FOOTHILL BLVD, UPLAND, CA, 91786 104548222 5/5/2022 72 1281 ELMER CT, UPLAND, CA, 91786 104543232 5/5/2022 72 1291 ALTA AVE, UPLAND, CA, 91786 104546411 5/5/2022 72 1463 ESTRELLITA CT, UPLAND, CA, 91786 104544307 5/18/2022 72 1455 ANITA ST, UPLAND, CA, 91786 104546209 5/18/2022 72 1393 E 15TH ST, UPLAND, CA, 91786 104515123 5/5/2022 72 1435 ALTA AVE, UPLAND, CA, 91786 104517701 5/5/2022 72 1487 ALTA AVE, UPLAND, CA, 91786 104516402 5/5/2022 72 1456 CARLOS WAY, UPLAND, CA, 91786 104520116 5/5/2022 72 1497 FERNANDO AVE, UPLAND, CA, 91786 104519145 5/5/2022 72 1616 REDWOOD, UPLAND, CA, 91784 100544140 5/2/2022 72 1616 ORANGEWOOD AVE, UPLAND, CA, 91784 100544130 5/18/2022 72 1571 RESORT ST, UPLAND, CA, 91784 100519159 5/18/2022 72 1621 LAKEWOOD AVE, UPLAND, CA, 91784 100542431 5/18/2022 72 1649 LAKEWOOD AVE, UPLAND, CA, 91784 100542426 5/18/2022 72 1643 LAKEWOOD AVE, UPLAND, CA, 91784 100542427 5/18/2022 72 614 AZURE CT, UPLAND, CA, 91786 104727212 5/18/2022 72 480 W 18TH ST, UPLAND, CA, 91784 104433304 5/18/2022 72 1981 LOOKING GLASS WAY, UPLAND, CA, 91784 100508111 5/18/2022 72 434 N 2ND AVE, UPLAND, CA, 91786 104638318 - 350
1487 E SALINA ST, UPLAND, CA, 91786 104649201 - 350
478 N EIGHTH AVE, UPLAND, CA, 91786 104644321 - 350
1052 E 7TH ST, UPLAND, CA, 91786 104719122 - 350
835 OLIVE ST, UPLAND, CA, 91786 104710104 - 350
1088 E 8TH ST, UPLAND, CA, 91786 104710309 - 350
910 E 9TH ST, UPLAND, CA, 91786 104654109 - 350
124 N 12TH AVE, UPLAND, CA, 91786 104653104 - 350
1428 BOWEN ST, UPLAND, CA, 91786 104650155 - 350
1402 BOWEN ST, UPLAND, CA, 91786 104650152 - 350
1382 BOWEN ST, UPLAND, CA, 91786 104650149 - 350
1361 E CHAFFEE ST, UPLAND, CA, 91786 104650179 - 350
175 S VALLEJO WAY, UPLAND, CA, 00000 104664130 - 350
286 EUCLID PL, UPLAND, CA, 91786 104661207 - 350
296 S 3RD AVE, UPLAND, CA, 91786 104706401 - 350

City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4134 • Fax (909) 931-4321 • TDD (900) 735-2929 • www.uplandca.gov 184 S 3RD AVE, UPLAND, CA, 91786 104660403 - 350
164 S 3RD AVE, UPLAND, CA, 91786 104660406 - 350
613 E 8TH ST, UPLAND, CA, 91786 104657111 - 350
105 E A ST, UPLAND, CA, 91786 104659203 - 350
618 E 9TH ST, UPLAND, CA, 91786 104656206 - 350
618 E A ST, UPLAND, CA, 91786 104656101 - 350
406 N 6TH AVE, UPLAND, CA, 91786 104643104 - 350
239 N CAMPUS AVE, UPLAND, CA, 91786 104643208 - 350
886 N 1ST AVE, UPLAND, CA, 00000 104606130 - 350
609 N 6TH AVE, UPLAND, CA, 91786 104622211 - 350
582 N 6TH AVE, UPLAND, CA, 91786 104622407 - 350
587 N CAMPUS AVE, UPLAND, CA, 91786 104622410 - 350
854 N 4TH AVE, UPLAND, CA, 91786 104608235 - 350
926 N 3RD AVE, UPLAND, CA, 91786 104607215 - 350
835 N 1ST AVE, UPLAND, CA, 00000 104606146 - 350
950 MONTE VISTA AVE, UPLAND, CA, 91786 100702111 - 350 108 S SIERRA PL, UPLAND, CA, 91786 100764302 - 350
462 DRAKE, UPLAND, CA, 91786 100744229 - 350
361 N DRAKE AVE, UPLAND, CA, 91786 100744115 - 350
63 S LOMA PL, UPLAND, CA, 91786 100765508 - 350
1822 W 9TH ST, UPLAND, CA, 91786 100764204 - 350
1916 W 9TH ST, UPLAND, CA, 91786 100765308 - 350
893 N 4TH AVE, UPLAND, CA, 91786 104608112 - 350
896 N 3RD AVE, UPLAND, CA, 91786 104607212 - 350
766 N 2ND AVE, UPLAND, CA, 91786 104627307 - 350
886 N 1ST AVE, UPLAND, CA, 00000 104606130 - 350
410 W ALPINE ST, UPLAND, CA, 91786 104634131 - 350
446 WINN DR, UPLAND, CA, 00000 104629114 - 350
576 WINN DR, UPLAND, CA, 91786 104630304 - 350
690 WINN DR, UPLAND, CA, 00000 104631316 - 350
344 WINN DR, UPLAND, CA, 91786 104629120 - 350
238 WINN DR, UPLAND, CA, 91786 104629126 - 350
216 WINN DR, UPLAND, CA, 91786 104629127 - 350
778 N LAUREL AVE, UPLAND, CA, 91786 104628308 - 350
614 SHASTA WAY, UPLAND, CA, 91786 104629203 - 350
657 SHASTA WAY, UPLAND, CA, 00000 104630225 - 350
744 N VALLEJO WAY, UPLAND, CA, 91786 104631212 - 350
775 N VALLEJO WAY, UPLAND, CA, 91786 104631117 - 350
662 N LAUREL AVE, UPLAND, CA, 91786 104628301 - 350
758 N LAUREL AVE, UPLAND, CA, 91786 104628307 - 350
608 MAPLE WAY, UPLAND, CA, 00000 100718114 - 350
748 CAMPHOR WAY, UPLAND, CA, 91786 104632117 - 350
734 CAMPHOR WAY, UPLAND, CA, 00000 104632116 - 350
664 CAMPHOR WAY, UPLAND, CA, 91786 104632111 - 350
896 ALTURA WAY, UPLAND, CA, 91786 104601126 - 350

City of Upland
460 North Euclid Avenue, Upland, CA 91786-4732 • (909) 931-4134 • Fax (909) 931-4321 • TDD (900) 735-2929 • www.uplandca.gov 960 SHERIDAN ST, UPLAND, CA, 91786 100755313 - 350
824 SHERIDAN ST, UPLAND, CA, 91786 104665208 - 350
906 W 9TH ST, UPLAND, CA, 91786 100755114 - 350
952 W 9TH ST, UPLAND, CA, 91786 100755105 - 350
221 S SAN ANTONIO, UPLAND, CA, 91786 104701110 - 350
396 BIXBY WAY, UPLAND, CA, 91786 104701215 - 350
240 AUSTIN WAY, UPLAND, CA, 91786 104701142 - 350
232 S COMET AVE, UPLAND, CA, 91786 100811204 - 350
840 AZURE CT, UPLAND, CA, 00000 104729207 - 350
448 TERRY WAY, UPLAND, CA, 91786 100749126 - 350
1418 W ARROW, UPLAND, CA, 00000 100749102 - 350
1484 CORTE SANTANA, UPLAND, CA, 91786 100748225 - 350 1346 RANDY ST, UPLAND, CA, 91786 100749213 - 350
1314 W 11TH ST, UPLAND, CA, 91786 100722206 - 350
625 FAIRWOOD WAY, UPLAND, CA, 91786 100724113 - 350
1332 ELMWOOD ST, UPLAND, CA, 91786 100722304 - 350
1421 NORWOOD CT, UPLAND, CA, 00000 100723220 - 350
848 SILVERWOOD AVE, UPLAND, CA, 91786 100714105 - 350 1251 W 15TH ST, UPLAND, CA, 91786 100611202 - 350
1562 CLOVERDALE AVE, UPLAND, CA, 91786 100608132 - 350 1527 FAIRWOOD WAY, UPLAND, CA, 00000 100610214 - 350
1051 SPRINGFIELD ST, UPLAND, CA, 91786 100647216 - 350 1094 W 13TH ST, UPLAND, CA, 91786 100647140 - 350
918 W FIFTEENTH ST, UPLAND, CA, 91786 100616212 - 350
1529 O MALLEY AVE, UPLAND, CA, 91786 100614122 - 350
1132 KIRBY CT, UPLAND, CA, 91786 100613118 - 350
1185 O HARA CT, UPLAND, CA, 91786 100613146 - 350
1577 REDDING WAY, UPLAND, CA, 00000 104502302 - 350
572 E WEST ST, UPLAND, CA, 91786 104552205 - 350
440 E WEST ST, UPLAND, CA, 91786 104552409 - 350
689 E PINE ST, UPLAND, CA, 91786 104553214 - 350
1377 N 5TH AVE, UPLAND, CA, 91786 104538105 - 350
1163 WINSTON CT, UPLAND, CA, 00000 104553120 - 350
1175 N 3RD AVE, UPLAND, CA, 91786 104554140 - 350
359 E 14TH ST, UPLAND, CA, 91786 104522209 - 350
1626 WILSON AVE, UPLAND, CA, 91784 100542409 - 350
835 W 18TH ST, UPLAND, CA, 91784 104430209 - 350
1679 N PALM AVE, UPLAND, CA, 91784 104457403 - 350
1874 REDDING, UPLAND, CA, 91784 104429125 - 350
2167 KELLY AVE, UPLAND, CA, 91784 100423139 - 350
1983 WHITE RABBIT TRL, UPLAND, CA, 91784 100508147 - 350

S T A F F R E P O R T
I T E M N O . 11.B .

D A T E :J u ne 1 3, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : R O B E R T D. D A L Q U E S T, D E V E LO P M E N T S E R V I C E S D I R E C TO R

L I Z C H A V E Z , D E V E LO P M E N T S E R V I C E S M A N A G E R

M E L E C I O P I C A Z O, E C O N O M I C D E V E LO P M E N T C O O R D I N A TO R S U B J E C T :P U R C H A S E A N D S A L E A G R E E M E N T TO S E L L A 6 5 0 S Q U A R E F O OT

P O RT I O N O F A C I T Y-O W N E D LOT W I T H A S S E S S O R 'S PA R C E L N U M B E R 10 46 -59 2-2 4

R E C O M M E N D E D A C T I O N
I t i s recom m en d ed th at th e C i ty C oun cil consid er an y p rot est s an d ad op t a Resolu tion; wh ich ap p roves a P u rchase an d S al e A g reem en t (“P S A”) t o s ell a 65 0 sq u are foot p orti on of a p arcel (th e “Lot ”) w it h A P N : 1 04 6-5 92 -24 (d eem ed “exem p t surp lus lan d ”) to t he own er of con tig u ous lan d at 10 1 N . 2 nd Avenu e in Up lan d , with A P N 10 46 -59 2-2 3

G O A L S T A T E M E N T
Th e p rop osed act ion su p p ort s th e C i ty’s g oal to en s u re th e econ om ic vit ali ty of D own town , b y su p p ortin g a d iverse m i x of u ses in th e d ow nt ow n, in cl ud in g en t ert ain m en t, res tau ran t, an d neig h b orhood serving u ses. F urth erm ore, it sup p orts the C ity’s g oal to facilitate the recru itm en t, reten tion, or exp an si on of d esirab le ret ail b u si nesses. I n ad d it ion , th e action su p p orts th e C it y’s g oal to com p l y w ith th e S tat e’s S u rp lu s Lan d A ct, G overn m en t C od e S ections 54 22 0 et seq . for the p urp ose of d isp osing C ity-own ed surp lus lan d .

B A C K G R O U N D
Th e C it y s eeks to sell t h e Lot t o M ark D avid son, d oi ng b u s in ess as U p lan d E xecu ti ve O ffices, L LC . T he p u rchase p rice for th e Lot i s $1 5,0 00 wh ic h refl ect s th e Fai r M arket V alu e of th e L ot, as ap p rai sed b y t h e C it y. Th e C i ty curren tly ow ns th e L ot in fee si m p le as p art of A P N 1 04 6- 59 2-2 4. E xh ib it A of t h e att ach ed Resolution sh ow s in red d ash es th at p ortion of A P N 1 04 6- 59 2-2 4 wh ich is to b e tran sferred to the own er of contig uou s land at 1 01 N . 2n d Aven ue in Up lan d with A P N 10 46 -59 2-2 3.

O n M ay 9 , 20 22 , th e C ity ap p roved Resol u t ion N o. 66 50 d eclarin g th e L ot as exem p t from the S u rp lu s Lan d A ct u nd er G overn m en t C od e s ect ion 5 42 21 (f )(1 )(B ). O n M ay 23 , 2 02 2, t he C ity ap p roved Res olu ti on N o. 6 6 5 7 n oti ci n g it s i n t en t to s ell th e L ot an d s ett in g a d ate an d tim e to hear p rot est on such sal e. O n J un e 1 , 20 22 , th e C it y received con firm ation from t he C aliforn ia D ep artm ent of H ou si n g an d C om m u ni ty D evelop m en t (“H C D ”) c on fi rm in g th e Lot q ualifies as exem p t surp lus lan d (Attachm ent C ).

Th e C it y h as n oticed i ts i n t en t to sel l th e L ot, in ac cord an ce with i ts ob li g at ion s u nd er G overn m en t C od e S ection s 3 74 20 -37 43 0 (the “A lternative Lan d D isp osition p rocess”).

Th e C it y is hearin g p rotes t on t h e d ate an d ti m e set in it s resolution : J u n e 13 , 2 02 2 at 7:0 0 P.M , or as soon thereafter, w ithin the C oun cil C ham b ers at Up lan d C ity H all. Th e p rotest hearin g will occur on the sam e d ay th at the C ity con sid ers ap p roval of the P S A .

I S S U E S /A N A L Y S I S
Th e Lot is com p ris ed of an existing C it y-ow ned land scap ed p lan ter wi th in t h e p u b l ic p arkin g lot w ith A ssessor Parcel N um b er A P N : 10 46 -59 2-2 4. At 65 0 sq u are feet, th e L ot p rovid es little op p ortun ity for th e C ity, an d is too sm all for the con st ru ct ion of hou sing , as con tem p l ated b y th e S u rp lu s Lan d A ct.

Th e D ep artm en t of H ou sing an d C om m u ni ty D evelop m en t (H C D ) h as g iven p erm is si on to the C ity t o p roc eed w it h t h e sal e of t h e L ot as exem p t from th e S u rp lu s L an d A ct in an H C D letter d ated J un e 1, 2 02 2.

C om m en su rate w i th it s p ow ers u n d er th e A l tern at ive Lan d D i sp osi ti on p rocess d escrib ed in G overn m en t C od e S ection 37 42 0 et seq ., th e C i ty d eclared i ts in ten t to s ell it s title to t h e L ot, w hich it hold s in fee sim p le, to the ow ner of con tig u ous land at 1 01 N . 2nd Avenu e in Up lan d w ith A P N 1 04 6-5 92 -23 . Th e C i ty i s s ell in g t h e Lot b ec au s e th e p u b l ic in terest an d con venience req u ire t he sal e. S u c h a sale i s in t h e p ub lic’s int erest and c on ven ien ce b ecau se th e l ot curren tly is a source of u n d eru t il ized sp ace, too sm all to construct n ew facil it ies or hou sing , an d can b e p u t to a h ig h er use as an ext en s ion of ou td oor d ining s p ac e for C ity resid ents, creatin g ad d itional econ om ic activity and reven ues for the C ity.

S taff cau sed Resol u t ion N o. 6 65 7, w h ic h not iced C it y’s i n t en t t o sel l, t o b e p u b l ished at least once i n a d aily n ews p ap er p ub lish ed an d circulated i n th e C ity. S t aff p osted for not l ess th an ten (10 ) d ays in at least th ree (3) c ons p i cu ous p l aces on th e Lot . Th is m eets th e C ity’s ob lig ations un d er G overn m en t C od e S ection 37 42 3.

P rotest on th e sale of th e L ot will b e h eard on the sam e d ay th at the C ity con sid ers ap p roval of th e P S A . T he C it y C lerk h as n ot received p rotests, b oth oral or writ ten , p rior t o t he p lann ed d isp osition in accord an ce w it h th e req u irem en ts of th e A lt ern ati ve Lan d D is p os it ion p rocess.

Th e C it y s hal l h ol d a hearin g of an y p rotests on J un e 1 3, 20 22 at 7:0 0 P.M or as soon th ereafter. T hi s p rotest p roc ed u re w ill t herefore b e i n com p lian ce wi th the req u irem en ts of G overn m en t C od e S ection s 37 42 4 and 3 74 25 . I f th e C ity receives any p rotests, the sale of th e L ot via th e P S A req uires a four-fifth vote (a su p er m ajority) of th e C ou ncil for ap p roval.

O n M ay 25 , 20 22 , th e P l an n in g C om m is si on p ass ed an d ap p roved P lan n i n g C om m ission Resolution N o. 49 66 fin d ing t hat t h e location , p urp ose, an d exten t of th e d is p os it ion con form s w ith U p lan d ’s G en eral P lan , in con form it y w ith the req u i rem en t s of G overnm ent C od e S ection 65 40 2.

Th e Resol ut ion of t he C ity ap p rovin g th e sal e of t he L ot vi a P urch ase an d S ale A g reem ent is exem p t from en vironm ent al review p u rsu an t to th e C al iforni a E n vi ron m en tal Q u al it y A c t (P u b .

Resou rces C od e, § 21 00 0 et s eq .) (“C E Q A”) an d S tate C E Q A G u id elines (C al. C od e Reg s . Tit. 14 , § 1 5 3 0 1 ), th e C las s 1 E xem p ti on for E xis ti ng Facil it ies, wh ich ap p lies to th e “the op eration, rep air, m ain ten ance, p erm itting , leasing , licensin g , or m inor alteration of existin g

p u b lic or p ri vate st ru ct ures, fac il it ies , m ech anical eq u ip m en t, or t op og rap h i cal features, in volving neg lig ib le or n o exp ansion of exis ti ng or form er u se.” T he s ale of th e P rop erty t o the ow ner of th e con tig u ous p arc el for p urp oses of outd oor d in in g sp ace p rovid es an ad d ition al 65 0 sq u are feet to an existing s tru c tu re, wh ich is les s than ei th er 5 0 p ercen t of th e floor area of th e existing stru cture or 2 ,50 0 sq u are feet, w hich ever is less.

F I S C A L I M P A C T S
Th e G en eral F u n d w il l u lt im atel y rec eive t h e l an d sal e p roceed s of $15 ,00 0 an d will b e resp on sib le for on e-h al f of t he esc row fees, record i ng fees an d t he d ocum ent ary tran s fer taxes associated w it h t h e transaction . I n ad d it ion , t he p u rch aser will p rovid e a d ep osit of $10 ,00 0 w hich w il l b e ap p lied to all cos ts associated wi th d i sp osi ti on of th e sub ject si te in cl ud in g leg al fees, ap p raisal, lot lin e ad ju stm en t an d the relocation of an S C E p ower p ole.

A L T E R N A T I V E S
P rovid e altern ative d irection to staff.

AT TAC HM E NT S :

Description
AT TAC HM E NT A: RE S O L UT IO N
AT TAC HM E NT B: P urchase and Sale Agreement
AT TAC HM E NT C: J UNE 1, 2022 "E X E M P T S URP L US L AND" L E T T E R F RO M HC D

RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

UPLAND, CALIFORNIA, APPROVING THE EXECUTION OF A

PURCHASE AND SALE AGREEMENT WITH UPLAND

EXECUTIVE OFFICES, A CALIFORNIA LIMITED LIABILITY

COMPANY, FOR THE SALE OF CERTAIN REAL PROPERTY
ADJACENT TO 101 N. 2ND AVENUE, UPLAND, CALIFORNIA
WITH APN 1046-592-23 AND FINDING THE SAME

CATEGORICALLY EXEMPT FROM CALIFORNIA

ENVIRONMENTAL QUALITY ACT REVIEW

WHEREAS, the City of Upland (“City”) currently owns in fee that certain real property, measuring approximately 650 square feet in area, which is a portion of the parcel with Assessor Parcel Number: 1046-592-24 and adjacent to the property with the address of 101 N. 2nd Avenue, Upland, California, 91786, more specifically described within Exhibit A (“Property”); and

WHEREAS, the City intends to sell the Property by executing a Purchase and Sale Agreement in a form substantially similar to Exhibit “B” attached to this Resolution and incorporated by reference herein (“PSA”) with Mark Davidson, doing business as Upland Executive Offices, LLC, a California Limited Liability Company (“Purchaser”); and

WHEREAS, on May 9th, 2022, the City Council passed and approved Resolution No. 6650 declaring the Property as exempt surplus land; and

WHEREAS, California Government Code Section 54220, et seq. (the “Surplus Land Act”) requires that, prior to the disposal of any surplus land, unless an exemption applies, a local agency must provide notice to, among others, affordable housing developers, and thereafter negotiate in good faith for ninety (90) days with any parties who submit a notice of interest; and

WHEREAS, the City submitted exempt surplus land documentation for review by the Department of Housing and Community Development (“HCD”) in compliance with the Surplus Land Act procedures required by law, and received consent from HCD to proceed with the sale of the Property pursuant to Resolution No. 6650 and finding the Property “exempt surplus land” in a letter sent to the City on June 1, 2022; and

WHEREAS, on May 25, 2022, the Planning Commission passed and approved Planning Commission Resolution No. 4966 finding that the location, purpose, and extent of the disposition conforms with the General Plan in conformity with the requirements of Government Code Section 65402; and

WHEREAS, California Government Code Sections 37420 through 37430 authorize the City to dispose of Property; and

Resolution No.

WHEREAS, on May 23, 2022, the City Council passed and approved Resolution No. 6657, which declared the City’s intent to sell the Property and announced a public hearing scheduled for Monday, June 13, 2022 at 7:00 P.M. or as soon thereafter in order to hear any protests to the sale in City Hall Council Chambers; and

WHEREAS, on June 13, 2022, the City Council accepted and heard any protest to the sale in accordance with the requirements of the Alternative Land Disposition process, before approving the Purchase and Sale Agreement. Pursuant to Government Code section 37425, if any protests are received, the PSA must be approved by a four-fifths vote of the City Council.

NOW, THEREFORE, the City Council of the City of Upland does hereby resolve, find, determine, and order as follows:

Section 1. RECITALS. The foregoing recitals are true and correct and are incorporated herein and made an operative part of this Resolution.

Section 2. APPROVALS. The City Council hereby approves sale of the Property to the Purchaser for valuable consideration and directs the City Manager to execute the attached PSA and do or cause their designees to do any other actions necessary to carry out the intent of this Resolution. The City Manager is authorized to make minor modifications to the PSA that fulfills the intent of the parties, with consultation from the City Attorney’s Office. The City Council hereby finds that the sale of the Property to the Purchaser is in the best interest of the City.

Section 3. PUBLIC CONVENIENCE AND NECESSITY FINDINGS. The City Council of the City hereby finds and determines that public convenience and necessity require the sale of the Property. The factors demonstrating that the public convenience and necessity require the sale of the Property include but are not limited to the following: the Lot currently is a source of underutilized space, too small to construct new facilities or housing, and can be put to higher use as an extension of outdoor dining space for City residents creating additional economic activity and revenues for the City.

Section 4. CEQA. The City determines that this Resolution and the actions authorized hereunder are exempt from environmental review pursuant to the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (“CEQA”) and State CEQA Guidelines (Cal. Code Regs. Tit. 14, § 15301). Specifically, the Class 1 Exemption for Existing Facilities, which applies to the “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use.” The sale of the Property to the owner of the contiguous parcel for purposes of outdoor dining space provides an additional 650 square feet to an existing structure, which is less than either 50 percent of the floor area of the existing structure or 2,500 square feet, whichever is less.

Resolution No.

Section 5. NOTICE OF EXEMPTION. The City Council hereby directs staff to prepare, execute and file with the San Bernardino County Clerk a Notice of Exemption within five working days of the approval of this Resolution.

Section 6. CUSTODIAN OF DOCUMENTS. The custodian of documents constituting the record of proceedings for this matter is the City Clerk’s Office. The documents constituting the record of proceedings for this matter are located at City Hall at 460 N. Euclid Avenue, Upland, CA 91786.

Section 7. SEVERABILITY. If any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable.

Section 8. EFFECTIVE DATE. This Resolution shall become effective immediately upon its adoption.

PASSED, APPROVED and ADOPTED this 13th day of June, 2022.

Bill Velto, Mayor

I, Keri Johnson, City Clerk of the City of Upland, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 13th day of June, 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAINED:

ATTEST:

Keri Johnson, City Clerk

EXHIBIT “A”

DESCRIPTION OF PROPERTY

REAL PROPERTY IN THE CITY OF UPLAND, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, MEASURING 650 SQUARE FEET IN AREA, WHICH IS A PORTION OF THE PARCEL WITH ASSESSOR PARCEL NUMBER: 1046-592-24 AND ADJACENT TO THE PROPERTY WITH THE ADDRESS OF 101 N. 2ND AVENUE, UPLAND, CA, 91786, DESCRIBED AS FOLLOWS:

For the avoidance of doubt, the portion of APN 1046-592-24 demarcated by red dashes is the land which is the subject of this Resolution.

EXHIBIT “B”

PURCHASE AND SALE AGREEMENT

46708.00207\40043627.6

REAL PROPERTY PURCHASE AND SALE AGREEMENT

AND JOINT ESCROW INSTRUCTIONS
(101 N. 2nd Street)
by and between
City of Upland
a Municipal Corporation
and
Upland Executive Offices, LLC (Mark Davidson)
a Limited Liability Company
[DATED AS OF JUNE 13, 2022, FOR REFERENCE PURPOSES ONLY]

46708.00207\40043627.6

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REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW

INSTRUCTIONS
(101 N. 2ND STREET)
This REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (101 N. 2nd Street) (“Agreement”) is dated as of June 13, 2022, for reference purposes only, and is entered into by and between City of Upland, a Municipal Corporation (“Seller”), and Upland Executive Offices, LLC (dba Mark Davidson), a Limited Liability Company (“Buyer”). Seller and Buyer enter into this Agreement with reference to the following recitals of fact (each, a “Recital”):

RECITALS
A. Seller is the owner of certain real property located in downtown Upland, comprised of an existing landscaped planter within the public parking lot of Assessor Parcel Number APN:
1046-592-24 and is 650 square feet in size (specifically defined in Section 1 of this Agreement as the “Property”) The adjacent property owner at 101 N. 2nd Avenue is opening a gastropub restaurant within the adjacent 2,500 square foot building and requires the construction of an outdoor covered seating area behind the building to provide more seating and an outdoor dining experience.

B. On May 9, 2022, the City Council approved a resolution declaring the 650 square foot portion as exempt surplus land and not necessary for City’s use, to be sold to the owner of contiguous land at 101. N 2nd Avenue.

C. This Agreement implements the goals and objectives of Seller for the development of the Property, increases business development in the area, alleviates conditions of economic and physical blight in the historic downtown area of the City and creates additional job opportunities for City residents.

D. Seller has also determined that the public benefit of this Agreement outweighs any private benefit arising from this Agreement.

NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND COVENANTS

OF SELLER AND BUYER SET FORTH IN THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, SELLER AND BUYER AGREE, AS FOLLOWS:

TERMS AND CONDITIONS

1. DEFINITIONS

1.1 Definitions. The following words, terms and phrases are used in this Agreement with the following meanings, unless the particular context or usage of a word, term or phrase requires another interpretation:

46708.00207\40043627.6

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1.1.1 Affiliate. Any other Person, directly or indirectly, Controlling or Controlled by or under common Control with the specified Person.

1.1.2 Agreement. This Real Property Purchase and Sale Agreement and Joint Escrow Instructions (101 N. 2nd Street) by and between Seller and Buyer, including all of the attached exhibits.

1.1.3 Approval. Any license, permit, approval, consent, certificate, ruling, variance, authorization, conditional use permit or amendment to any of the foregoing, as shall be necessary or appropriate under any Law to commence, perform or complete any construction on or development of the Property.

1.1.4 Bankruptcy Law. Title 11 United States Code or any other or successor State or Federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee, bankruptcy, composition, insolvency, moratorium, reorganization or similar matters.

1.1.5 Bankruptcy Proceeding. Any proceeding, whether voluntary or involuntary, under any Bankruptcy Law.

1.1.6 Business Day. Any weekday on which Seller is open to conduct regular municipal functions with Seller personnel.

1.1.7 Buyer. Upland Executive Offices, LLC (dba Mark Davidson), a Limited Liability Company and any assignee of or successor to the rights, powers or responsibilities of Upland Executive Offices, LLC allowed under this Agreement.

1.1.8 Buyer Official Action. A certification of LLC authority in substantially the form attached to this Agreement as Exhibit “B” signed by all of the Managers of Buyer.

1.1.9 Buyer Title Policy. A standard CLTA owners’ policy of title insurance issued by the Title Company, with coverage in the amount of the Purchase Price, showing title to the Property vested in Buyer, subject only to Permitted Exceptions.

1.1.10 CEQA. The California Environmental Quality Act, Public Resources Code Section 21000, et seq.

1.1.11 CEQA Documents. Any exemption determination, any Negative Declaration (mitigated or otherwise) or any Environmental Impact Report (including any addendum or amendment to, or subsequent or supplemental Environmental Impact Report) required or permitted by any Government, pursuant to CEQA, for Seller to approve or perform this Agreement or issue any Approval.

1.1.12 City. Defined in Recital A.

1.1.13 City Manager. The City Manager of Seller, or his or her designee or successor in function.