SETTLEMENT AND RELEASE AGREEMENT

SETTLEMENT AND RELEASE AGREEMENT

This Settlement and Release Agreement (“Agreement”) is dated as of January ___, 2020, and is entered into by and between Burrtec Waste Industries, Inc. (“Burrtec”) and the City of San Bernardino (“City”). Burrtec and City may be referred to herein individually as a “Party” or collectively as “Parties.”

1. BACKGROUND RECITALS

1.1. Burrtec and the City are parties to that certain Exclusive Franchise Agreement for Integrated Solid Waste Collection, Processing and Disposal Services (the “Franchise Agreement”), approved by the City on January 25, 2016, pursuant to which Burrtec agreed to provide certain solid waste collection, processing, disposal and street sweeping services to the City, including sweeping of City park parking lots, as part of the residential and commercial rate structure approved by the City.

1.2. A series of disputes have arisen between the City and Burrtec related to performance by the parties of their respective obligations under the Franchise Agreement and under related undertakings. The City contends that Burrtec failed to perform its obligations related to sweeping City park parking lots in accordance with Section 11.8.4 of the Franchise Agreement and assessed monetary penalties against Burrtec totaling

$594,000.00 in accordance with the Franchise Agreement and Burrtec denies that City is entitled to any monetary penalties (“Sweeping Dispute”). Burrtec contends that the City has failed to compensate Burrtec for extra work authorized by City and presently owes Burrtec a total of $927,194.06 (“Payment Dispute”). The Sweeping Dispute and the Payment Dispute are collectively referred to herein as the “Disputes”.

1.3. The City and Burrtec now desire to resolve the Disputes once and for all in order to avoid the expense and delay of adversarial proceedings and without any admission of liability whatsoever and enter into this Agreement for that specific purpose

Against this background and for a valuable consideration, the receipt and sufficiency of which is now acknowledged, the Parties agree as follows:

2. OBLIGATIONS OF THE PARTIES

2.1. Settlement Payment and Dismissal of Claim. Within five (5) days after the complete execution of this Agreement, the City shall (a) pay Burrtec the total amount of

$630,194.00, and (b) issue a letter to Burrtec dismissing its alleged claim for monetary penalties and other relief related to the Sweeping Dispute.

3. RELEASE OF LIABILITY

3.1. Mutual Release. Except for the obligations created under this Agreement, the Parties, for

themselves and for each of their predecessors, successors, parent companies or entities,

subsidiary companies or entities, associated or related companies or entities, heirs,

legatees, devisees, beneficiaries, administrators, executors, trustees, assigns, affiliates,

partners, managers, shareholders, directors, officers, associates, employees, agents,

servants, and representatives (present and former), and all persons who at any time have acted by, through, under, or in concert with any or all of the foregoing persons and entities, now irrevocably and unconditionally remise, release, acquit, absolve and forever discharge one another, and each and all of one another’s predecessors, successors, parent companies or entities, subsidiary companies or entities, associated or related companies or entities, heirs, legatees, devisees, beneficiaries, administrators, executors, trustees, assigns, affiliates, partners, managers, shareholders, directors, officers, associates, employees, agents, servants, attorneys, insurers, and representatives (present and former), and all persons who at any time have acted by, through, under, or in concert with any or all of the foregoing persons and entities, of and from any and all causes of action in law or in equity, debts, contracts, charges, complaints, claims, suits, damages, obligations, promises, agreements, losses, costs, controversies, judgments, and expenses, of every kind whatsoever, whether known or unknown, fixed or contingent, direct or derivative, subrogated or assigned, suspected or unsuspected, that the Parties have or may have, or that they at any time previously had or claimed to have, or that they at any time subsequently may have or claim to have, against any of the released persons or entities by reason of any matter, cause, act, omission, or thing whatsoever relating to the Disputes (collectively, the “Released Claims”).

3.2. Waiver of Unknown Claims. In addition, the Parties now waive all rights and benefits that they now have, or in the future may have, under Section 1542 of the California Civil Code and any law, principle, or rule of similar effect of any state or territory of the United States or under federal law with respect to the Disputes. Section 1542 of the California Civil Code provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

In this connection, the Parties now acknowledge (a) that they are aware that they may subsequently discover facts in addition to or different from those that they now know or believe to exist with respect to the matters covered by this Agreement; and (b) that such different or additional facts, if they exist, may have given or may subsequently give rise to the Released Claims. The Parties therefore affirm that the releases contained in this Agreement have been negotiated and agreed upon in light of that acknowledgment, and they intend, through this Agreement and with the advice of their respective attorneys, fully, finally, and forever to settle and release the Released Claims. In furtherance of such intention, the Parties also affirm that the releases contained in this Agreement shall remain in effect and shall be fully binding notwithstanding the discovery or existence of any additional or different facts.

4. GENERAL PROVISIONS

4.1. Integration. This Agreement constitutes and contains the entire agreement and understanding between the Parties concerning the subject matter addressed herein.

Unless otherwise expressly stated herein, this Agreement supersedes and replaces all

prior negotiations and all agreements, proposed or otherwise, whether written or oral, concerning its subject matter.

4.2. Cooperation. The Parties shall cooperate in performing their obligations under this Agreement, execute all supplementary documents that may be required or convenient to the fulfillment of their obligations, and take all additional actions that may be necessary or appropriate to give full force and effect to the terms and conditions of this Agreement and that are not inconsistent with such terms and conditions. Each Party, diligently and in good faith, shall undertake all actions and procedures reasonably required to carry out the purpose and intent of this Agreement.

4.3. Time Calculations. Time is of the essence to this Agreement. Whenever a time for performance of any act is stated in this Agreement, the time shall be calculated by including all calendar days including Saturdays, Sundays, and legal holidays; provided that, if performance of any act is due on a Saturday, Sunday or legal holiday, then performance of that act may be completed on the next calendar day that is not a Saturday, Sunday or legal holiday.

4.4. Mutual Drafting, Use of Titles. The Parties participated equally in negotiating and drafting this Agreement, and nothing in it shall be construed against any particular Party on the basis that this Agreement was drafted by that Party. Headings and titles are used throughout this Agreement solely for the convenience of the Parties and are not an integral part of it.

4.5. Severability. If any term, condition, or application of this Agreement is held to be invalid, such invalidity shall not affect the Agreement’s other terms, conditions, or applications that can be given effect without the invalid term, condition, or application.

To this end, the Agreement is declared to be severable.

4.6. Waiver/Modification/Remedy Selection. No waiver of any breach of any term or condition of this Agreement shall be, nor shall it be construed to be, a waiver of any other breach of this Agreement, and no waiver shall be binding unless made in writing and signed by the Party waiving the breach. No change in the terms or conditions of this Agreement shall have any force or effect unless expressed in a writing signed by the Parties. A Party’s pursuit or enforcement of fewer than all available remedies in the event of any breach or default under this Agreement shall not preclude that Party from pursuing or enforcing other or all available remedies in the event of any other breach or default under this Agreement unless otherwise prohibited by law.

4.7. Persons/Entities Bound. This Agreement shall be binding on and inure to the benefit of

the Parties, jointly and severally, in every capacity whatsoever, and to their predecessors,

successors, parent companies or entities, subsidiary companies or entities, associated or

related companies or entities, heirs, legatees, devisees, beneficiaries, administrators,

executors, trustees, assigns, affiliates, partners, managers, shareholders, directors,

officers, associates, employees, agents, servants, representatives (present and former),

and all persons who at any time have acted by, through, under, or in concert with any or

all of the foregoing persons and entities.

4.8. Dispute Resolution. If any dispute arises out of or in connection with this Agreement, the dispute shall be prosecuted in a court of competent jurisdiction in the County of San Bernardino.

4.9. Efficacy of Copy; Counterparts. This Agreement may be executed in counterparts, and each executed counterpart shall have the efficacy of a signed original. Photographic duplications of executed counterparts may be used, in the absence of any genuine issue as to their authenticity, in lieu of originals for any purpose. Each Party’s executing signature may be transmitted to the others via facsimile and/or email, and such facsimile or email signature shall have the same effect as an original signature.

4.10. Effective Date. Unless otherwise explicitly set forth above, this Agreement shall take effect immediately upon having been signed by each of the Parties.

4.11. Governing Law. This Agreement shall be governed by, and all rights and liabilities under it shall be determined in accordance with, the laws of the State of California.

4.12. Legal Expenses and Costs. The Parties shall each bear their respective attorneys’ fees and other legal expenses and costs incurred in connection with the Litigation through the Effective Date and incurred in connection with the negotiation and execution of this Agreement. However, in the event any Party must incur legal expenses to enforce any of its rights under this Agreement, the prevailing party in any such proceeding shall be entitled to recover its attorneys’ fees and costs.

4.13. Authority to Bind. Each person signing this Agreement represents that he or she has full legal authority to bind the Party on whose behalf the person signs. Without limiting the effect of the foregoing, the persons signing this Agreement on behalf of the City represents that this Agreement has been duly approved by the City Council of the City.

4.14. Incorporation of Recitals. The Recitals in this Agreement are material and are incorporated by reference as though fully set forth hereat.

FOR BURRTEC WASTE INDUSTRIES, INC.:

Date: ____________________, 2020

BURRTEC WASTE INDUSTRIES, INC.

By:______________________________________

Its:___________________________________

FOR CITY OF SAN BERNARDINO:

Date: ____________________, 2020

CITY OF SAN BERNARDINO

By:______________________________________

Teri Ledoux,

City Manager

APPROVED AS TO FORM:

Date: ____________________, 2020 By:______________________________________

Georgeann Hanna

City Clerk