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HomeMy WebLinkAboutMINUTES - 08161994 - 2.1 2 . 1a, qt THE BOARD OR SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on _August 16, 1994 by the following vote: AYES: Supervisors Smith, Bishop, DeSaulnier, Torlakson, Powers NOES: None ABSENT: None ABSTAIN: None SUBJECT: Keller Canyon Landfill and the Acme Transfer Station V. Alexeeff, Director, Growth Management and Economic Development Agency, presented his recommendations on the franchise agreements and fees for the Keller Canyon Landfill and the Acme Transfer Station, and the recommendations of the Ad Hoc Solid Waste Committee regarding the establishment of a closure fee and County Trust Fund for closure of the Acme Landfill. The Chair noted that a letter dated August 12 , 1994, had been received from Mary Erbez, Mayor, City of Pittsburg, relative to rate issues and controls, and certain conditions within Land Use Permit 2020-89. The following persons spoke: Tom Bruen, Law Firm of Bruen & Gordon, 1990 North California Boulevard, Suite 608, Walnut Creek 94596, who presented a letter on behalf of the Keller Canyon Landfill Company, BFIC, Inc. , and Acme Fill Corporation; Joe Tanner, City of Pleasant Hill, 100 Gregory Lane, Pleasant Hill; Herb Moniz, City of San Ramon, 2222 Camino Ramon, San Ramon; Lance Dow, 2232 Concord Drive, Pittsburg; and Frank Aiello, Citizens United, 1734 Bridgeview, Pittsburg. Board members commented on the various issues associated with the franchise agreements includ ing the rate structure, tipping fee, host community mitigation and closure fees, and funding for the Household Hazardous Waste Collection Program. Following is the synopsis of the motion (a transcript of the motion is attached) : The Board INSTRUCTED the Ad Hoc Solid Waste Committee and the Director, Growth Management and Economic Development Agency (GMEDA) , to work with the cities to address proposals and issues of concern including the closure fee. The Board REFERRED to the Director, GMEDA, the letters of the City of Pittsburg and the Law Firm of Bruen & Gordon, and the issues of the Acme gate rate, the host community mitigation and closure fee, the possibility of an application to LAFCO by the City of Pittsburg to annex the Keller Canyon Landfill, and the proposal to secure the services of experts in the area of solid waste management to assist the County in resolving these concerns. Keller Canyon/Acme Transfer Station Board Order - August 16, 1994 Page 2 The Board APPOINTED Supervisor Torlakson as a Special Ad Hoc Committee to meet with representatives of the City of Pittsburg to discuss host community mitigation and participation through the City's transfer station in host mitigation fees. The following item was brought to the attention of the Board after the Agenda was posted, and the Board unanimously agreed to take the following action: The Board EXTENDED through September 30, 1994, the interim Keller Canyon franchise agreement, it being understood that if a lower offer is given to the Ad Hoc Solid Waste Committee, the franchise would be extended at that lower rate. I hereby certify t,kt this is a true and correct copy of an action taken and entered on the minutes of the Boars, of Supervisors on the date shown. ATTESTED: (^ � PHIL BAf EL��R, Clerk of the Board of Supervisors and CountyAdministrator Deputy cc: Director, GMEDA County Counsel h Transcript of motion, Keller Canyon/Acme August 16, 1994 #2.1 Powers: It sounds like what we have got is a set of a lot of divergent opinions and concerns about the franchise agreements, about the fees, and the like. I want to ask at least - the letter from the City of Pittsburg be referred to the County Counsel for response. There are some serious allegations and they are about Condition No. 12.1 which says the Board under the land use permit, that the Board shall approve all rates charged by the landfill operator at the landfill. Rates established by the Board will only be a maximum, but be a minimum rate. I am not sure how that fits in with our rate setting process. There is also another - there are several points in the letter. One is about the Household Hazardous Waste Collection program that Keller was supposed to establish that. I wonder how that fits in relationship to the fee situation, whether they should be paying for the Program or whether the disposal users - it sounds like, I don't remember this, but it sounds like we required them to put the program together and to fund it as opposed to the rate payers. It doesn't look like we are going to solve this today so I think we need to refer a lot of these issues back to the Committee and to the staff. Bishop: I would like to try to solve something today. I think we have had this franchise agreement before us for about three weeks now. It has gone through that even Mr. Dow kind of likes the way it looks. I think. at this point what we need to do is to plug in some numbers. My view is that the County, as Mr. Tanner says, is going to lose its wastestream to Alameda County. I think that is what I see as the handwriting on the wall. And I see a nod back there. I have met with some of the city managers in the little JPA, and I think, you know, it is my view that that may have to happen to the County. We are not only going to lose $5 million, we will lose the potential $3 million that we could have if we keep the landfill here or keep our waststream directed to our landfill and our transfer station and get our rates competitive. We are going to lose that, and I think that is the handwriting on the wall. I do not want to let today go by without at least trying to get some action. I am going to make a motion to approve the franchise agreements for Keller Canyon Landfill and for the transfer station with the following changes in the recommendation by staff: Establish a County surcharge rate of 12.5 percent - someplace 12.5 percent to be a cumulative surcharge rate for both Keller Canyon and Acme and that the said surcharge base will exclude the Easton fee, the local Household Hazardous Waste fee, and the LUP fees for transportation and open space, but includes all other fees. If we look back at the chart, the fee changes 12 .5 percent. We may not come up with 8. 15, but we will come up with a number. - 1 - This is not part of my motion, just backgound. Powers: Let's make the motion and then you can give us the background. Bishop: The background is that all of these fees in combination at 12 .5 percent we can have host mitigation, we can have a franchise, LEA which is zero in other landfills, resource recovery will be paid out of the franchise and all of the other things go away, but we are limited to that 12 .5 percent. The balance of the recommendation which has to do with household hazardous waste fee of 12 . 12 - that we look at that within six months. I think that gets us to where we have made an attempt to reduce our fees. They are still as high, if not higher than most other landfills. Powers: Is there is second to that motion? The motion dies for lack of a second. Torlakson: Mr. Chairman, on the points that have been raised, I support again in getting the letter of the City of Pittsburg for legal counsel review. I would also like to have us further consider, and I couldn't support the motion that was just on the floor for a number of reasons - all the loose ends that have been previously spoken to; also the fact that it would have basically wiped out the host community mitigation fee, and we did build some protection for the community; and I think I need to see the entire package for the fees before we start dismantling by some percentage formula what are some protections that were built in and agreed to by BFI and Keller originally as the landfill went through the process. We have franchises for collection in parts of the County - both Bay Point, with the Garaventa Company, and Pleasant Hill Bay Shore Disposal, and the Discovery Bay. I would also like to refer to staff to pursue the alternatives that have been informally put foward as well as pursue an actual lower rate with BFI, but to look at this $41.50 proposal that the others are looking at. I know in the small JPA we are part of that discussion process and there was the suggestion made to participate intensively with the cities over the next couple of weeks in reviewing things with them. I think at the same time as we do that, we should look out for our rate payers in Bay Point and Discovery Bay and find out in more detail what the $41.50 includes. As I understand it, it includes an indemnification against potential circular(???) or environmental concerns occurring other counties. If that's so, that is a very important part of the principles we have been discussing is to protect our rate payers from lawsuits and those kinds of long term exposures. 2 - I also think it might be appropriate and would seek the Board's permission to speak on behalf of the Board, at least to try to bring some information, vis a vis, the City of Pittsburg as to what their proposed operation of the transfer station might mean in terms of the revenues they may be considering to collect on top of this base proposal for the City of Pittsburg, and what if any consideration they might have to the issue of the .County revenue loses and the mitigation that the community would have because whether it is zero times a 20% times zero or 12 .5% times zero or 12 . 5% times some number of tons the landfill will still be there in the Pittsburg community. There is a need for some kind of mitigation concerns. Finally, as I look at the different reports that have come back, I see that we continually get more and more need for staff to research different things related to the franchise and the land use permit enforcement, and I am really wondering what level of budget we need for the LEA to do its job so that we don't have to dip into the General Fund. That really was not defined in these reports. So I would like that, if possible, added to some motion or further direction for staff to work on. Smith: I would like to talk a little bit about the Acme franchise. ' I think that the sub-committee did quite good work in straightening out the wording on both franchises to a great extent. I am still troubled by a few things within the Acme structure that have not been addressed at least to my satisfaction, I think need to be addressed before I could support the motion. One thing that I brought up before, and I will put some numbers on it. It bothers me that self-haulers who bring pickup trucks, say for instance to Acme, are charged $85.50 a ton with a closure surcharge added to that, and then that is converted to a cubic yard fee, and that works out to be about $20.40 per cubic yard, but there is a minimum charge of $24. 55. That is very troublesome to my constituents living in Martinez having to deal with the dump for all those years and now dealing with the permanent transfer station, and you can't even take your pickup truck down there and get charged less then $25 essentially. Whereas in other areas they charge typically in the $8 range plus the - some of that solid waste then goes on to be dumped in the east parcel at Acme. I think that is a concern that many of my constituents have. Also, I think the host community mitigation issue needs to be addressed at Acme as well as it does need to be addressed at Keller. I certainly have no problem with having separate fees. I think that makes sense, but I believe the people who live around Acme deserve to have some mitigation of that impact if we are going to be putting all of these trucks through those roads, particularly if we are going to put Waterbird Way through to Howe - 3 - Road. There is going to be a lot of traffic, a lot of garbage, a lot of things blowing in the wind, and those are going to need to be addressed; and I think that needs to be addressed in the franchise agreement. Thirdly, I think that the closure component at Acme needs to be addressed. This Board in previous actions as I just pointed out has taken - has used the authority to charge a surcharge fee on individual haulers, but not charged it on franchise haulers. This argument of inequity with regard to the franchise haulers has come up before and I think it is bunk basically. If Walnut Creek is currently charging a closure surcharge on their hauling franchise, they can prepay the fee at Acme. I don't care. That is fine, but there needs to be some centralized collection and a trust established in order to pay the municipal component of what closure liability there is going to be, and it needs to be charged against the franchise haulers primarily, not just against the individual haulers. The absurdity of it - all of the central County individual haulers which basically boils down to Concord and Martinez residents who on a weekend collect shrubbery or something in their backyard and take it over to Acme are getting charged a closure fee whereas people bringing in tons of material in a franchise truck aren't getting charged a closure fee. That is absurbed. I think those things need to be addressed. I agree with Tom. There are other things that need to be addressed in the Keller franchise and after thinking about this in the subcommittee many hours and many hours over the weekend I just wonder if maybe we don't need some extra help besides the subcommittee and our staff in order to bring this to a conclusion in an expeditious manner. Staff has. been putting in long hours, but as you are all aware we have cut them dramatically and they have got hundreds of other projects that they need to spend time on. I don't think it is doing anybody a disservice to mention none of us are expert in the field of solid waste to the extent that many others are in surrounding communities. I just wonder if the Board could be better served by considering the possibility of bringing in specialty expertise from the outside on a contract basis to try to get us through this, get both of these franchises and all the fees completed and deal with all these complex issues in a rapid way. Powers: There is one thing, I think, that has not been mentioned that needs to be. I think the Keller Interim Franchise expires at the end of the month, the end of August. If I am not mistaken I heard that sometime the last few weeks. Is that accurate? Fujii: I am not sure. I will have to check that. - 4 - Powers: Well, maybe we ought to also extend the authority at least - if there is a requirement to extend their temporary franchise to the end of September because we don't want them - Well it looks like there are a lot of issues. I still have. a lot of points of concern, and I will address the Board or the Committee on those in writing, or the staff. I think this all needs to go back to the Committee, the staff, and I was trying to write down everybody's ideas about what to do.. Bishop: I do have another question. I would like to respond to Supervisor Torlakson to my motion and in doing the math, I did not intend to eliminate host mitigation fees. I think there is an opportunity to capture those within the 12 .5 percent amount, especially for the Pittsburg community. One of the other directions I would like - I don't know if it is appropriate for this body - I think perhaps it is, but I notice another letter with respect to Pittsburg. I understand that Pittsburg has made application through LAFCO or some kind of noise about annexing Keller Canyon, the landfill. I do have a question. What would be a legal basis when an applicant has not requested annexation. That really puzzles me. I certainly did not intend to eliminate the mitigation. Torlakson: I move the points that the Chair enumerated and Supervisor Smith and I put on the floor, Gayle's inquiry about the LAFCO process, as a motion to direct staff to pursue answers to those questions and bring back some additional information to the Board. DeSaulnier: Second. Powers: Let me try to enumerate those. DeSaulnier: With the referral with Joe's request to meet with the city managers and city representatives with the Ad Hoc Committee as soon as possible. Powers: How about this - to work with the cities on the Ad Hoc Committee, the staff, and with Pittsburg regarding other proposals as well as the issue of closure fee and trying to bring some of the issues on line. The other is refer the letters to staff - the Pittsburg letter, Bruen's letter of today or yesterday - also the issue that Jeff raised about consultants or experts to help pull this thing together, the Acme issue gate rate that Jeff raised; the host community mitigation issue, the closure fee issue to staff for review. Also, I think it is appropriate given some of Tom's comments that he be appointed as an ad hoc committee to meet with Pittsburg on the issues that you discussed. One is their concern about host community mitigation 5 - f. laid out in the letter and a previous letter as well as your thought that they may be willing to get through their transfer station to participate in some way with the county in host mitigation fees. Did I forget anything? Bishop: I have a question of Supervisor Smith, and that is what did you contemplate in the way of a landfill consultant. It seems sort of open ended. I really - do you have somebody in mind? Smith: In the past the Board had used the firm of Deloitte Touche for rate setting issues. I think what we are dealing with mostly here is actually legal issues and a little bit of rate setting. I don't know the field exhaustively, but I would bet a lot of money that there is somebody out there that has the legal expertise and rate setting expertise and landfill expertise to be able to help us. I am not criticizing anybody on staff certainly, but it has been a lot of work and trying to force all of these meetings into short periods of time and get all of the background information has been difficult. So I just think it would be useful to maybe make a few phone calls and find out if there is somebody to help. Bishop: Could I request that prior to retaining someone if we are giving direction that we do retain a consultant that we be advised as to whom we are considering and what the qualification Powers: We can have that referred to the Committee and let County Counsel figure out how to do that. Also one thing I forgot to say is extend the interim Keller franchise, if necessary, till the end of September. Smith: With respect to that particular part of the issue, since everybody is wanting to lower rates as rapidly as possible, I wonder if anybody with BFI has authority to give us a lower proprietary rate at this point so that rather than extending ending the current interim fee which is $79 or so, there would be the possibility of lowering it rapidly. So I guess I would ask that in open session and see if there is anybody who has authority to say that, to do that at this point, to lower the - Powers: Can we have them respond to your committee because we are so backed up this morning Torlakson: Could we make that part of the motion that we urge that a rate be dropped if an offer is given to the committee the franchise would be extended to that lower offer, that we would urge BFI to do that. We want that to happen. 6 Powers: Fine. Good, and I hope has all these things, and I would like the Clerk to do the Board Order. I have got them written down here. I will work with you on this and pass them among the Board members. We have a motion and a second on the floor. AYES: 1, 2, 3 ,4, 5 NOES: none Powers: It passes unanimously. 7 - City of Pittsburg Civic Center • P.O. Box 1518 • Pittsburg, California 94565 OFFICE OF THE MAYOR RECEIVED August 12, 1994 pts 6 {994 CIFRK BOARD OF SUPERVISORS The Honorable Tom Powers, Chair CONTRA COSTA CO. Contra Costa County Board of Supervisors 651 Pine Street Martinez, California 94553 Dear Supervisor Powers: Based on recent Board reports, it is our understanding that staff is recommending authorizing a new franchise agreement (termed the "final franchise agreement") while placing a cap on the amount of fees that may be added to the operator's base rates. We believe that the need for these measures may be exaggerated; offering the promise of a lower rate while jeopardizing the ability of the County to collect reasonable monies to mitigate the negative impacts of the landfill. As a result of a disagreement between the County and Keller Canyon Landfill Company over Keller's request for an initial base rate of $46.35 per ton prior to the landfill beginning operations, there was no agreement to an initial base rate or analysis period which were required to be incorporated into the franchise agreement by amendment prior to the landfill beginning operations (Section 1.6 of the franchise agreement). In order to allow Keller to operate, the County instead chose to adopt Amendment Number 1 to the franchise agreement, which established an interim base rate of $33 per ton (plus fees & transfer costs) while the County and operator resolved their outstanding issues. Apparently, these issues have yet to be resolved. Through a series of subsequent amendments, the interim rate has been extended and increased to the current interim base rate of $38.48 per ton (plus fees & transfer costs). However, it is our understanding that the County and Keller have never agreed to the initial base rate or established the analysis period required to make the existing franchise agreement fully operational. It would appear that resolving this issue may be preferential to entering into an entirely new franchise agreement written in part, if not entirely, by the landfill operator. However, should the Board decide to pursue authorizing a new franchise for Keller, while considering a cap on the County's fee levying ability, we would appreciate your consideration of the following issues. California Healthy Cities Project �'A National Center for Public Productivity Exemplary Award - 1993 City of New Horizons Supervisor Powers; Letter August 12, 1994 Page Two Required Approval of Maximum and Minimum Rates Condition 12.1 of Land Use Permit (LUP) 2020-89 reads, in part: The Board of Supervisors shall approve all rates charged by the landfill operator at the landfill. The rates established by the Board will not only be maximum rates but also minimum rates. Unless the LUP is amended prior to authorizing a final franchise agreement for Keller, it appears that any effort to remove rate controls for the landfill as part of the final franchise agreement would be a violation of the use permit -- unless a maximum and minimum base rate is established in any new franchise agreement. Amendment of Land Use Permit The LUP specifies certain fees for mitigating impacts of the landfill. If the Board places a cap on fees through the franchise agreement before amending the LUP, then it will have far less discretion in amending the LUP. An amendment to the LUP should only occur after the appropriate public hearings and CEQA review. Need for Minimum Base Rate We, support reasonable efforts to allow Keller to compete in the open market. However, we believe a minimum base rate will always be needed to ensure that the landfill collects sufficient revenue to cover its operations and maintenance expenses, closure and post- closure costs, and other costs associated with protecting the environment and surrounding community. On July 28, 1992, Keller Canyon Landfill Company proposed an amended initial base rate of $47.16 per ton (plus fees & transfer costs) to cover the costs described above. The Board of Supervisors chose to establish the current interim base rate of $38.48 per ton (plus fees & transfer costs), as recommended by its rate consultants. Subsequently, Browning-Ferris Industries sent letters to Ms. Sarah Hoffman and Mr. Val Alexeeff on August 25, 1993, and August 31, 1993, respectively, telling of "Future Anticipated Costs." While BFI did not expect these costs to be "included in the current interim rate," the company did expect these costs to be considered by the County for inclusion in future rates. Furthermore in the same letters BFI stated "We also estimate Supervisor Powers; Letter August 12, 1994 Page Three that O&M costs for ground water monitoring will increase due to the additional .--'" monitoring_required by the water board order." In fact, Keller has continued to maintain that it needs a higher base rate as recently as the .lune 28, 1994, Board of Supervisors meeting. At that meeting, Mr. Tom Bruen, representing Keller Canyon, told the Board that a $38 base rate was not even enough to r allow the landfill to cover its interest payments and operation and maintenance expenses. Based on this information, we believe that any to effort reduce the minimum base rate at Keller should only be undertaken after a careful rate review. No reduction in the base rate should be allowed unless the landfill operator can adequately demonstrate that their costs have actually decreased since July of 1993, and the additional costs anticipated in the letters of August 25 and 31, 1993, have not materialized. To lower the base rate without this evidence could result in the landfill, which has already been cited for several violations, operating in a manner which poses an even greater threat to the environment and surrounding communities. As I am sure you are aware, allowing Keller to establish its own base rate while agreeing to limit County fees to a certain percentage could place the County in dire financial straits. Under such an agreement, the base rate could be dropped so low that the County's allotted fee percentage would be virtually nil; limiting the County's ability to fund obligations associated with the landfill (described below). We should also point out that the County's current fees are not making the landfill uncompetitive, as asserted by the operator. Although add-on fees at Keller amount to $16.87 per ton (or 21.7% of the total rate), add-on fees on imported waste at Altamont Landfill -- which must comply with the same State and Federal regulations -- amount to approximately $14 per ton (or 41.2% of the total rate). Term of Franchise Agreement We can find no justification for Keller's request to have the term of the final franchise agreement be the estimated life of the landfill in terms of capacity. Based on Section 3.2 of the existing franchise agreement, it would appear that the term ofKeller's franchise agreement is essentially already matched to the term of the landfill unless the landfill operator decides to shorten it. Supervisor Powers; Letter August 12, 1994 Page Four Section 3.1 of the franchise agreement establishes the initial term of the agreement at 25 years. Section 3.2 states that each successive term shall be renewed automatically unless the operator, at its sole discretion, notifies the County that the term shall not be renewed. These successive terms are for periods of 25 years, up to a total of one hundred years or the life of the landfill in terms of capacity, whichever comes first. The assertion made by Mr. Tom Bruen, at the June 28, 1994, Board of Supervisors meeting, that the 25-year term of the current franchise agreement has been a detriment to Keller's ability to compete seems unbelievable. Keller clearly has the option to continue the current franchise agreement for the full life of the landfill. Only Phase I of the five construction phases identified in Keller's Draft EIR have been completed. Costs associated with completing the remaining_construction phases have yet to be discussed in terms of impacting the landfill rate. If the Board decides to remove its authority to control rates at Keller, there is no assurance that the base rate established by the operator will be sufficient to cover the cost of completing landfill construction. If construction Phases 11 through V are not completed, Contra Costa County's ability to demonstrate 15-years of in-county disposal capacity, as required by the California Integrated Waste Management Act, could be seriously impaired. If it were not for the likelihood that Keller's rates would skyrocket (while further jeopardizing the County's ability show adequate disposal capacity), it would seem more appropriate to match the term of the franchise agreement to each phase of landfill construction. ACME Closure Costs On October 7, 1992, Acme Fill submitted a rate application for $90.26 per ton (total rate), which included a charge of $5.92 per ton for closure and post-closure costs at the Acme Landfill. This charge was subsequently disallowed by the Board of Supervisors due, in part, to the fact the County was involved in a lawsuit brought by ACME concerning closure and post-closure funding. Recent court decisions, as well as pending legislation (i.e., Superfund Reauthorization) that would limit municipal liability to 10% of clean-up costs in such cases, may reduce the public's share of ACME's closure and post-closure maintenance cost to substantially less than the $5.92 per ton proposed by Acme. Supervisor Powers; Letter August 12, 1994 Page Five It seems reasonable, however, to assume that some sort of tipping fee will eventually need to be levied to cover a portion of the costs associated with closing the Acme Landfill. This could be initiated by the County, or by the Keller -- as was evidenced by Keller's recent attempt to link lower rates to a long-term wastestream commitment and settlement of the Acme issue. The City of Pittsburg appreciates the Board's action on June 21, 1994, to separate rate issues at Keller from issues involving wastestream commitments and Acme closure-costs, as sought by the Keller's operator. However, we remain concerned that revising Keller's franchise agreement to eliminate rate control while limiting County fees to 20% of the base rate could result in one of two undesirable situations: 1) If Keller is allowed to charge varying base rates without County oversight, jurisdictions which use Keller could be charged for ACME closure costs without their consent. (If this seems unlikely, remember Keller's willingness to cover Acme's closure costs discussed in the preceding paragraph.); or, 2) The County could lose the ability to impose a reasonable Acme closure/post-closure fee at Keller once the Acme lawsuit is settled. Compensation to Homeowners Affected By Keller The property valuation study regarding Keller's impact on property values within the landfill's immediate vicinity is expected to be released this September. However, if the County gives up its rate setting authority for Keller, while placing a cap on the amount of fees that may be added on Keller's base rate, the County's ability to compensate v� homeowners (based on the results of the study) could be substantially limited. At the _ same time, the County would have no ability to require Keller to provide this t reimbursement. City of Pittsburg Mitigation Compensation As you are aware, on July 15, 1994, the City of Pittsburg formally requested that the County enter negotiations to determine mitigation compensation for the negative impacts of Keller Canyon Landfill on the City pursuant to County Ordinance 89-91. These negotiations are currently underway. Supervisor Powers; Letter August 12, 1994 Page Six We would like to point out that the $2 per ton Community Mitigation fee currently included in Keller's gate rate is not intended to fund the mitigation resulting from these negotiations. According to the April 30, 1992, "Landfill Rate Analysis Public Workshop" handout prepared by Deloitte & Touche, this fee is intended for unincorporated areas. It is also worth mentioning, that, if a new franchise agreement is authorized, this fee could be eliminated entirely since it was provided for by an amendment to the current franchise agreement. Again, if the County gives up its rate setting authority for Keller, while placing a cap on the amount of fees that may be added on Keller's base rate, the County's ability to fund this mitigation could be substantially limited, or provided for at the expense of the County General Fund. At the same time, the County would have no ability to require Keller to provide this reimbursement. Mandated Household Hazardous Waste Collection Program Condition 19.3 of Keller's Land Use Permit required the landfill operator to develop a I household hazardous waste (HHW) collection program, complete with a schedule of proposed costs, funding sources, and a public education program. The proposed program was to be submitted to the Community Development and Health Services departments for approval no later than six months prior to the landfill beginning operations. The program was then to be submitted to the Board of Supervisors for consideration and possible implementation. Despite repeated attempts by the City of Pittsburg, County staff have yet to provide a copy of the approved program. We now believe that this condition has been violated; either solely by the landfill operator, or by the operator acting with the cooperation of County staff. In his December 13, 1993, letter to Supervisor Tom Torlakson, Scott Gordon (representing Keller) states that the proposed program was "submitted to the Community Development Department in or about September, 1992. . ." If true, this would appear to be a violation of the LUP since the proposed program was submitted five months after the landfill opened as opposed to six months before the landfill opened. Yet, had the program been submitted as stated by Mr. Gordon, it may have provided an attractive alternative to the Health Services Department's mobile HHW collection program when that program experienced funding difficulty. Supervisor Powers; Letter August 12, 1994 Page Seven Subsequently, County staff to the Keller Canyon Local Advisory Committee was requested to prepare a status report regarding the program in question for the last LAC meeting. At the meeting, staff failed to provide a written report, or copies of the approved program. During an oral report on the subject, staff stated that they had made the determination that the LUP condition requiring the program had been superseded by the development of the mobile collection program. Yet, staff acknowledged that LUP had never been amended to remove this condition. Furthermore, the mobile program did not receive final Board approval until November 17, 1992 -- almost a full year after Keller's proposed program was to be submitted according to the LUP. Previous Board reports.regarding development of the mobile collection program make no reference to the Keller program, thus precluding Board members from a fair evaluation of program alternatives. Requiring the landfill operator to comply with LUP Condition 19.3 at this time would accomplish the following: 1) Provide Contra Costa residents with an ongoing means of disposing of HHW; while, 2) Eliminating $2.12 per ton in County fees from the tipping fee. Presumably, the landfill operator could provide a similar program "at cost", resulting in an overall reduction in the program budget, while incorporating the actual program cost into the landfill's operating expenses. We understand the complexity of the task before you, and appreciate your efforts to provide Contra Costa residents with a low-cost disposal option. As always, we remain available for objective and substantive discussions related to these and other issues associated with Keller Canyon, including innovative approaches to mitigation fees. Please contact our staff if you would like to obtain copies of any the documents discussed in this letter. Thank you for your interest and consideration. Sincerely, Mary , rb a r BRUEN & GORDON .r. A PROFESSIONAL CORPORATION RECEIVED 1990 NORTH CALIFORNIA BOULEVARD SUITE 608 WALNUT CREEK.CALIFORNIA 94596 (510)295-3131 AUG 1 6 19,94 FAX(510)295-3132 CLERK B OF CONTRA COS A CO.ISORS August 15, 1994 Board of Supervisors Contra Costa County 651 Pine Street Martinez, CA 94553 Dear Chairman Powers and Members of the Board of Supervisors: This letter is being written on behalf of the Keller Canyon Landfill Company (the owner/operator of the Keller Canyon Landfill) , BFIC, Inc. (the prospective operator of the Permanent Transfer Station) and Acme Fill Corporation (the owner of the Permanent Transfer Station site) , to raise several concerns about the proposed County surcharge structure discussed in the staff report received by our firm on Friday afternoon. The Need For A Level Playing Field. As the Board of Supervisors has previously noted, there is substantial competition within Contra Costa County for the use of solid waste transfer and disposal facilities. The proposed franchise agreements for the Keller Canyon Landfill and Permanent Transfer Station ("PTS") recognize this fact. Therefore, we believe it is essential to the business viability of our clients that County fees be set at levels that will provide our clients with a level playing field to compete. The Staff Proposal Increases Fees. The proposed surcharge/fee structure will not give our clients the level playing field they need. The staff proposal: * would impose a percentage surcharge (ranging from 15% to 20%) on both Keller and the PTS, * plus an additional $7 . 61 a ton in State and County fees that would not count towards the surcharge amount. It is unknown whether any of the fees making up the $7. 61 will later be reduced. Board of Supervisors August 15, 1994 Page 2 By way of example, assuming the combined proprietary rates at Keller and the transfer station remained at $62 a ton, * a 20% surcharge would raise fees from the current high level of $15.76 a ton to $20. 01 (which would increase to $22 . 01 a ton with the proposed $2 a ton closure surcharge) . * a 15% surcharge would raise fees to $16. 91 a ton (which would increase to $18.91 a ton with the proposed closure surcharge) . The following matrix shows what total State and County fees would be at varying levels of surcharge percentages, using different proprietary rates for both the transfer station and landfill. These total fees below include the proposed $2 a ton closure surcharge: Proprietary Rate 15% 20% $62 $18 . 91 $22 . 01 $50 $17 . 11 $19. 61 $45 $16. 36 $18 . 61 $40 $15. 61 $17 . 61 Fees In Neighboring Counties Are Far Lower. This Board has asked our clients to compete with the Potrero Hills and Altamont landfills. However, total State and county fees at Solano County landfills are only $6. 81 a ton, and Alameda County residents pay $10. 19 a ton (which includes $6 a ton for the Measure D recycling initiative) . As a practical matter, this Board must reduce total State and County fees for Keller and the Permanent Transfer Station to approximately $8 a ton to achieve a level playing field. Lack of A Nexus Between Fees And Impacts. We are particularly concerned with the level of proposed County fees because they do not bear any relationship to specific impacts of the Keller Canyon landfill and the Permanent Transfer Station. The staff report demonstrates that fees collected at Keller and the interim transfer station in the past have funded a wide variety of solid waste programs unrelated to these sites. Also, the proposed fees to be assessed at the Permanent Transfer Board of Supervisors August 15, 1994 Page 3 Station are not authorized in the transfer station use permit, the use for which has long since vested. The Permanent Transfer Station's environmental impacts were fully considered and mitigated in the EIR and Board findings for the PTS use permit. What We Would Like You To Do. The cities in this County are anxious to decide on their disposal options in the next several weeks. The amount of County fees will be a critical item in their determination. While we understand that any potential changes in the Land Use Permit fees charged at Keller Canyon must await consideration by the Planning Commission so that the Board can address these issues in mid- September, it is important that the Board act now to reduce the total fees on solid waste transfer and disposal in this County. Therefore, at least as an interim measure until further examination of County fees can be conducted, we propose that the County reduce the proposed surcharge to 10% or less, and that all State and County fees, including the mitigation fees assessed under the Keller Land Use Permit, be credited towards this percentage amount. Very truly yours, Thomas M. Bruen TMB:jcf Contra •, TO: BOARD OF SUPERVISORS Costa FROM: Ad Hoc Solid Waste Committee �u ttich (Supervisor Bishop and Smit ray DATE: August 16, 1994 SUBJECT: Approve Franchise Agreements for Keller Canyon Landfill and for Acme Permanent Transfer Station and Authorize Actions on County Surcharge and Further Studies SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATION Approve attached Franchise Agreement between the County and Keller Canyon Landfill Company for the Keller Canyon Landfill; Approve attached Franchise Agreement between the County and the operator of the Acme Fill Waste Recovery and Transfer Station; Establish a County Surcharge rate of 15%, 18% or 20% to be a cumulative surcharge rate for both, Keller Canyon Landfill and the Acme Fill Waste Recovery and Transfer Station, the said surcharge base excluding the State Eastin fee, the local County AB 939 fee, the local Household Hazardous Waste fee, and the LUP fees for transportation and open space/agriculture, but including all other county programs, fees, and host community mitigation fees and that the host community mitigation fee is to be directed for use for the communities in which the landfill or the transfer station is located; Declare intent to consider reduction in HHW fee of $2.12 per ton paid at the Landfill and Transfer Station within 6 months pending reaching agreement with other solid waste collection franchising agencies and entities regarding alternative funding mechanisms for HHW collection and processing; Declare intent to consider, review, and possibly reduce the LUP mitigation fees for transportation and open space/agriculture pending recommendation from the County Planning Commission. CONTINUED ON ATTACHMENT: X YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS .UNANIMOUS (ABSENT I HEREBY CERTIFY THAT THIS IS A TRUE AND AYES: NOES: CORRECT COPY OF AN ACTION TAKEN AND ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Charles A. Zahn (510) 646-2096 ATTESTED cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF THE County Council BOARD OF SUPERVISORS AND Growth Management&Economic Development COUNTY ADMINISTRATOR Agency Health Services Department BY: , DEPUTY Acme Fill Corporation / Keller Canyon Landfill Company Enclosure CAz:rw RM/AdHoc.bod � . ° � ' Board Order Franchise Agreements for Keller Canyon Landfill and for Aonnw Permanent Transfer Station August 18' 1984 ' Page 2 ' FISCAL IMPACT The reduction in the County fees will represent a loss of revenues to specific programs and to the County General Fund; the amount of the reduced revenue is contingent upon the size of the wastestrearn received by the Acme Transfer Station and Keller Canyon Landfill and percentage of base rate used to establish fees. Budgets will be evaluated in allocating surcharge. BACKGROUND AND REASONS FOR RECOMMENDATION On August 2' 1994 the Board of Supervisors established an Ad Hoo Solid Waste Committee and directed, by Board <3vder, that this 4d Hoc Committee consider the draft franchise agreements for Keller Canyon Landfill and the Acme Permanent Transfer Station. Additionally, the Board requested that the 4.d Hoc Committee consider removal of rate controls on Keller Canyon Landfill except for mandated State and County fees and providing for a review of government fees every two years. The Board also requested that the Ad Hoc Committee consider setting a franchise fee on the Permanent Transfer Station. The Committee reviewed both franchise agreements on August 8 and 10 and believes the attached franchised agreements reflect Board direction. The Committee requested the staff to present further program budget information to the Board toallow the full Board to determine at what level the County surcharge should be set; this action is necessary tofinalize the franchise agreements. The Board's referral of the LUP mitigations is being made to the County Planning Commission and it is expected that this matter will be on the Board's agenda for September 20' 1394. The AdHoc Committee's consideration for eclosure fee atAcme will bepresented asa separate item for Board consideration. �� RCz3/AdHoc.bod — - ��� COMMUNITY DEVELOPMENT REVENUE AND RESPONSIBILITIES RELATED TO KELLER/ACME Staff has reviewed the budgetary components in the attached memo and find that Acme/Keller support the following County programs. Resource Recovery as detailed 288,000 Administrative response to 5,000 other agencies 293,000 The $293,000, would be the amount the Conservation division would hope to receive from the surcharge. There are additional costs that need to be recovered from Keller/Acme but they should be separated from surcharge requests. Keller and Acme have operation requirements that result in County expenses for phased construction project reviews, inspections for compliance with the Land Use Permit and Environmental Impact Report and other actions in the normal course of business. These costs are based on time and materials expended and are not related to tonnage. For FY 94- 95 this estimated to be $77,000. Such costs are covered by Keller and Acme pursuant to conditions of approval and are not built into surcharge fees. i New facility applications and permitting will be handled through application fees and will not be part of surcharge. Franchises have not been funded from haul franchise fees in the past but it will have to be funded this way in the future if staff work is to continue on obtaining franchise authority in the unincorporated area. Staff work related to Acme closure is proposed to be taken from a funding source related to closure. This amounts to $25,000 for FY 94-95. VA:db keller.t8 attachment FY 1994-5 CONSERVATION DIVISION CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT WASTE FACILITIES AND RESOURCE RECOVERY PROGRAMS PART 1, WASTE FACILITIES PROGRAMS Implementation/Mimmation Monitoring Review, coordinate agencies' reviews, for consistency with Staff Costs $77,000 LUP's Final Development Improvements Plans, and authorize Consultant Costs $45,000 phased construction. Inspect facilities for compliance with LUPs. Staff Keller Local Advisory Committee; attend Acme $122,000 and West County IRRF Local Advisory Committee meetings. Track and report on facilities' compliance with EIRs (State requirement). Respond to inquiries and complaints regarding compliance. For: Acme Fill Waste Recovery and Transfer Station Keller Canyon Landfill West County Integrated Resource Recovery Facility Waste.Facilities Permitting Review and process applications for LUP amendments, and Staff Costs $41,000 associated CEQA documents, for existing and proposed solid Consultant Costs (Applicant waste facilities. Costs) Current activities are: $41,000 Acme composting facility (LUP amendments) IRRF soil remediation facility (LUP amendments) Keller (fee reduction) LUP amendment Potential activities are: C & H landfill (existing) LUP Waste Facility Closures Process CEQA compliance documents for Lead Agencies Staff Costs $108,000 (County Health Services Department or Cal. DTSC) for the Consultant Costs (Applicant closure/post-closure plans for waste facilities located in the Costs) County. Current activities are: $108,000 IT Vine Hill Hazardous Waste Facility Potential activities are: Acme Class III Facilities CCSL Class III Facility WCCSL Class I (Hazardous Waste) Facility WCCSL Class II Facility Administration Communicate with division personnel, Department and County Staff Costs $30,000 managers, and other agencies. Perform Division personnel Consultant Costs (None administration. Prepare budget documents. Represent the Expected) County, Department, or Division at meetings. Respond to Board, CAO, and Grand Jury inquiries. Respond to Public $30,000 Information Act inquiries. Respond to litigation. Discuss formative projects with applicants. Respond to public inquiries. Note: Includes some Resource Recovery and Water Agency Administrative costs. Waste Facility Programs Cost Summary Staff Costs $256,000 Consultant Costs $45,000 $301,000 PART II FY 94 - 95 Proposed Budget Activities for AB 939 and Resource Recovery Monitor & Comment on State Regulations Maintain Regular Contacts with CIWMB Participate in CIWMB Committee Meetings & at CIWMB Board Hearings $ 50,000 Respond to Inquiries from Other Public Agencies and/or Solid Waste Industry on State Regulatory Matters $ 10,000 Develop Local Reporting System in conjunction with cities for State Disposal & Diversion Reporting Requirements $ 25,000 Monitor Implementation of Countywide Integrated Waste Management Plan and its components and prepare and submit required status reports to State $ 25,000 Develop and Implement Waste or Discarded Tire Recovery Program (aimed specifically at reducing costs for collection and disposal) S 35,000** Staff Countywide Recycling HOTLINE Telephone and update computer information data base regarding reuse and recycling businesses S 33,000 Continue Participation in City/County Compost Consortium and Expand Backyard Compost Training $ 30,000** Update, Print and distribute County Waste Reduction & Recycling Guide $ 35,000 Develop & Implement Commercial Office' Paper Recycling Program $ 25,000** Develop & Implement Commercial Source Reduction Assistance Program $ 20,000** Total $ 288,000 Negotiate Waste Collection MOU's or Franchises with Garaventa Enterprises Valley Waste Management Pleasant Hill Bayshore Disposal/BFI and/or Mt. View Sanitary District Central Contra Costa Sanitary District Rodeo Sanitary District Crocket-Valona Sanitary District Kensington Community Serv. Dist Ironhouse Sanitary Dist Byron Sanitary District Bethel Island Mun. Utilities Dist $ 85,000* Complete Waste Collection Rate Review Methodology, discuss with haulers, and finalize with Board of Supervisors S 30,000 I . Conduct Waste Collection Franchise Rate Reviews requested by Garaventa Enterprises and Pleasant Hill Bayshore $ 25,000 Respond to Citizen or other inquiries on waste collection rates, conduct subscription service hearings, prepare informational reports as requested, meet with MACS on solid waste issues (N. Richmond, Dsco Bay, Bay Point, Pacheco) $ 10,000 Total $ 150,000 Part II Total $ 438,000 *County Counsel time/costs are included **These programs are aimed at the largest portions of the wastestream to assure diversion of yardwaste and paper from disposal and achieve AB 939 diversions PART III COST SUMMARY WASTE FACILITIES PROGRAMS $301,000 RESOURCE RECOVERY PROGRAMS $438,000 $739,000 CAZ3:o 8-5.dit t Q: N CW) 0-4 W � xw zw a ep w w o Q � z W � Q. rn �r N O CN 06 r-+ O Cf) N oa � O w � � d M Q C O Q w Q n a s 0 o H 4�a o -^ v 4ca i r 4�a w o `� o c� P• o c io d d p N vi Pu d EW' �d ��, O .� p W � •� a O d c� C*l 00 o CA ;)64 0 CC) O d � 06 60 'Ila CA GCa p. V.A I vr- 00 C-A v 4 Vol PROPOSAL TO CONVERT FEE STRUCTURE TO PERCENTAGE OF BASE RATE (ASSUME 330,000 TONS) Summary of current revenues: Item Current Rate Total Revenue LEA $ 1.00 $ 330,000 Resource Recovery $ 1.00 $ 330,000 Keller Mitigation Review $ 0.15 $ 49,500 Rate Review $ 0.10 $ 33,000 Host Community Mitigation $ 2.00 $ 660,000 Franchise $ 3.90 $1.287.000 $ 8.15 $2,689,500 Proposed 20% cap for $30 base rate $ 6.00 $1,980,000 If 20% cap is established, budgets would have to be revised. RCZ3:KCL-FEE%.TBL TO: BOARD OF SUPERVISORS Cwtra FROM: Ad Hoc Solid Waste Committee 1�sta (Supervisor Bishop and Smith) CO^ DATE: August 16, 1994 SUBJECT: Consider Establishing a Closure Fee and County Trust Fund f.or Closure of the Acme Landfill SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION Adopt one of the following alternatives with regaid to a closure fee for Acme Landfill: A. Establish no fee at this time. B. In addition to the County surcharge rate, establish* a closure fee to be collected at the Permanent Transfer Station only, set fee at $2.00 per ton, direct that the Franchise Agreement include this fee and the requirement that the fee be paid quarterly to the County, further direct that the County should establish a Closure Trust Fund in which the monies will be held until they are to be used as directed by the Board. C. Set a Closure fee for closure of the Acme Landfill to be included as part of the County surcharge on Keller Canyon Landfill and the Permanent Transfer Station. Direct that the County establish a closure trust fund and allocate an amount from the total surcharge to this fund for use upon closure as directed by the Board. FISCAL IMPACT If alternative C is selected, further reduction to the County General Fund and program budgets can be expected. BACKGROUND AND REASONS FOR RECOMMENDATION On August 2, 1994 the Board requested the Ad Hoc Solid Waste Committee to consider establishing a franchise fee and/or closure charge for closure of the Acme Transfer Station. The above alternatives reflect options considered by the Committee. Establishing a method to collect closure costs is independent of issues within current lawsuits. Any funds will remain in a restricted County Account pending outcome of lawsuits. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS UNANIMOUS (ABSENT I HEREBY CERTIFY THAT THIS IS A TRUE AND AYES: NOES: CORRECT COPY OF AN ACTION TAKEN AND ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Charles A. Zahn (510) 646-2096 ATTESTED cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF THE County Council BOARD OF SUPERVISORS AND Growth Management&Economic Development COUNTY ADMINISTRATOR Agency Health Services Department BY: DEPUTY Acme Fill Corporation Keller Canyon Landfill Company CAZ,rw RCZ3/AdHoc2.b*d COUNTY OF CONTRA COSTA STATE OF CALIFORNIA PERMANENT TRANSFER STATION FRANCHISE AGREEMENT August 15, 1994 DRAFT PTS.cov TABLE OF CONTENTS - ACME WASTE RECOVERY AND TRANSFER STATION RECITALS 1 ARTICLE 1. INTRODUCTORY PROVISIONS 2 Section 1. 1 RECITALS INCORPORATION. . . . . . . . . . . 2 Section 1 .2 EFFECTIVE DATE, EFFECT. . . . . . . . . . . 2 Section 1.3 CONDITIONS OF APPROVAL. . . . . . . . . . 2 Section 1 .4 OPERATOR ACKNOWLEDGMENT. . . . . . . . . . 3 Section 1 .5 COUNTY DISCRETION AND INTEREST. . . . . . 4 ARTICLE 2 . DEFINITIONS 4 Section 2 . 1 AGREEMENT. . . . . . . . . . . . . . . . . 4 Section 2 .2 ACTIVITIES REPORT. . . . . . . . . . . . . 4 Section 2 .3 ANALYSIS PERIOD. . . . . . . . . . . . . . 5 Section 2 .4 COUNTY. . . . . . . . . . . . . . . . . . . 5 Section 2 .5 DIRECTOR. . . . . . . . . . . . . . . . . . 5 Section 2 . 6 EMERGENCY. . . . . . . . . . . . . . . . . 5 Section 2 . 7 GATE FEE COLLECTION SYSTEM. . . . . . . . . 5 Section 2 . 8 GATE RATE. . . . . . . . . . . . . . . . . 6 Section 2 .9 HOURS OF OPERATION. . . . . . . . . . . . . 6 Section 2 . 10 HOURS OF ACCESS. . . . . . . . . . . . . . 6 Section 2 . 11 KELLER LANDFILL. . . . . . . . . . . . . . 6 Section 2 . 12 MANDATED FEES. . . . . . . . . . . . . . . 6 Section 2 . 13 OPERATOR. . . . . . . . . . . . . . . . . 7 Section 2 . 14 PERMITS. . . . . . . . . . . . . . . . . . 7 Section 2 . 15 REGULATORY AGENCIES. . . . . . . . . . . . 7 Section 2 . 16 SCHEDULE OF CHARGES. . . . . . . . . . . . 7 Section 2 . 17 SOLID WASTE. . . . . . . . . . . . . . . . 7 Section 2 . 18 SOLID WASTE PROGRAMS. . . . . . . . . . . 9 Section 2 . 19 SURCHARGE. . . . . . . . . . . . . . . . . 9 Section 2 .20 SURCHARGE PAYMENTS. . . . . . . . . . . . 9 Section 2 .21 TRANSFER STATION. . . . . . . . . . . . . 9 Section 2 .22 TRANSFER STATION PROPRIETARY RATE. . . . . 9 Section 2 .23 USE PERMIT. . . . . . . . . . . . . . . . 10 ARTICLE 3 . TERM OF AGREEMENT 10 ARTICLE 4 . PERFORMANCE OF OPERATOR 10 Section 4 . 1 OPERATION OF TRANSFER STATION. . . . . . . 10 Section 4 .2 UNACCEPTABLE WASTE. . . . . . . . . . . . . 10 Section 4 .3 INSPECTION, INVESTIGATION, AND EVALUATION OF SITE. . . . . . . . . . . . . . . . . . . . . . 11 Section 4 .4 PERMITS. . . . . . . . . . . . . . . . . . 12 Section 4 .5 STATUS OF TITLE. . . . . . . . . . . . . 12 Section 4 .6 GATE FACILITIES. . . . . . Section 4 .7 OPERATION OF GATE FEE COLLECTION SYSTEM. 13 Section 4 . 8 FEE COLLECTION. . . . . . . . . . . . . . . 13 Section 4 . 9 . PAYMENT TO COUNTY. . . . . . . . . . . . . 13 Section 4 . 10 HOURS OF ACCESS. . . . . . . . . . . . . . 14 August 15, 1994 -i- DRAFT Section 4 . 11 NONDISCRIMINATORY SERVICE. . . . . . . . 14 Section 4 . 12 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS. . . . . . . . . . . . . . . . . . . . . . . 14 Section 4 . 13 LITTER MANAGEMENT. . . . . . . . . . . . . 15 Section 4 . 14 ENVIRONMENTAL MITIGATION. . . . . . . . . 15 Section 4 . 15 RECYCLING/RESOURCE RECOVERY PROGRAMS. . . 15 Section 4 . 16 ACTIVITIES REPORT. . . . . . . . . . . . . 15 Section 4 . 17 PENALTY SCHEDULE FOR NONCOMPLIANCE. 16 Section 4 . 18 RECORDS. . . . . . . . . . . . . . . 17 Section 4 . 19 HOST COMMUNITY. . . . . . . . . . . . . . 17 ARTICLE 5. PERFORMANCE OF COUNTY 17 Section 5. 1 GATE FEE COLLECTION SYSTEM. . . . . . 17 Section 5.2 INSPECTION OF SCALES. . . . . . . . . 17 ARTICLE 6 . RATES 18 Section 6 . 1 BASE RATE. . . . . . . . . . . . . . . . . 18 Section 6 .2 SURCHARGE. . . . . . . . . . . . . . . . 19 Section 6 . 3 GATE RATE. . . . . . . . . . . . . . . . 19 Section 6 .4 INITIAL SURCHARGE. . . . . . . . . . . . . 19 Section 6 .5 CONTRACTS. . . . . . . . . . . . . . . . . 20 ARTICLE 7 . PERSONNEL 21 ARTICLE 8. UNINTERRUPTED OPERATION 21 Section 8 . 1 ASSURANCE OF UNINTERRUPTED OPERATION. . . . 21 Section 8 .2 LABOR DISPUTES. . . . . . . . . . . . . . . 22 ARTICLE 9 . DEFAULT, REMEDIES 22 Section 9 . 1 FAILURE TO PROSECUTE WORK. . . . . . . . . 22 Section 9 .2 CONVICTION OF CERTAIN CRIMES. . . . . . . . 24 Section 9 . 3 CONDEMNATION. . . . . . . . . . . . . 24 Section 9 .4 RIGHT TO TAKE/RIGHT TO POSSESSION. . . . . 24 Section 9 .5 FORCE MAJEURE. . . . . . . . . . . . . . 25 Section 9 .6 SPECIFIC PERFORMANCE. . . . . . . . . 25 Section 9 . 7 NONEXCLUSIVE REMEDIES. . . . . . . . . . . 26 ARTICLE 10 . INSURANCE AND BONDS 26 Section 10 . 1 WORKERS' COMPENSATION. . . . . . . . 26 Section 10.2 PUBLIC LIABILITY. . . . . . . . . . . 26 Section 10 .3 OTHER INSURANCE PROVISIONS. . . . . . . 27 Section 10.4 FAITHFUL PERFORMANCE SURETY. . . . . . . . 28 ARTICLE 11. GENERAL PROVISIONS 28 Section 11. 1 GUARANTY BY PARENT OR AFFILIATE. . . . . . 28 Section 11 .2 ATTORNEY' S FEES. . . . . . . . . . . 29 Section 11. 3 INDEMNITY AND HOLD HARMLESS AGREEMENT. . . 29 Section 11 .4 ASSIGNMENT. . . . . . o . . 30 Section 11.5 COMPLETE AGREEMENT. . . . . . . . . . . 31 Section 11 .6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. 32 Section 13.7 ARBITRATION. . . . . . . . . . . . . . . . . 32 Section 13 . 8 CONFLICT. o . . . . . . . . . . . 32 August 15, 1994 -ii- DRAFT { Section 11 . 9 CAPTIONS. . . . . . . . . . . . . . . . 33 Section 11. 10 DELEGATION BY BOARD. . . . . . . . . . . 33 Section 11 . 11 SEVERABILITY. . . . . . . . . . . . . . . 33 Section 11. 12 MASCULINE GENDER USED. . . . . . . . . . 34 Section 11. 13 GOVERNING LAW. . . . . . . . . . . . . . 34 Section 11. 14 NOTICES. . . . . . . . . . . . . . . . . 34 August 15, 1994 -iii- DRAFT COUNTY OF CONTRA COSTA STATE OF CALIFORNIA FRANCHISE AGREEMENT FOR THE ACME FILL WASTE RECOVERY AND TRANSFER STATION THIS FRANCHISE AGREEMENT FOR THE ACME WASTE RECOVERY AND TRANSFER STATION (the "Agreement") is made and entered into this , by and between the COUNTY OF CONTRA COSTA (hereinafter "County" ) and BFIC, Inc. , a California Corporation (hereinafter "Operator" ) . RECITALS WHEREAS, the legislature of the State of California has adopted the California Integrated Waste Management Act of 1989, which assigns certain responsibilities for the County's solid waste planning, management, program implementation, and regulation to the Contra Costa County Board of Supervisors; and WHEREAS, on 15 December 1987, the Board of Supervisors of Contra Costa County approved Land Use Permit No. 2122-86 for the Acme Fill Waste Recovery and Transfer Station ( "Transfer Station" ) subject to the applicable conditions of approval, subject to subsequent amendments thereto by the Board of Supervisors; and WHEREAS, the County adopted Ordinance No. 88-81, which provides that a solid waste facility may be operated within the County only upon the approval of a franchise agreement by the County or upon the operator of a solid waste facility entering i August 15, 1994 -1- DRAFT I into a contract with the Contra Costa County Board of Supervisors to operate such facility; and WHEREAS, Operator has requested that the County enter a franchise Agreement with Operator pursuant to Ordinance No. 88- 81; and WHEREAS, recent United States Supreme Court cases decided under the Commerce Clause of the United States Constitution generally prohibiting states and their political subdivisions from erecting barriers to the free flow of solid waste (and thereby discriminating against interstate commerce) significantly affects the solid waste industry, and affects the parties hereto; NOW, THEREFORE, the County and Operator, for and in consideration of the covenants and agreements as hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, do mutually agree as follows : ARTICLE 1 . INTRODUCTORY PROVISIONS Section 1 . 1 RECITALS INCORPORATION. The Recitals set forth above, and all defined terms set forth in such Recitals and in the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if set forth herein in full . Section 1.2 EFFECTIVE DATE, EFFECT. This Agreement is effective on the date mentioned in the first paragraph of page one hereof. Section 1 . 3 CONDITIONS OF APPROVAL. Operator acknowledges and agrees that all of the terms and conditions of the Use August 15, 1994 -2- DRAFT Permit's Conditions of Approval and any amendments thereto, are reasonable, legal and valid and that Operator is barred from any action or proceeding or any defense of invalidity or unreasonableness of said Conditions of Approval and any amendments thereto, and related County decisions. Further, Operator agrees during the period(s) that the Use Permit (and its Conditions of Approval and any, amendments thereto) or this Agreement are in effect, operator will not attack or otherwise assail the reasonableness, legality or validity of any terms and conditions of said documents, ,or of any provisions included in this Agreement. The parties acknowledge that the agreement by Operator in this section is a material consideration for County' s approval of this Agreement. Section 1 .4 OPERATOR ACKNOWLEDGMENT. Operator acknowledges and agrees that this Agreement and the Use Permit (by the incorporation herein of the Use Permit) provide for and allow, among other things, funding for mitigation, provision of closure and post-closure costs, payment to County of annual franchise revenue fees, and otherwise payment to County and reimbursement of County costs for its governmental administration of the project entitlements . It is understood that, among other things, this Agreement provides for Operator's establishment of its proprietary rates to enable Operator to compete in :,a solid waste disposal market that has become highly competitive as a result of recent United States Supreme Court decisions . August 15, 1994 -3- DRAFT it Section 1 .5 COUNTY DISCRETION AND INTEREST. Notwithstanding any other provision of this Agreement, Operator acknowledges that County's discretion to grant, approve or deny one or more nonexclusive or other franchises or similar agreements for others is not limited or abridged in any manner by this Agreement; and that this Agreement does not require the approval of any such other franchises or agreements by Operator. County reserves the rights as part of the negotiation and entry of any such other franchise or agreement to enter a public- private or public-public partnership with other owners and/or to pursue any rights of the County to seek ownership of solid waste facilities . ARTICLE 2 . DEFINITIONS Section 2 . 1 AGREEMENT. "Agreement" shall refer to this Agreement and is synonymous for purposes of this Agreement with the word "Contract" . Section 2 .2 ACTIVITIES REPORT. The "Activities Report" is a summary document reporting Operator's activities and overall performance during the preceding Analysis Period or over such period of time as set by the County. The Activities Report shall summarize transfer station related activities as directed by County and may include, but shall not be limited to: compliance with the provisions of this Contract and all applicable Permits and Regulatory Agency Requirements, complaints and corrective actions taken,and any other matter the Board may reasonably require for the proper administration of this Agreement, August 15, 1994 -4- DRAFT f' including, but not limited to, reports relating to resource recovery goals and requirements in connection with the Integrated Waste Management Act of 1989 or any other law, regulation, plan or program. Section 2 .3 ANALYSIS PERIOD. "Analysis Period" refers to the twelve ( 12) consecutive calendar months beginning the first day of January of each year throughout the term of this Agreement. The first Analysis, Period, for the purposes of this Agreement shall begin on the effective date of this Agreement and. shall continue to December 31, 1995. Section 2 .4 COUNTY. "County" shall mean the County of Contra Costa, a political subdivision of the State of California. Section 2 .5 DIRECTOR. "Director" shall mean the County Administrator or his designated deputy, other County officer or employee. Section 2 .6 EMERGENCY. "Emergency" shall mean a sudden, unexpected occurrence involving a clear and imminent danger, demanding immediate action to ,prevent or mitigate loss of, or damage to, life, health, property, or essential public services. Emergency includes such occurrences as fire, flood, earthquake, or other soil or geologic movements, as well as such occurrences as riots, accident and sabotage. Section 2 .7 GATE FEE COLLECTION SYSTEM. The "Gate Fee Collection System" shall consist of all equipment, hardware, and software utilized for purposes of assessing, collecting, and accounting for Tipping Fees for the receipt of Solid Waste at the August 15, 1994 -5- DRAFT I Transfer Station. Section 2 .8 GATE RATE. "Gate Rate" shall mean the per ton fee charged by Operator for Operator' s receipt of Solid Waste at the Transfer Station. The Gate Rate shall be the Transfer Station Proprietary Rate plus Surcharge and Mandated Fees, if any and disposal costs . "Gate Rate" shall be synonymous with "Tipping Fee. " Section 2 . 9 HOURS OF OPERATION. "Hours of Operation" shall be those times during which the use of heavy equipment and. other machinery necessary for operation of the Site in compliance with the Use Permit, the Solid Waste Facilities Permit and this Agreement will be allowed. Section 2 . 10 HOURS OF ACCESS. "Hours of Access" shall be those times during which Solid Waste may be delivered to and received at the Transfer Station. Section 2 . 11 KELLER LANDFILL. "Keller Landfill" or "Landfill" shall mean the Keller Canyon Landfill, approved and operating pursuant to County Land Use Permit No. 2020-89, Solid Waste Facilities Permit No. 07-AA-0032 and other County and other governmental approvals as of the effective date of this Agreement. Section 2 . 12 MANDATED FEES. "Mandated Fees" shall be those monies required from Operator from time to time by any Regulatory Agency for the purpose of funding (a) Federal, State or regional programs, (b) programs required by the Land Use Permit, or (c) other County established fees. August 15, 1994 -6- DRAFT Section 2 . 13 OPERATOR. "Operator" shall mean the holder of the Use Permit or its assignee. Section 2 . 14 PERMITS. "Permits" shall mean any and all governmental approvals, entitlements, clearances or classifications, including but not limited to, the Use Permit, general plan amendments, environmental impact reports, zoning approvals, conditional use permits, waste discharge permits and requirements, facilities permits, permits to operate, permits to construct, closure plans, building permits, encroachment permits, grading permits, tree removal permits, tract/parcel maps and all other governmental permits, consents or approvals as may be necessary to allow Operator to .construct and operate the Transfer Station. Section 2 . 15 REGULATORY AGENCIES. "Regulatory Agencies" shall mean Federal, State and local agencies responsible for regulating the operation and maintenance of transfer stations or sanitary landfills, such as, but not limited to, California Integrated Waste Management Board, California Regional Water Quality Control Board, California Department of Health Services, the Contra Costa County Department of Health Services as Local Enforcement Agency for handling and disposal of Solid Waste, the Bay Area Air Quality Management District and the County.- Section 2 . 16 SCHEDULE OF CHARGES. The "Schedule of Charges" shall mean a comprehensive list of Tipping Fees charged at the Transfer Station. Section 2 . 17 SOLID WASTE. "Solid Waste, " "solid waste" or August 15, 1994 -7- DRAFT "waste" shall have the meaning set forth in Section 40191 of the California Public Resources Code as it may be amended from time to time, as follows: "40191(a) Except as provided in subdivision (b) , 'solid waste' means all putrescible and nonputrsecible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and construction wastes, 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 . " (b) 'Solid wastes" does not include hazardous waste or low-level radioactive waste regulated under Chapter 7 .6 (commencing with Section 25800) of Division 20 of the Health and Safety Code. " (c) 'Solid Waste' does not include medical waste which is regulated pursuant to the Medical Waste Management Act (Chapter) 6 .1 (commencing with Section 25015) of Division 20 of the Health and Safety Code) . Untreated medical waste shall not be disposed of in a• solid waste landfill, as defined in Section 46027 . Medical waste which has been treated and which is deemed to be solid waste shall be regulated pursuant to August 15, 1994 -8- DRAFT this division. " Section 2. 18 SOLID WASTE PROGRAMS. "Solid Waste Programs" shall mean those programs directly related to solid waste which may include: transfer stations, household hazardous waste programs, recycling and resource recovery programs, Agreement and Use Permit administration costs (including legal, engineering, and accounting and other costs of the County) . Section 2 . 19 SURCHARGE. "Surcharge" shall mean a special charge as required by the County and this Agreement, for funding of Solid Waste Programs, closure of landfills in operation prior to 1990 and for franchise fees and other costs as deemed appropriate by the County. Section 2 .20 SURCHARGE PAYMENTS. "Surcharge Payments" shall mean those monies received by Operator as a Surcharge and remitted to the County in accordance with the terms of this Agreement and. of the Permits. Section 2 .21 TRANSFER STATION. "Transfer Station" or "Site" shall mean the Acme Fill Waste Recovery and Transfer Station, commonly referred to as the "Acme Permanent Transfer Station, " the operation of which is approved and authorized by, and subject to, County Land Use Permit No. 2122-86, as amended, this Agreement, Solid Waste Facilities Permit No. 07-AA-0027, and other County and other regulatory agency requirements as of the effective date of this Agreement. Section 2 .22 TRANSFER STATION PROPRIETARY RATE. "Transfer August 15, 1994 -9- DRAFT Station Proprietary Rate" shall mean the proprietary fees charged by Operator for the receipt and acceptance of Solid Waste at the Transfer Station. Section 2 .23 USE PERMIT. "Use Permit" shall mean Contra Costa County Land Use Permit No. 2122-86, together with all Conditions of Approval applicable thereto, including any amendments thereof. ARTICLE 3. TERM OF AGREEMENT The term of this Agreement shall be 25 years from the effective date of this Agreement, subject to renewal for an additional 25-year term, provided the Operator is in substantial compliance with the terms of this Agreement, the Permits and other applicable requirements of Regulatory Agencies . ARTICLE 4 . PERFORMANCE OF OPERATOR Section 4 . 1 OPERATION OF TRANSFER STATION. Operator shall operate the Transfer Station for the receipt, processing and transfer of Solid Waste in strict compliance with, and subject to, the terms and conditions of this Agreement, the Permits and other applicable requirements of Regulatory Agencies . Section 4 .2 UNACCEPTABLE WASTE. Operator shall not allow the receipt of material other than Solid Waste at the Transfer Station unless specially approved in writing by the Director and otherwise allowed by law. It is recognized that some non-- approved materials, including hazardous wastes, may occasionally be unloaded at the Transfer Station by users thereof. Operator shall train its on-site employees to recognize such unacceptable August 15, 1994 -10- DRAFT wastes and materials . In the event that unacceptable waste is deposited at the Transfer Station, it shall be handled . and removed by Operator in accordance with procedures which shall be developed by Operator and submitted to the County for approval prior to any receipt of Solid Waste at the Transfer Station. Nothing herein is intended to relieve the person or persons depositing or causing to be deposited such unacceptable waste from any liability. Operator retains the right to use all legal means to recover costs of removal and alternate disposal or treatment from such person or persons . Section 4 . 3 INSPECTION, INVESTIGATION, AND EVALUATION OF SITE. The Site shall be immediately accessible at all reasonable times to Regulatory Agency officials for any reasonable, lawful and proper purpose. County officials shall usually give reasonable notice to Operator of their intention to visit the Site or if such notice is not given, shall notify Operator's on- site personnel of their presence on the Site. County shall not incur liability arising from the discharge of its inspection responsibilities, either by commission or by omission, except for its tortious conduct or breach of duty resulting in death, injury or property damage while engaged in its inspection responsibilities . The inspection of the work shall not relieve Operator of any obligation to perform under this Agreement. Operator shall remove and replace or repair any work not in compliance with those Permits, laws, ordinances or regulations applicable to the Site. August 15, 1994 -11- DRAFT Section 4 .4 PERMITS. Operator shall obtain and maintain in force all necessary Permits and/or other approvals from the Regulatory Agencies for the Transfer Station. Upon receipt of each such Permit or approval, a copy thereof, together with all conditions or requirements attached thereto, shall be delivered by Operator to the Director. Section 4 .5 STATUS OF TITLE. Operator shall provide to the County reasonable evidence sufficient to establish that Operator is in possession of and/or has the right to Operate the Transfer Station. Section 4 .6 GATE FACILITIES. Operator shall supply, construct and thereafter maintain gate fee collection facilities . The facilities shall be designed and located as necessary so as to expedite the fee transactions and shall be attractively finished. The facilities shall be consistent with the Use Permit for the Site. Operator shall supply, construct, and maintain truck scales as necessary to expedite the fee transactions, prevent traffic back-up, and allow for occasional maintenance and repair. The scales shall be compatible with the Gate Fee Collection System approved by the County, in accordance with Section 5. 1 of this Agreement. The scales shall be open and in working order during all Hours of Access. All waste disposal vehicles shall be recorded by the Gate Fee Collection System. Operator shall make provisions for quick repairs of the August 15, 1994 -12- DRAFT Fx scales by competent technicians to minimize downtime. The scales shall meet all State requirements for design approval and accuracy for State certified scales. Only those scales functioning in accordance with all applicable regulations shall be used. Operator shall obtain the State of California certification for scale accuracy. Operator shall supply, deliver and maintain utilities to the Transfer Station and shall be responsible for all on-site and off-site costs and service charges in connection therewith. Section 4 . 7 OPERATION OF GATE FEE COLLECTION SYSTEM. Operator shall provide and operate the Gate Fee Collection System, including the providing of all labor and materials necessary with respect thereto. Such operation shall be for all Hours of Access. Section 4 . 8 FEE COLLECTION. Operator shall collect, count and account for all Tipping Fees and waste quantities from each customer or user of the Transfer Station. Said fees shall be collected in accordance with all applicable requirements, including Article 6 . In the event that no scale is operable at any given time, vehicles will be charged based upon a flat fee or volume fee schedule established by the parties or by Operator in advance. Operator shall furnish the County with monthly reports on the number and types of vehicles and waste tonnages and/or volumes, as appropriate, of the various types and Gate revenue. Section 4 . 9 . PAYMENT TO COUNTY. Operator shall pay the August 15, 1994 -13- DRAFT i Surcharge Payments required and received in accordance -with Article 6 to the County monthly in arrears. Operator shall pay the Surcharge Payments to County within thirty (30) calendar days after the close of the prior month in which they are collected. Section 4 . 10 HOURS OF ACCESS. Unless otherwise required by the terms of other Permits, Hours of Access shall be those specified in the Solid Waste Facilities Permit. Should the Director declare that an Emergency exists, Operator shall keep the Transfer Station open as instructed to allow for the orderly receipt, processing and transfer of Solid Waste generated or created by such emergency conditions at no add-'tional charge or increase in the Gate Rate. The scheduled Hours of Access may be changed in a manner consistent with permit requirements. Operator may, in its sole discretion, observe the following holidays and close the Transfer Station: New Year' s Day, Easter Sunday, Memorial Day, Independence Day, -Labor Day, Thanksgiving Day and Christmas Day, or other major holiday as approved by the Director. Section 4 . 11 NONDISCRIMINATORY SERVICE. Operator shall provide nondiscriminatory service for Solid Waste receipt, processing and transfer to all users, and shall abide by all Federal, - State and local laws and the Land Use Permit. Section 4 . 12 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS. It shall be Operator's responsibility to provide and maintain all roads required in connection with the operation of the Transfer Station. Haul roads shall be well maintained. The surface August 15, 1994 -14- DRAFT shall be reasonably free from potholes and depressions . Section 4 . 13 LITTER MANAGEMENT. Operator shall maintain and keep the Transfer Station and its access road reasonably free of litter and other refuse. Operator shall be solely responsible for maintaining the Site in a clean and sanitary condition, and shall be responsible for any public nuisance created as a result of its operations . Operator shall control on-site and off-site litter or debris in accordance with the Use Permit and the Solid Waste Facilities Permit. Section 4 . 14 `ENVIRONMENTAL MITIGATION. Operator shall comply with all environmental mitigation measures reasonably and ' lawfully imposed by Regulatory Agencies including those imposed by the Use Permit. Section 4 . 15 RECYCLING/RESOURCE RECOVERY PROGRAMS. Operator shall cooperate with the County and reasonably participate in waste reduction programs of the County, including participation in a County sponsored recycling/resource recovery plan and litter program, implementation of programs in conformance with any County recycling or resource recovery program, plan or element, and/or any other activity which the County deems is appropriate for inclusion in the County Solid Waste Programs . Section 4 . 16 ACTIVITIES REPORT. Operator shall, by the first day of January of each year, assemble and provide to the County the Activities Report for the most recent Analysis Period. August 15, 1994 -15- DRAFT The Board may direct, upon ninety (90) days ' written notice to Operator, that the report provided in the Activities Report be made semi-annually. Section 4 . 17 PENALTY SCHEDULE FOR NONCOMPLIANCE. In the event .that noncompliance by Operator with any condition or provision of this Agreement, or any applicable Permits or Regulatory Agency requirements is determined by the County, County shall notify Operator of the identified noncompliance. Following notification of noncompliance, the Director may impose penalties per noncompliance upon three (3) days notice to Operator in accordance with the following penalty schedule until such time as compliance is achieved: $ 500. 00 per day during the first week of noncompliance $ - 750 . 00 per day during the second week of noncompliance $1,000 . 00 per day during the third week of noncompliance $1,250.00 per day for each day thereafter. At the time the Director imposes any penalties, the amounts due for each day of noncompliance shall be the above amounts subject to annual CPI adjustments, the applicable index to be reasonably selected by the Director. Notwithstanding the above three paragraphs, no monetary penalties will be imposed by the County in the event that Operator and/or said Regulatory Agency are diligently pursuing the process of correction or mitigation of the event(s) causing August 15, 1994 -16- DRAFT noncompliance. Operator shall have the right to arbitrate any action taken by the County under this provision in accordance with Section 11.7 of this Agreement. Section 4 . 18 RECORDS. Operator shall keep separate and accurate records for the Transfer Station as reasonably directed by County for purposes of administering this Agreement. The County may, at its own expense (which may be recovered as a Solid Waste program cost) , at any time during the term of this Agreement, have the books and records of the Operator examined for the sole purpose of verifying Operator's compliance with the requirements of this Agreement. County shall give thirty (30) days ' written notice to the Operator in advance of such examination date. Section 4 . 19 HOST COMMUNITY. Operator shall collect and remit to the County, a host community mitigation fee in the amount of as part of the Surcharge on all solid waste delivered to the Transfer Station. ARTICLE 5 . PERFORMANCE OF COUNTY Section 5. 1 GATE FEE COLLECTION SYSTEM. The computerized Gate Fee Collection System, which shall be provided by Operator in accordance with Section 4 .6 of this Agreement, shall be approved by the County, which approval shall not be unreasonably withheld. Section 5.2 INSPECTION OF SCALES. The County may, from time to time during regular business hours, inspect the scales August 15, 1994 -17- DRAFT and test the accuracy of same. ARTICLE 6 . RATES Section 6 . 1 BASE RATE. The Transfer Station Proprietary Rate shall be determined and established by Operator at its sole discretion. Notwithstanding section 4 . 11, it is understood that the Operator need not charge a uniform Transfer Station Proprietary Rate to all customers, but may vary the Transfer Station Proprietary Rate as between different customers based on various factors determined by Operator, including, but not . limited to, the quantity and type of waste delivered by each customer to the facility and whether each customer has entered into an agreement with the Operator in which the customer agrees to deliver some or all of the customer's future waste stream to the Transfer Station. Operator shall at all times maintain on file with the County, a schedule of Transfer Station Proprietary Rates and Gate Rates, including disposal rates, charged to each customer. The schedule may include a standard Transfer Station Proprietary Rate and Gate Rate which Operator charges unless an agreement is entered, - or other arrangements made. Said schedule of Base and Gate Rates shall be updated within ten days of material modification thereof. Material modifications include, but are not -limited to, changes to any customer's and Transfer Station Proprietary Rate and Gate Rate, and entering of an agreement with a new customer. The schedule shall specify and distinguish between the August 15, 1994 -18- DRAFT Transfer Station Proprietary Rate and the Gate Rate, and shall include all elements of the Gate Rate, including disposal costs. The purpose of this section is to ensure that the rates charged by Operator as well as fees and surcharges imposed by County as well as other governmental agencies are a matter of Public Record, so as to promote cooperation and trust between the Operator, the County, and the public. Towards this end, County may request, and Operator shall provide to County, all information reasonably necessary to effectuate the purpose of this section. Section 6 .2 SURCHARGE. The County may determine and establish at least once every two years, effective on the date determined by the Board of Supervisors, the Surcharge, which shall be added to the then applicable Transfer Station Proprietary Rate, and collected as part of the Gate Rate. Operator will be provided at least ninety (90) days written notice of any newly established Surcharge. In the absence of the County establishing a particular Surcharge amount, the Surcharge to be collected by the Operator for the County shall be thirty percent (30%) of the then applicable Transfer Station Proprietary Rate. Section 6 .3 GATE RATE. The Gate Rate shall consist of the Base Rate, Mandated Fees, Surcharge and disposal costs . Section 6 .4 INITIAL SURCHARGE. Effective on the effective date of this Agreement, the Surcharge shall be: % of the Transfer Station Proprietary Rate less the August 15, 1994 -19- DRAFT amount of all Mandated Fees imposed and received for use by the County with the exception of Mandated Fees imposed for 1) any household hazardous waste program, and 2) any fee imposed pursuant to Public Resources Code section 41901, as said section is amended from time to time, for preparing, adopting and implementing a countywide integrated waste management plan ( "AB 939 Fee") , or any future similar waste management fee. The Surcharge established by this section shall remain in effect for six months from the effective date of this Agreement, after which time the Board may establish a different Surcharge. The Surcharge established by this section shall apply to the Transfer Station Proprietary Rate only. Section 6 .5 CONTRACTS. For all contracts entered for the delivery to and receipt of Solid Waste at the Transfer Station, the Surcharge applicable at the time of the contract shall apply ' for the term of said contract. The parties agree that any later established surcharge amounts shall not apply to waste received pursuant to such Solid Waste contract for the term of said contract. Operator shall advise County of any contract subject to the privileges of this section immediately upon execution. Operator - shall provide County with any and all information requested by County concerning any such Contract, including providing County with copies of such contracts upon request. Operator shall also provide to County upon request, copies of all contracts for the transportation (hauling) and/or disposal August '15, 1994 -20- DRAFT R of Solid Waste transferred at or processed through the Transfer Station. ARTICLE 7 . PERSONNEL Operator shall assign qualified personnel to operate the site as may be required to assure a smooth and efficient operation in compliance with all applicable Permits . The County has the right to request, in writing, administrative action, including the removal of any employee of Operator who violates any provision of this Agreement, or who in the opinion of such requesting party is unsafe, negligent, or discourteous to the public or others in the performance of his/her duties. Upon receipt of such a request, Operator shall immediately take whatever administrative action, which, in . its . judgment, is necessary to resolve the situation. Such action may include removal of that employee from the Site. A Site Supervisor employed by Operator shall be present at the Site at all times that any operations are being conducted thereon. Operator shall file with the Director the names, addresses, and telephone numbers of the Operator representatives who can be contacted at any time in case of emergency. These representatives shall be fully authorized to respond so as to resolve the emergency. ARTICLE 8. UNINTERRUPTED OPERATION Section 8 . 1 ASSURANCE OF UNINTERRUPTED OPERATION. Operator, in entering into this Agreement, assures that it will August 15, 1994 -21- DRAFT provide for the operation of the Transfer Station in an uninterrupted manner for as long as the is useful and usable, except as provided in Section 9 .4 below. Operator acknowledges the hardship that would occur if the Transfer Station is not operated properly or is prematurely closed. The County and Operator recognize that in the ordinary course of events, certain unexpected events may result that may place a burden on the requirement of uninterrupted operation. However, it is the purpose of this Article 8 to establish that it is Operator's obligation to avoid any interruption of operations except for those that- are outside of Operator' s control, as provided by Section 9 .5 of this Agreement. Section 8.2 LABOR DISPUTES. In the event of a labor dispute, Operator shall use its best efforts to keep the Transfer Station open and to operate it in accordance with this Agreement unless a mutually acceptable alternative is agreed upon by Operator and the County. ARTICLE 9 . DEFAULT, REMEDIES Because of the complex nature of this Agreement and the work to be performed hereunder, together with the need for close cooperation and" coordination between the parties, it is not anticipated that either party will declare the other in default under the terms and conditions of this Agreement except as a last resort. However, in the event of any such necessity, the following provisions are made a part hereof. . Section 9 . 1 FAILURE TO PROSECUTE WORK. Should Operator August 15, 1994 -22- DRAFT fail to prosecute the work or any severable part thereof in conformity with the requirements of this Agreement, the Director shall provide written notice to Operator specifying in detail the defect or default in performance (the "First Notice" ) and Operator shall have the right to cure same within a reasonable period of time. If after the First Notice is provided to Operator, the work is not performed in accordance with the Director's specified time frame and a reasonable time to cure so as to ensure its completion in accordance with this Agreement, the Director shall serve further notice (the "Second Notice" ) upon Operator of tY.e County's intention to take further action as provided by law. The Director shall make appropriate and detailed written findings of fact which specify the event of default. No earlier than thirty (30) days after the Second Notice, County shall have the power and ability, if Operator is still in default, to take such actions as provided in law for remedying the same, including the termination of this Agreement. Should the County fail to perform any of its obligations under this Agreement, Operator may declare the County in default after following the same two notice and findings provisions required of the County above. Thereafter, Operator shall have the power and ability, if the County is still in default, to take such actions as provided in law for remedying the same, including bringing suit in a court of appropriate jurisdiction for equitable or legal relief or both. August 15, 1994 -23- DRAFT The foregoing notwithstanding, neither party may bring an action seeking money damages unless it has first provided the other party with 30 days notice of its intention to do so together with written notification of the specific actions which the other party may take to remedy the default which will form the basis for the claim for monetary damages. If the other party in good faith commences the actions specified within the thirty (30) day period, the first party shall not bring the action for damages . Section 9 .2 CONVICTION OF CERTAIN CRIMES. Operator agrees that a single conviction of Operator, its parent, subsidiaries or operators, or their officers or employees at the level of Site operations manager or above, acting within the scope of their employment, of bribery, antitrust, corruption or theft relating to or involving directly the Transfer Station shall constitute an event of a breach of this Agreement subject thereupon to the provisions of this Article unless Operator, promptly initiates and follows through with appropriate disciplinary procedures and - action considering the nature of the offense and resolution by the courts . Section 9 . 3 CONDEMNATION. In addition to any other remedy available to the County, it has the right and authority under law to condemn the Site. Section 9 .4 RIGHT TO TAKE/RIGHT TO POSSESSION. In the event that Operator chooses to no longer operate the Site, Operator agrees that it will give County notice of its intention August 15, 1994 -24- DRAFT to cease operation ninety (90) days prior to the cessation. If, after receiving such notice, County initiates eminent domain proceedings to acquire the Site, Operator agrees that it will not object to or contest County's right to take, or right of possession of, the Site. Nothing contained herein shall constitute a waiver of the right to contest valuation at any stage of the proceedings . County and Operator agree that the provisions of this paragraph may be enforced by means of the remedy of specific performance. Section 9 .5 FORCE MAJEURE. Operator shall not be liable for a default if the failure to perform under the terms and conditions of the Agreement arise out of causes beyond the control or without the fault or negligence of Operator. Such causes may include, but are not limited to, acts of God, or the public enemy, acts of the County in either its sovereign or contractual capacity, fires, floods, earthquakes, epidemics, quarantine restrictions, suppliers ' and vendors ' strikes and all other labor disputes, freight embargoes, and unusually severe weather; but in every case the failure to perform must be beyond the control and without substantial default or negligence of Operator. Operator shall make every reasonable effort to mitigate the effects of said causes . Section 9 .6 SPECIFIC PERFORMANCE. Notwithstanding any other available remedies, the obligations duties and rights of each party under this Agreement shall be specifically enforceable by the other party. August 15, 1994 -25- DRAFT Section 9 .7 NONEXCLUSIVE REMEDIES. The rights and remedies of either party to this Agreement as provided for in this Article 9 shall not be exclusive, and are in addition to any other rights and remedies provided by law or under this Agreement; except that the right of either party to seek monetary damages is limited as provided in Section 11. 1 above. ARTICLE 10. INSURANCE AND BONDS Section 10. 1 WORKERS' COMPENSATION. Operator hereby acknowledges that it is aware of the provisions regarding Workers ' Compensation, Section 3700 of the Labor Code. Operator shall comply with the provisions of such Sec-ion as amended from time to time with regard to its employees and shall supply to the County forthwith upon execution of this Agreement, and annually thereafter, evidence of such compliance. Section 10 .2 PUBLIC LIABILITY. If a willing company can be located by either party hereto, and the premium for the policy or policies required hereunder is reasonable in the opinion of County, Operator shall obtain from a good and responsible company or companies doing insurance business in the State of California, and pay for, maintain in full force and effect for the duration of this Agreement and any extension, a policy or replacement policy of comprehensive liability insurance for the Transfer Station, in which the County is named as an additional insured with Operator. Operator shall furnish a Certificate of Liability Insurance to the Director before execution of this Agreement by ' the County. Notwithstanding any inconsistent statement in the August 15, 1994 -26- DRAFT policy described by the Certificate of Liability Insurance or any subsequent endorsement attached thereto, the protection offered by the policy shall: (a) Include the County, its officers, employees and agents while acting within the scope of their duties under this Agreement, the Use Permit, or any other County ordinance, resolution or other rule relating to the operation of the Transfer Station, as an additional insured covering said duties against all third party claims for negligence; and for indemnification of the County as provided by this Agreement. (b) Provide for a combined single limit policy not less than $10,000,000 per occurrence, combined bodily injury and property damage; such policy may exclude liability for bodily injury and property damage caused by toxic wastes. At every fifth year of this Agreement, this $10,000,000 minimum limit shall be increased as directed by the County but not more than 30% for .each such five year period. Section 10 . 3 OTHER INSURANCE PROVISIONS. All insurance policies required by this Agreement shall bear an endorsement, whereby it is provided that, in the event of expiration, or proposed cancellation of such policy for any reason whatsoever, the Director shall be notified in writing not less than thirty (30) days before expiration or cancellation is effective. Expiration, reduction or cancellation of any insurance policy required by this Agreement without obtaining a replacement policy pursuant to Section 12 .2 to meet the requirements herein August 15, 1994 -27- DRAFT shall be considered a breach of this Agreement by Operator. Operator shall also carry such other insurance as may be required by law. Operator shall be solely liable for any claims or liabilities caused by its failure to maintain insurance required by law. Section 10 .4 FAITHFUL PERFORMANCE SURETY. Operator shall, prior to acceptance of waste at the Site under this Agreement, provide to the County an irrevocable Performance Surety Letter of Credit in the form set forth in Exhibit B hereto guaranteeing Operator's performance of all provisions of this Agreement in an amount of not less than $1,000,000.00. This Letter of Credit may also be utilized to meet the security and performance requirement of the Use Permit. The Director may allow the Performance Guarantee Letter of Credit required pursuant to a franchise between the County and Operator for the operation of the Keller Landfill to additionally guarantee Operator' s performance of all provisions of this Agreement. ARTICLE 11 . GENERAL PROVISIONS Section 11. 1 GUARANTY BY PARENT OR .AFFILIATE. Prior to the Commencement Date, and for all conditions and obligations of this Agreement, ' Operator shall provide to the Director, proof of guaranty by the parent or an affiliate of Operator acceptable to the County, of the performance by Operator of each provision of this Agreement to be performed by Operator. Proof of guaranty shall be in the form set forth in Exhibit C. August 15, 1994 -28- DRAFT Section 11 .2 ATTORNEY'S FEES. In the event of litigation between the parties arising hereunder, each party shall pay and bear its own litigation expenses, including attorney's fees . Section 11. 3 INDEMNITY AND HOLD HARMLESS AGREEMENT. (a) All work and performances by Operator covered by this Agreement shall be at the risk of Operator (b) With respect to third-party claims, Operator agrees to save, indemnify and keep harmless the County, its officers, employees, agents and assign against any and all liability, claims, judgments, • or demands, including demands arising from injuries or deaths of persons and damage to property, arising directly or indirectly out of the obligations herein undertaken by Operator, save and except claims or litigation arising through the sole negligence or willful misconduct of the County, and will make good to and reimburse the County for any expenditures, including reasonable .attorney's fees, that the County may make by reason of such matters and, if requested by the County, shall defend any such suit at the sole cost and expense of Operator. (c) With respect to third-party claims, the County agrees to save, indemnify and keep harmless Operator, its officers, employees, agents and assigns against any and all liability, claims, judgments, or demands, including demands arising from injuries or deaths of persons and damage to property, arising directly or indirectly out of the sole negligence or willful misconduct of the County, and will make August 15, 1994 -29- DRAFT good to and reimburse Operator for any expenditures, including reasonable attorney's fees, that Operator may make by reason of such matters and, if requested by Operator, shall defend any such suit at the sole cost and expense of the County. (d) Should any party successfully challenge the validity of this Agreement or the procedure by which this Agreement was entered into or the validity of any County action which authorizes the County to enter into this Agreement, then in such case the Operator shall have no cause of action for damages or any other relief against County as a result of such successful challenge. In the event of any such legal challenge, Operator shall defend such action or proceeding at its sole expense and Operator shall save and hold County harmless from any claims or awards for third party attorneys ' fees and costs . Section 11.4 ASSIGNMENT. (a) Voluntary. Operator shall not sell, assign, subcontract or transfer this Agreement or any part hereof, or any obligation hereunder, without the written consent of County; provided, however, that Operator may assign this Agreement without the County's consent to any company which it controls, is controlled by, or which is under common control with Operator. As used in this Section, the term "control" with respect to a company, means the beneficial ownership of more than 50% of the voting stock of the company. The term assignment shall include any dissolution, merger, consolidation or other reorganization of Operator, which results August 15, 1994 -30- DRAFT in change of control of Operator, or any sale or other transfer of a controlling percentage of Operator's capital stock. Any attempted assignment not provided for above without such consent shall be void ab initio. (b) Involuntary. Except as may be permitted by paragraph (a) above, no interest of Operator in this Agreement shall be assignable by operation of law. Any such nonpermitted assignment and any of the following acts, each of which are deemed an involuntary assignment, shall provide County with the right to elect to terminate the Agreement forthwith, without suit or other proceeding: ( 1) If Operator becomes insolvent, or makes an assignment for the benefit of creditors; (2) If Writ of Attachment or Execution is levied on this Agreement or other property of Operator such that would have a materially adverse effect on Operator's ability to perform its duties and obligations under this Agreement; ( 3) If in any proceeding to which Operator is a party, a Receiver is appointed with authority to take possession of Operator's property such that would have a materially adverse effect on Operator's ability to perform its duties and obligations under this Agreement. Section 11.5 COMPLETE AGREEMENT. No verbal agreement with any officer, agency, or employee of the County or of Operator nor any contract either before, during, or after the execution of this agreement shall affect or modify any of the terms or August 15, 1994 -31- DRAFT obligations herein contained unless a written agreement, signed by both parties, specifically provides that same is an amendment to this Agreement. Section 11 . 6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. While this contract benefits the public interest throughout Contra Costa County, it is an Agreement between only Operator and the County and, accordingly, only Operator and the County may enforce same. No claims, demands, or causes of action by any entity, party, or person claiming to be a third party beneficiary hereunder shall be enforceable. Section 13 . 7 ARBITRATION. Any controversy or claim submitted to arbitration pursuant to the express provisions of this Agreement, or by mutual subsequent agreement, and arising out of or relating to this Agreement, or the breach thereof, shall be governed by the provisions of Part III . , Title 9 of the Code of Civil Procedure, sections 1280 et seq. as amended from time to time. The arbitration shall be de novo and subject to a de novo appeal or challenge brought in the Contra Costa County Superior Court as to any alleged error of law or as to the admissibility of evidence. California judicial rules of evidence shall apply to the arbitration proceedings. The arbitration decision shall be decided under and in accordance with California law, supported by a preponderance of evidence and in writing in the form of a Statement of Decision pursuant to Code of Civil Procedure Section 632 . Section 13 .8 CONFLICT. This Agreement is intended to August 15, 1994 -32- DRAFT comply with Ordinance No. 88-81 . In the case of any apparent or potential conflict between the provisions of this Agreement and the provisions of the Use Permit or any involved development agreement, the provisions of this Agreement and the Use Permit shall be read together and harmonized to the maximum extent possible to effectuate the intentions of the parties . In the case of any unresolved conflict between the provisions of this Agreement and the provisions of the Use Permit, the provisions of the Use Permit shall control. Notwithstanding any other provision in this Agreement or in the LUP, importation of waste not originating in Contra Costa County shall be allowed as required by recent U.S. Supreme Court cases . Section 11. 9 CAPTIONS. The captions and headings used in this Agreement are for convenience and reference only and are not to be construed as controlling over the text of this Agreement. Section 11 . 10 DELEGATION BY BOARD. The Board may, in its discretion, delegate to a County employee or hearing officer any of its functions expressly or impliedly arising from this Agreement provided that in such case any decision made by such Board, County employee or officer may be appealed de novo to the Board. Section 11 . 11 SEVERABILITY. If any term, provision, covenant or condition ( "provision") of the Agreement or the application of any provision of this Agreement to a particular situation is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this August 15, 1994 -33- DRAFT Agreement, or the application of this Agreement to other situations, shall continue in full force and effect. Notwithstanding any other provision of this Agreement, if any provision of this Agreement in itself or as applied in any particular situation is held to be invalid, void or unenforceable, it is the intention of the parties that the remaining portions of this Agreement shall be continued in full force and effect and that the invalid, void or unenforceable provision be severed therefrom. Section 11. 12 MASCULINE GENDER USED. The masculine gender is some�imes used in this Agreement and is so used for convenience only and is not otherwise intended. Section 11. 13 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Section 11. 14 NOTICES. All notices or other communications ( "Notice") to be given pursuant to this Agreement shall be in writing and shall be deemed given when mailed by registered or certified United States mail, addressed to the parties as follows : To County: County of Contra Costa Attn: County Administrator To Operator: BFIC, Inc. C/O: Boyd M. Olney, Jr. 441 North Buchanan Circle Pacheco, California 94553 With Courtesy as designated by Browning-Ferris Industries of California. August 15, 1994 -34- DRAFT A change in address or a change in the person or title to which Notice is to be given shall be effectuated by Notice to the other party. IN WITNESS WHEREOF, this Agreement is effective on the date first provided on page one hereof. OPERATOR Keller Canyon Landfill Company a California corporation By: President By: Vice-President COUNTY OF CONTRA COSTA By: Chair, Board of Supervisors ATTEST: By: Clerk of the Board APPROVED AS TO FORM: By: County Counsel ltf: 11.acmefrn.dr2 August 15, 1994 -35- DRAFT f�. COUNTY OF CONTRA COSTA STATE OF CALIFORNIA FIRST AMENDED LANDFILL FRANCHISE AGREEMENT KELLER CANYON LANDFILL August 15, 1994 DRAFT kcic.cov TABLE OF CONTENTS - FIRST AMENDED LANDFILL FRANCHISE AGREEMENT RECITALS 1 ARTICLE 1. INTRODUCTORY PROVISIONS 3 Section 1. 1 RECITALS INCORPORATION. . . . . . . . . . . 3 Section 1.2 EFFECTIVE DATE, EFFECT. . . . . . . . . . 3 Section 1.3 CONDITIONS OF APPROVAL. . . . . . 3 Section 1.4 OPERATOR ACKNOWLEDGMENT. . . . . . . . . . . 4 Section 1.5 COUNTY DISCRETION AND INTEREST. . . . . . 4 Section 1.6 USE PERMIT OPERATIVE. . . . . . 5 Section 1.7 NO PREFERENTIAL TREATMENT. 5 ARTICLE 2 . DEFINITIONS 5 Section 2 . 1 AGREEMENT. . . . . . . . . . . . . . . . 5 Section 2 .2 ACTIVITIES REPORT. . . . . . . . . . . 5 Section 2.3 ANALYSIS PERIOD. . . . . . . . . . 6 Section 2 .4 BASE RATE. . . . . . . . . . . . . . . . . 6 Section 2 .5 COMMENCEMENT DATE. . . . . . . . . . 6 Section 2 .6 COUNTY. . . . . . . . . . . . . . . . 6 Section 2 .7 DIRECTOR. . . . . . . . . . . . . . . . . . 6 Section 2 .8 EMERGENCY. . . . . . . . . . . . . . . 6 Section 2 .9 GATE FEE COLLECTION SYSTEM. . . . . . . . . 7 Section 2. 10 GATE RATE. . . . . . . . . . . . . . . 7 Section 2. 11 HOURS OF OPERATION. . . . . . . . . . . . 7 Section 2 . 12 HOURS OF ACCESS. . . . . . . . . . . . . . 7 Section 2. 13 LANDFILL. . . . . . . . . . . . . . . . . 7 Section 2. 14 MANDATED FEES. . . . . . . . . . . . . . . 7 Section 2. 15 OPERATOR. . . . . . . . . . . . . . . . . 8 Section 2. 16 PERMITS. . . . . . . . . . . . . . . . . . 8 Section 2 . 17 POST-CLOSURE MAINTENANCE. . . . . . . . . 8 Section 2 . 18 REGULATORY AGENCIES. . . . . . . . . . . . 8 Section 2 . 19 SCHEDULE OF DISPOSAL CHARGES. . . . . . . 9 Section 2 .20 SITE CLOSURE. 9 Section 2 .21 SOLID WASTE. . . . . . 9 Section 2 .22 SOLID WASTE PROGRAMS. . . . . . . . . . 10 Section 2.23 SPECIAL HANDLING WASTE. . . . . . . . . . 10 Section 2 .24 SURCHARGE. . . . . . . . . . . . . . . . . 11 Section 2 .25 SURCHARGE PAYMENTS. . . . . . . . . . 11 Section 2 .26 USE PERMIT. . . . . . . . . . . . . . . 11 ARTICLE 3. TERM OF AGREEMENT 11 ARTICLE 4. PERFORMANCE OF OPERATOR 12 Section 4 . 1 OPERATION OF LANDFILL. . . . 12 Section 4.2 WASTE STREAM. . . . . . . . . . . . . . . 12 Section 4 .3 WASTE TYPES. . . . . . . . . . . . . . . . 12 Section 4 .4 UNACCEPTABLE WASTE. . . . . . . . . . . . . 12 Section 4 .5 INSPECTION, INVESTIGATION, AND EVALUATION OF SITE. . . . . . . . . . . . . . . . . . . . . 13 August 15, 1994 -1- DRAFT Section 4.6 PERMITS. . . . . . . . . . . . . . . . . . 14 Section 4 .7 STATUS OF TITLE. . . . . . . . . . . . . . 14 Section 4 .8 GATE FACILITIES. . . . . . . . . . . . . 14 Section 4.9 OPERATION OF GATE FEE COLLECTION SYSTEM. 15 Section 4 . 10 FEE COLLECTION. . . . . . . . . . . . . 15 Section 4 . 11 PAYMENT TO COUNTY. . . . . . . . . . . . . 16 Section 4 . 12 HOURS OF ACCESS. . . . . . . . . . . . . . 16 Section 4. 13 NONDISCRIMINATORY SERVICE. . . . . . . 17 Section 4 . 14 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS. . . . . . . . . . .. . . . . 17 Section 4. 15 LITTER MANAGEMENT. . . . . . . . . . . 1.7 Section 4 . 16 ENVIRONMENTAL MITIGATION. . . . . . . . . 17 Section 4 . 17 RECYCLING/RESOURCE RECOVERY PROGRAMS. . . 18 Section 4 . 18 ACTIVITIES REPORT. . . . . . . . . 18 Section 4 . 19 PENALTY SCHEDULE FOR NONCOMPLIANCE. . . . 18 Section 4 .20 RECORDS. . . . . . . . . . . . . . 19 ARTICLE 5. PERFORMANCE OF COUNTY 19 Section 5. 1 GATE FEE COLLECTION SYSTEM. . . . . . . . 19 Section 5.2 INSPECTION OF SCALES. . . . . . . . . 20 ARTICLE 6 . RATES 20 Section 6 . 1 BASE RATE. . . . . . . . . . . . . . . . . 20 Section 6 .2 SURCHARGE. . . . . . . . . . . . . . . . . 21 Section 6 .3 GATE RATE. . . . . . . . . . . . . . . . . . 22 Section 6 .4 INITIAL SURCHARGE. . . . . . . . . . . . . 22 Section 6 .5 DISPOSAL CONTRACTS. . . . . . . . . . . . . 22 ARTICLE 7 . PERSONNEL 23 ARTICLE 8. LANDFILL GAS 24 ARTICLE 9. CLOSURE AND POST CLOSURE 24 Section 9 . 1 CLOSURE RESPONSIBILITIES. . . . . . . . . 24 Section 9.2 FINANCIAL ASSURANCES. . . . . . . . . . . . 25 Section 9.3 PERFORMANCE. . . . . . 25 Section 9 .4 SIGNING OF INSTRUMENTS AND DOCUMENTS. . . . 26 Section 9 .5 FAILURE TO MEET CLOSURE AND POST-CLOSURE OBLIGATIONS. . . . . . . . . . . . . . . . . . . 26 ARTICLE 10. UNINTERRUPTED OPERATION 26 Section 10.1 ASSURANCE OF UNINTERRUPTED OPERATION. 26 Section 10 .2 LABOR DISPUTES. . . . . . . . . . . . 27 ARTICLE 11. DEFAULT, REMEDIES 27 Section 11. 1 FAILURE TO PROSECUTE WORK. . . . . . . . 27 Section 11.2 CONVICTION OF CERTAIN CRIMES. . . . . . . 29 Section 11.3 CONDEMNATION. 29 Section 11.4 RIGHT TO TAKE/RIGHT TO POSSESSION. 29 Section 11.5 FORCE MAJEURE. . . . . . . . . . . . . . 30 Section 11.6 SPECIFIC PERFORMANCE. . . . . . . . . . . 30 Section 11.7 NONEXCLUSIVE REMEDIES. . . . . . . . . . . 30 August 15, 1994 -ii- DRAFT ARTICLE 12 . INSURANCE AND BONDS 31 Section 12 . 1 WORKERS' COMPENSATION. . . . . . . . . . . 31 Section 12.2 PUBLIC LIABILITY. . . . . . . . . . . . . 31 Section 12. 3 OTHER INSURANCE PROVISIONS. . . . . . . . 32 Section 12 .4 FAITHFUL PERFORMANCE SURETY. . . . . . . . 33 ARTICLE 13. GENERAL PROVISIONS 33 Section 13. 1 GUARANTY BY PARENT OR AFFILIATE. . . . . . 33 Section 13.2 ATTORNEY'S FEES. . . . . . . . . . . 33 Section 13.3 INDEMNITY AND HOLD HARMLESS AGREEMENT. . . 34 Section 13.4 ASSIGNMENT. . . . . . . . . . . . . . . 35 Section 13.5 COMPLETE AGREEMENT. . . . . . . . 36 Section 13.6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. 37 Section 13.7 ARBITRATION. . . . . . . . . . . . . . . . 37 Section 13.8 CONFLICT. . . . . . . . . . . . . . . . . 37 Section 13.9 CAPTIONS. . . . . . . . . . . . . . . . . 38 Section 13. 10 DELEGATION BY BOARD. . . . . . . . . . . 38 Section 13. 11 SEVERABILITY. . . . . . . . . . . . . . . 39 Section 13. 12 MASCULINE GENDER USED. . . . . . . . . . 39 Section 13. 13 GOVERNING LAW. . . . . . . . . . . . . . 39 Section 13. 14 NOTICES. . . . . . . . . . . . . . . . . 39 August 15, 1994 -iii- DRAFT COUNTY OF CONTRA COSTA STATE OF CALIFORNIA FIRST AMENDED LANDFILL FRANCHISE AGREEMENT THIS FIRST AMENDED LANDFILL FRANCHISE AGREEMENT (the "Agreement" ) is made and entered into this , by and between the COUNTY OF CONTRA COSTA (hereinafter "County" ) and KELLER CANYON LANDFILL COMPANY (hereinafter "Operator" ) . RECITALS WHEREAS, the legislature of the State of California has adopted the Nejedly-Z 'berg-Dills Solid Waste Management and Recovery Act of 1972 and now has adopted the California Integrated Waste Management Act of 1989, both of which assign certain responsibilities for the County's solid waste planning, management, implementation, and regulation to the Contra Costa County Board of Supervisors; and WHEREAS, on July 24, 1990, the Board of Supervisors of Contra Costa County approved the Keller Canyon Sanitary Landfill Use Permit No. 2020-89 subject to the Conditions of Approval, the Special Land Use Conditions of Approval and the Findings Relative to the Landfill Site Land Use Permit pursuant to the California Environmental Quality Act ("CEQA") and Adoption of a Mitigation Monitoring Program, each of the same date; and WHEREAS, the County adopted Ordinance No. 88-81, which provides that a solid waste disposal facility may be operated within the County only upon the approval of a franchise agreement August 15, 1994 -1- DRAFT by the County or upon the operator of a landfill entering into a contract with the Contra Costa County Board of Supervisors to prepare the site and operate such facility; and WHEREAS, on 4 December 1990 County and Operator entered a LANDFILL FRANCHISE AGREEMENT ("Landfill Franchise Agreement") in accordance with the requirements pf County Ordinance No. 88-81, and to implement the requirements of Land Use Permit No. 2020-89, which Landfill Franchise Agreement has been amended by Amendments Nos. 1 through 10, inclusive, thereto; and WHEREAS, recent United States Supreme Court cases decided under the Commerce Clause of the United States Constitution generally prohibiting states and their political subdivisions from erecting barriers to the free flow of solid waste (and thereby discriminating against interstate commerce) significantly affects the solid waste industry, and affects the parties hereto in that some of the provisions of the Landfill Franchise Agreement, particularly the provisions regarding the County's regulation of rates, may no longer be appropriate or necessary given the current competitive nature of the solid waste industry as a result of said recent Supreme Court decisions; and WHEREAS, the parties now desire to amend certain provisions of the Landfill Franchise Agreement; NOW, THEREFORE, the County and Operator, ' for and in consideration of the covenants and agreements as hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, do mutually August 15, 1994 -2- DRAFT agree as follows: ARTICLE 1. INTRODUCTORY PROVISIONS Section 1. 1 RECITALS INCORPORATION. The Recitals set forth above, and all defined terms set forth in such Recitals and in the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if set forth herein in full. Section 1.2 EFFECTIVE DATE, EFFECT. This Agreement is effective on the date mentioned in the first paragraph of page one hereof, and as of the effective date, replaces and supersedes the Landfill Franchise Agreement, but does not nullify the Landfill Franchise Agreement for the period preceding the effective date of this Agreement. Section 1.3 CONDITIONS OF APPROVAL. Operator acknowledges . and agrees that all of the terms and conditions of the Use Permit's Conditions of Approval and any amendments thereto, are reasonable, legal and valid and that Operator is barred from any action or proceeding or any defense of invalidity or unreasonableness of said Conditions of Approval and any amendments thereto, and related County decisions. Further, Operator agrees during the period(s) that the Use Permit (and its Conditions of Approval and any amendments thereto) or this Agreement are in effect, Operator will not attack or otherwise assail the reasonableness, legality or validity of any terms and conditions of said documents, or of any provisions required to be included in this Agreement by the said Conditions of Approval and any amendments thereto. The parties acknowledge that the August 15, 1994 -3- DRAFT agreement by Operator in this section is a material consideration for County's approval of this Agreement. Section 1.4 OPERATOR ACKNOWLEDGMENT. Operator acknowledges and agrees that this Agreement and the Use Permit (by the incorporation herein of the Use Permit) provide for and allow (among other things) funding for .mitigation, provision of closure and post-closure costs, payment to County of annual franchise revenue fees, and otherwise payment to County and reimbursement of County costs for its governmental administration of the project entitlements. It is understood that, among other things, this Agreement provides for Operator's establishment of its proprietary rates to enable Operator to compete in a solid waste disposal market that has become highly competitive as a result of recent United States Supreme Court decisions. This Agreement also acknowledges that sub-county service areas have not been established. Section 1.5 COUNTY DISCRETION AND INTEREST. Notwithstanding any other provision of this Agreement, Operator acknowledges that County's discretion to grant, approve or deny one or more nonexclusive or other franchises or similar agreements for others is not limited or abridged in any manner by this Agreement; and that this Agreement does not require the approval of any such other franchises or agreements by Operator. County reserves the rights as part of the negotiation and entry of any such other franchise or agreement to enter a public- private or public-public partnership with other landfill owners August 15, 1994 -4- DRAFT and/or to pursue any rights of the County to require ownership of those landfills or this Landfill. Section 1.6 USE PERMIT OPERATIVE. Upon the effective Date of the Landfill Franchise Agreement, the Use Permit became operative pursuant to the conditions of the Use Permit, entitling Operator to all rights and privilege thereunder. Section 1.7 NO PREFERENTIAL TREATMENT. With respect to material terms of the relationship between the County and Operator, the County shall offer to Operator terms at least as favorable as those agreed upon by the County with the operator of any other landfill within the County with whom the County is currently negotiating or may negotiate within the Term of this Agreement. If any such material terms are determined for such other operator subsequent to their determination with respect to Operator, the County shall offer to amend such terms with respect to operator. ARTICLE 2 . DEFINITIONS Section 2. 1 AGREEMENT. "Agreement" shall refer to this Agreement and is synonymous for purposes of this Agreement with the word "Contract" . Section 2.2 ACTIVITIES REPORT. The "Activities Report" is a summary document reporting Operator's activities and overall performance during the preceding Analysis Period or over such period of time as set by the County. The Activities Report shall summarize landfill related activities, including, but not limited to: compliance with the provisions of this Contract and all August 15, 1994 -5- DRAFT applicable Permits and Regulatory Agency Requirements, complaints and corrective actions taken, litter management, landfill gas project update, wastestream volumes and analysis, operations and safety training, recycling/resource recovery efforts, Closure Trust Fund status and balance. Section 2.3 ANALYSIS PERIOD,. "Analysis Period" refers to the twelve ( 12) consecutive calendar months beginning the first day of January of each year throughout the term of this Agreement. The first Analysis Period, for the purposes of this Agreement shall begin on January 1, 1994. Section 2 .4 BASE RATE. "Base Rate" shall mean the proprietary fees charged by Operator to dispose of Solid Waste or any other waste at the Landfill. Section 2.5 COMMENCEMENT DATE. "Commencement Date" shall mean the date upon which the Landfill first accepted Solid Waste for disposal under the terms of the Landfill Franchise Agreement and the Use Permit. Section 2 .6 COUNTY. "County" shall mean the County of Contra Costa, a political subdivision of the State of California. Section 2 .7 DIRECTOR. "Director" shall mean the County Administrator or his designated deputy, other County officer or employee. Section 2.8 EMERGENCY. "Emergency" shallmean a sudden, unexpected occurrence involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. August 15, 1994 -6- DRAFT J Emergency includes such occurrences as fire, flood, earthquake, or other soil or geologic movements, as well as such occurrences as riots, accident and sabotage. Section 2.9 GATE FEE COLLECTION SYSTEM. "The Gate Fee Collection System" shall consist of all equipment, hardware, and software utilized for purposes of, assessing, collecting, and accounting for Tipping Fees for the disposal of Solid .Waste at the Landfill. Section 2 . 10 GATE RATE. "Gate Rate" shall mean the fee charged per ton to dispose of Solid Waste, or other waste at the Landfill. The Gate Rate shall be the Base Rate plus Surcharge and Mandated Fees, if any. "Gate Rate" shall be synonymous with "Landfill Tipping Fee" and "Tipping Fee. " Section 2. 11 HOURS OF OPERATION. "Hours of Operation" shall be those times during which the use of heavy equipment and other machinery necessary for operation' of the Site in compliance with the Use Permit, the Solid Waste Facilities Permit and this Agreement will be allowed. Section 2 . 12 HOURS OF ACCESS. "Hours of Access" shall be those times during which Solid Waste may be delivered to the Landfill for disposal. Section 2 . 13 LANDFILL. "Landfill" shall mean the Landfill described in Exhibit A where the disposal of Solid Waste will occur. For purposes of this Agreement, "Landfill" shall be synonymous with "Site. " Section 2. 14 MANDATED FEES. "Mandated Fees" shall be those August 15, 1994 -7- 113RAFT monies required from Operator from time to time by any Regulatory Agency for the purpose of funding (a) Federal, State or regional programs, (b) programs required by the Land Use Permit, or (c) other County established fees. Section 2. 15 OPERATOR. "Operator" shall mean the holder of the Use Permit or its assignee. Section 2. 16 PERMITS. "Permits" shall mean any and all governmental approvals, entitlements, clearances or classifications, including but not limited to, the Use Permit, general plan amendments, environmental impact reports, zoning approvals, conditional use permits, waste discharge permits and requirements, facilities permits, permits to operate, permits to construct, closure plans, building permits, encroachment permits, grading permits, tree removal permits, tract/parcel maps and all other governmental permits, consents or approvals as may be necessary to allow Operator to construct and operate the Landfill. Section 2 . 17 POST-CLOSURE MAINTENANCE. "Post-Closure Maintenance" shall mean those activities as required by law to .be undertaken at the Landfill, following Site Closure to maintain the integrity of containment features and/or to monitor compliance with applicable performance standards as specified by law. Section 2 . 18 REGULATORY AGENCIES. "Regulatory Agencies" shall mean Federal, State and local agencies responsible for regulating the operation and maintenance of sanitary landfills, August 15, 1994 -8- DRAFT such as,- but not limited to, California Integrated Waste Management Board, California Regional Water Quality Control Board, California Department of Health Services, the Contra Costa County Department of Health Services as Local Enforcement Agency for handling and disposal of Solid Waste, the Bay Area Air Quality Management District and the County. Section 2. 19 SCHEDULE OF DISPOSAL CHARGES. The "Schedule of Disposal Charges" shall mean a list of waste types and corresponding fee amounts to be charged at the Landfill for disposal of waste types. Section 2.20 SITE CLOSURE. "Site Closure" shall be the cessation of Solid Waste disposal at all or portions of the Landfill and subsequent operations necessary to prepare the Site for Post-Closure Maintenance in accordance with law, Regulatory Agency requirements and Permits. Section 2.21 SOLID WASTE. "Solid Waste" shall have the meaning set forth in Section 40191 of the California Public Resources Code as it may be amended from time to time, as follows: 1140191(a) Except as provided in subdivision (b) , 'solid waste' means all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or 5, 994 -9 August 1 1 - g DRAFT chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes. . "(b) 'Solid wastes" does not include hazardous waste or low-level radioactive waste regulated under Chapter 7.6 (commencing with Section 25800) of Division 20 of the Health and Safety Code. " (c) 'Solid Waste' does not include medical waste which is regulated pursuant to the Medical Waste Management Act (Chapter) 6 . 1 (commencing with Section - 25015) of Division 20 of the Health and Safety Code) . Untreated medical waste shall not be disposed of in a solid waste landfill, as defined in Section 46027 . Medical waste which has been treated and which is deemed to be solid waste shall be regulated pursuant to this division. " Section 2.22 SOLID WASTE PROGRAMS. "Solid Waste Programs" shall mean those programs directly related to solid waste which may include: transfer stations, household hazardous waste programs, recycling and resource recovery programs, Agreement and Use Permit administration costs (including legal, engineering, and accounting and other costs of the County) . Section 2.23 SPECIAL HANDLING WASTE. "Special Handling Waste" shall mean certain Solid Waste materials permitted for disposal at the Landfill which, because of their volume or type, August 151 1994 -10- DRAFT will require special handling by Operator such as, by example only, sewage sludge, tires, fencing, large appliances, large dead animals, concrete and asphalt. All Special Handling Wastes accepted at the Landfill shall be specifically identified in the Schedule of Disposal Charges. Section 2.24 SURCHARGE. "Surcharge" shall mean a special charge as required by the County and this Agreement, for funding of Solid Waste Programs, closure of landfills in operation prior to 1990 and for franchise fees and other costs as deemed appropriate by the County. Section 2 .25 SURCHARGE PAYMENTS. "Surcharge Payments" shall mean those monies received by Operator as a Surcharge and remitted to the County in accordance with the terms of this Agreement and of the Permits. Section 2 .26 USE PERMIT. "Use Permit" shall mean Contra Costa County Land Use Permit No. 2020-89, together with all Conditions of Approval applicable thereto, including any amendments thereof. ARTICLE 3. TERM OF AGREEMENT This Agreement shall remain in effect until 38.4 millions tons of waste have been disposed of in the Landfill, or such lesser time as may be prescribed by law. It is the parties intent that the term of this Agreement shall be the estimated life of the landfill expressed in terms of capacity as of this date: 38.4 million tons less the tonnage of waste disposed of prior to the effective date of this Agreement. August 15, 1994 -11- DRAFT ARTICLE 4. PERFORMANCE OF OPERATOR Section 4 . 1 OPERATION OF LANDFILL. Operator shall operate the Landfill, in strict compliance with, and subject to, the terms and conditions of this Agreement, the Permits and other applicable requirements of Regulatory Agencies. Section 4 .2 WASTE STREAM. Nothing in the terms and provisions of this Agreement shall be construed to grant rights of exclusivity with respect to Solid Waste generated in any . geographical portion of the County; nor shall this Agreement preclude or in any way restrict the County from entering into substantially similar agreements with other parties for Solid . Waste disposal operations at other locations; provided that the terms and conditions of such other agreements shall not be substantially more favorable to the other operators than the provisions of this Agreement. Section 4 .3 WASTE TYPES. Operator shall operate the Site in strict compliance with the Permits and laws; provided, however, Operator may refuse to allow the disposal of certain categories of Solid Waste after obtaining approval by the County, which approval shall not be unreasonably withheld. Operator shall provide sixty (60) days' notice to all affected parties prior to proposing County approval of Operator's tentative decision to disallow disposal of the affected Solid Waste. Section 4 .4 UNACCEPTABLE WASTE. Operator shall not allow disposal at the Site of material other than waste allowed by and subject to the terms of all Permits and laws. It is recognized August 15, 1994 -12- DRAFT that some non-approved materials, including certain hazardous wastes, may occasionally be unloaded at the Site by users thereof. Operator shall train its on-site employees to recognize such unacceptable wastes and materials. In the event that unacceptable waste is deposited at the Site, it shall be handled and removed by Operator in accordance with procedures which shall be developed by Operator and submitted to the County for approval prior to the Commencement Date. Nothing herein is intended to relieve the person or persons depositing or causing to be deposited such unacceptable waste from any liability. Operator retains the right to use all legal means to recover costs of removal and alternate disposal or treatment from such person or persons. Section 4.5 INSPECTION; INVESTIGATION, AND EVALUATION OF SITE. Operator acknowledges that it has and shall continue to inspect, investigate, and evaluate the Site regarding its suitability as a Solid Waste disposal site. The Site shall be immediately accessible at all reasonable times to Regulatory Agency officials for any reasonable, lawful and proper purpose. County officials shall usually give reasonable notice to Operator of their intention to visit the Site or if such notice is not given, shall notify Operator's on- site personnel of their presence on the Site. County shall not incur liability arising from the discharge of its inspection responsibilities, either by commission or by omission, except for its tortious conduct or breach of duty August 15, 1994 -13- DRAFT resulting in death, injury or property damage while engaged in its inspection responsibilities. The inspection of the work shall not relieve Operator of any obligation to perform under this Agreement. Operator shall remove and replace or repair any work not in compliance with those Permits, laws, ordinances or regulations applicable to the Site. Section 4.6 PERMITS. Operator shall obtain and maintain in force all necessary Permits and/or other approvals from the Regulatory Agencies for the Landfill. Upon receipt of each such Permit or approval, a copy thereof, together with all conditions or requirements attached thereto, shall be delivered by Operator to the Director. Section 4 .7 STATUS OF TITLE. Prior to the Commencement Date, Operator shall provide to the County reasonable evidence sufficient to establish that Operator is in possession of and/or has the right to use the Site for the purpose contemplated. Section 4.8 GATE FACILITIES. Operator shall supply, construct and thereafter maintain gate fee collection facilities . The facilities shall be designed and located as necessary so as to expedite the fee transactions and shall be attractively finished and landscaped. The facilities shall be consistent with the Use Permit for the Site. Operator shall supply, construct, and maintain truck scales as necessary to expedite the fee transactions, prevent traffic back-up, and allow for occasional maintenance and repair. The scales shall be compatible with the Gate Fee Collection System August 15, 1994 -14- DRAFT approved by the County, in accordance with Section 5. 1 of this Agreement. The scales shall be open and in working order during all Hours of Access at the Landfill. The sole access to the Site for vehicles carrying solid waste shall be the Landfill entrance, and all waste disposal vehicles shall. be recorded by the Gate Fee Collection System. Operator shall make provisions for quick repairs of the scales by competent technicians to minimize downtime. The scales shall meet all State requirements for design approval and accuracy for State certified scales. Only those scales functioning in accordance with all applicable regulations shall be used. Operator shall obtain the State of California certification for scale accuracy. Operator shall supply, deliver and maintain utilities to the Site and shall be responsible for all on-site and off-site costs and service charges in connection therewith. Section 4 .9 OPERATION OF GATE FEE COLLECTION SYSTEM. Operator shall operate the Gate Fee Collection System, including the providing of all labor and materials necessary with respect thereto. Such operation shall be for all Hours of Access. Section 4 . 10 FEE COLLECTION. Operator shall collect, count and account for all Landfill Tipping Fees and waste quantities from each user at the Site. Said fees shall be collected in accordance with the rates applicable pursuant to Article 6 of this Agreement. In the event that no scale is operable at any August 15, 1994 -15- DRAFT given time, vehicles will be charged based upon the weight certified by the originating transfer station or based upon a flat fee or volume fee schedule established by the parties in advance. Operator shall furnish the County with monthly reports on the number and types of vehicles and waste tonnages and/or volumes, as appropriate, of the various types and Gate revenue. Section 4. 11 PAYMENT TO COUNTY. Operator shall pay the Surcharge Payments required by Article 6 to the County monthly in arrears. Operator shall pay the Surcharge Payments to County within -thirty .(30) calendar days after the close of the prior month in which they are collected. Section 4. 12 HOURS OF ACCESS. For purposes of this Agreement, unless otherwise required by the terms of the Permits, Hours of Access shall be those specified in the Solid Waste Facilities Permit. Should the Director declare that an emergency exists, Operator shall keep the Landfill open as instructed to allow for the orderly disposal of Solid Waste generated or created by such emergency conditions at no additional charge or increase in the Gate Rate. The scheduled Hours of Access may be changed in a manner consistent with permit requirements. Operator may, in its sole discretion, observe the following holidays and close the Landfill: New Year's Day, Easter Sunday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day, or other major holiday as approved by the Director. August 15, 1994 -16- DF2AFT Section 4 . 13 NONDISCRIMINATORY SERVICE. Operator shall provide nondiscriminatory service for Solid Waste disposal to all users, and shall abide by all Federal, State and local laws and the Land Use Permit. Section 4 . 14 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS. It shall be Operator's responsibiXity to provide and maintain all roads required on the property for purposes of transporting refuse to the actual point of disposal, or transporting earth materials for fill within the Site, and such other roads as may be constructed for its convenience. Haul roads shall be well maintained. The surface shall be reasonably free from potholes and depressions. A safe, all weather access to a disposal area shall be provided at all times. Section 4 . 15 LITTER MANAGEMENT. Operator shall maintain and keep the Site and its access road reasonably free of litter and other refuse. Operator shall be solely responsible for maintaining the Site in a clean and sanitary condition, and shall be responsible for any public nuisance created as a result of its operations. Operator shall control on-site and off-site litter or debris in accordance with the Use Permit and the Solid Waste Facilities . Permit. Section 4. 16 ENVIRONMENTAL MITIGATION. Operator shall comply with all environmental mitigation measures reasonably and lawfully imposed by Regulatory Agencies including those imposed by the Use Permit. August 15, 1994 -17- DRAFT Section 4. 17 RECYCLING/RESOURCE RECOVERY PROGRAMS. Operator shall cooperate with the County and reasonably participate in satisfying the ancillary waste needs of the County, including participation in a County sponsored recycling/resource recovery plan and litter program, and/or any other activity which the County deems is appropriate for inclusion in the County Solid Waste Programs. Section 4 . 18 ACTIVITIES REPORT. Operator shall, by the first day of January of each year, assemble and provide to the County the Activities Report for the most recent Analysis Period. The Board may direct, upon ninety (90) days written notice to Operator, that the report provided in the Activities Report be made semi-annually. Section 4 . 19 PENALTY SCHEDULE FOR NONCOMPLIANCE. In the event that noncompliance by Operator with any condition or provision of this Agreement, or any applicable Permits or Regulatory Agency requirements is determined by the County, County shall notify Operator of the identified noncompliance. Following notification of noncompliance, the Director may impose penalties per noncompliance upon three (3) days notice to Operator in accordance with the following penalty schedule until such time as compliance is achieved: $ 500.00 per day during the first week of noncompliance $ 750.00 per day during the second week of noncompliance $1,000 .00 per day during the third week of noncompliance August 15, 1994 -18- DRAFT $1,250.00 per day for each day thereafter. At the time the Director imposes any penalties, the amounts due for each day of noncompliance shall be the above amounts subject to annual CPI adjustments, the applicable index to be reasonably selected by the Directpr. Notwithstanding the above three paragraphs, no monetary penalties will be imposed by the County in the event that Operator and/or said Regulatory Agency are diligently pursuing the process of correction or mitigation of the event(s) causing noncompliance. Operator shall have the right to arbitrate any action taken by the County under this provision in accordance with Section 13.7 of this Agreement. Section 4.20 RECORDS. Operator shall keep separate and accurate records for the Landfill as provided in the Use Permit. The County may, at its own expense (which may be recovered as a Solid Waste program cost) , at any time during the term of this Agreement, have the books and records of the Operator examined for the sole purpose of verifying Operator's compliance with the requirements of this Agreement. County shall give thirty (30) days written notice to the Operator in advance of such examination date. ARTICLE 5. PERFORMANCE OF COUNTY Section 5. 1 GATE FEE COLLECTION SYSTEM. The computerized Gate Fee Collection System, which shall be provided by Operator August 15, 1994 -19- DRAFT in accordance with Section 4.9 of this Agreement, shall be approved by the County, which approval shall not be unreasonably withheld. Section 5.2 INSPECTION OF SCALES. The County may, from time to time during regular business hours, inspect the scales and test the accuracy of same. ARTICLE 6. RATES Section 6. 1 BASE RATE. The Base Rate shall be determined and established by Operator at its sole discretion. Notwithstanding section 4. 13, it is understood that the Operator need not charge a uniform Base Rate to all customers, but may vary the Base Rate as between different customers based on various factors determined by Operator, including, but not limited to, the quantity and type of waste delivered by each customer to the facility and whether each customer has entered into a disposal agreement with the Operator in which the customer agrees to dispose of some or all of the customer's future waste stream at the Landfill. Operator shall at all times maintain on file with the County, a schedule of Base Rates and Gate Rates charged to each customer, including the Acme Interim or Permanent Transfer Station ("Acme Facility") , or any other transfer station. For customers other than the Acme Facility, the schedule shall specify whether each customer delivers waste directly to the Landfill or whether it is delivered by way of the Acme Facility or other transfer or processing facility. For waste delivered by August 15, 1994 -20- DRAFT way of or from the Acme Facility, the Schedule shall identify the components of the rates charged at the Facility, including the Acme Facility proprietary or Base Rate. The schedule may include a standard Base and Gate Rate which Operator charges unless a disposal agreement is entered, or other arrangements made. Said schedule of Base and Gate Rates shall be updated within ten days of material modification thereof. Material modifications include, but are not limited to, changes to any customer's Base and Gate Rate, and entering of a disposal agreement or other agreement with new customer. The purpose of this section is to ensure that the rates charged by Operator as well as fees and surcharges imposed by County as well as other governmental agencies are a matter of Public Record, so as to promote cooperation and trust between the Operator, the County, and the public. Towards this end, County may request, and Operator shall provide to County, all information reasonably necessary to effectuate the purpose of this section. Section 6 .2 SURCHARGE. The County may determine and establish at least once every two years, effective on the date determined by the Board of Supervisors, the Surcharge, which shall be added to the then applicable Base Rate, and collected as part of the Gate Rate. Operator will be provided at least ninety (90) days' written notice of any newly established Surcharge. In the absence of the County establishing a particular Surcharge amount, the Surcharge to be collected by the Operator for the August 15, 1994 -21- DRAFT County shall be thirty percent (30%) of the then applicable Base Rate. Section 6.3 GATE RATE. The Gate Rate shall consist of the Base Rate, Mandated Fees, and Surcharge. Section 6 .4 INITIAL SURCHARGE. Effective on the effective date of this Agreement, the Surcharge shall be: a. % of the Base Rate less the amount of all Mandated Fees imposed and received for use by the County with the exception of Mandated Fees imposed for 1) any household hazardous waste program, 2) any fee imposed pursuant to Public Resources Code section 41901, as said section is amended from time to time, for preparing, adopting and implementing a countywide integrated waste management plan ("AB 939 Fee") , or any future similar waste management fee, and 3) fees imposed pursuant to sections 35.1 and 35.2 of the Use Permit. (It is the parties ' intent that the fees described in the preceding sentence shall not be a "credit" towards the % surcharge. ) The parties understand that any fee which may be required in accordance with Section 35.3 of the Land Use Permit (Property Value Compensation Program) are Mandated Fees. b. For Solid Waste received at the Landfill via the Acme Facility, the Keller Surcharge and any other Keller Mandated Fees shall be collected at the Acme Facility together with the Acme Surcharge and any other Acme Mandated Fees. Section 6.5 DISPOSAL CONTRACTS. For all contracts. for the disposal of Solid Waste entered by Operator, the Surcharge August 15, 1994 -22- DRAFT applicable at the time of the disposal contract shall apply for the life of said disposal contract. The parties agree that any later established surcharge amounts shall not apply to waste received pursuant to such Solid Waste disposal contract for the life of said disposal contract. Operator shall advise County. of any disposal contract subject to the privileges of this section immediately upon execution. Operator shall provide County with any and all information requested by County concerning any such Contract, including providing County with copies of such contracts upon request. ARTICLE 7 . PERSONNEL Operator shall assign qualified personnel to operate the site as may be required to assure a smooth and efficient operation in compliance with all applicable Permits. The County has the right to request, in writing, administrative action, including the removal of any employee of Operator who violates any provision of this Agreement, or who in the opinion of such requesting party is unsafe, negligent, or discourteous to the public or others in the performance of his/her duties. Upon receipt of such a request, Operator shall immediately take whatever administrative action, which, in its judgment, is necessary to resolve the situation. Such action may include removal of that employee from the Site. A Site Supervisor employed by Operator shall be present at the Site at all times that any operations are being conducted August 15, 1994 -23- DRAFT thereon. Operator shall file with the Director the names, addresses, and telephone numbers of the Operator representatives who can be contacted at any time in case of emergency. These representatives shall be fully authorized to respond so as to resolve the emergency. ARTICLE 6. LANDFILL GAS If at any time Operator voluntarily pursues the sale of gas produced from the Landfill or the sale of electricity produced by burning said gas, County may require the payment of a Surcharge thereon. ARTICLE 9 . CLOSURE AND POST CLOSURE Section 9 . 1 CLOSURE RESPONSIBILITIES. Operator shall be responsible for Site Closure and Post Closure Maintenance of the Landfill according to all Permits and requirements of the . Regulatory Agencies. Operator will hold the County harmless for the performance of its duties under this Article. The County and Operator recognize the inevitability .of Site Closure. Both parties also recognize the existing uncertainties yet to be resolved which may impact the date and total cost of Site Closure and the need to commence closure activities promptly upon cessation of disposal activities in a discrete portion or phase of the Landfill. The parties intend to provide for. the public interest by assuring that the appropriate financial mechanisms are put in place by Operator to provide funds to pay the costs incurred for August 15, 1994 -24- DRAFT Site Closure and Post-Closure maintenance as required by law. Section 9.2 FINANCIAL ASSURANCES. Operator shall provide all financial assurances necessary to satisfy the provisions of Public Resources Code Section (formerly Section 66796.22 of the California Government Code) , Title 14, California Code of Regulations, Division 7, Chapter 5, Article 3.5 and all other applicable provisions of California and Federal law. The financial assurances shall include the establishment of a trust fund or equivalent financial arrangement as evidence of financial ability to provide for the cost of closure and post-closure maintenance as required by law. Operator shall consult with the County with respect to proposals to be made to the State regarding the financial assurance to be provided. Operator shall provide the County with adequate notice of any filings with the State or hearings with respect to such proposals sufficient to allow the County to participate in and provide input to the State on the State's determinations on closure and post closure requirements, including financial assurances to be imposed on the Site. Section 9.3 PERFORMANCE. Operator acknowledges that under State and Federal law, Operator shall have the responsibility to perform both closure and post closure activities in a timely, cost-effective manner. Performance by Operator shall be determined in accordance with State and Federal statutes. The County and Operator agree that, to the extent site closure and postclosure activities are funded from the Landfill August 15, 1994 -25- DRAFT rates, it is in the local public interest to assure timely, cost- effective closure and postclosure activities. The County shall have the right to conduct such technical and financial review as it deems necessary to protect the local public interest. Section 9.4 SIGNING OF INSTRUMENTS AND DOCUMENTS. From time to time, either party shall at the request of the other party and without further consideration, execute and deliver such instruments and documents as may be reasonably necessary in order to effectuate the purposes of this Article 9. Section 9.5 FAILURE TO MEET CLOSURE 'AND POST-CLOSURE OBLIGATIONS. In the event that Operator fails to perform its obligations as set forth in this Article 9, or to enter upon performance of same with due diligence after the determination of an event of default in a manner described below in Article 11, the County may enter the Landfill and perform the Site Closure and Post-Closure activities required to remedy the default and expend Site Closure funds for the costs involved. ARTICLE 10. UNINTERRUPTED OPERATION Section 10. 1 ASSURANCE OF UNINTERRUPTED OPERATION. Operator, in entering into this Agreement, assures that it will provide from the Commencement Date for the operation of a Solid Waste disposal facility at the Landfill in an uninterrupted manner for as long as the Site is useful and usable, except as provided in Section 11.4 below. Operator acknowledges the hardship that would occur if the Landfill is not operated properly or is prematurely closed. The County and Operator August 15, 1994 -26- DRAFT recognize that in the ordinary course of events, certain unexpected events may result that may place a burden on the requirement of uninterrupted operation. However, it is the purpose of this Article 10 to establish that it is Operator's obligation to avoid any interruption of operations except for those that are outside of Operator's control, as provided by Section 11.5 of this Agreement. Section 10.2 LABOR DISPUTES. In the event of a labor dispute, Operator shall use its best efforts to keep the Landfill open and to operate it in accordance with this Agreement unless a mutually acceptable disposal alternative is agreed upon by Operator and the County. ARTICLE 11. DEFAULT, REMEDIES Because of the complex nature of this Agreement and the work to be performed hereunder, together with the need for close cooperation and coordination between the parties, it is not anticipated that either party will declare the other in default under the terms and conditions of this Agreement except as a last resort. However, in the event of any such necessity, the following provisions are made a part hereof. Section 11. 1 FAILURE TO PROSECUTE WORK. Should Operator fail to prosecute the work or any severable part thereof in conformity with the requirements of this Agreement, the Director shall provide written notice to Operator specifying in detail the defect or default in performance (the "First Notice") and Operator shall have the right to cure same within a reasonable August 15, 1994 -27- DRAFT period of time. If after the First Notice is provided to Operator, .the work is not performed in accordance with the Director's specified time frame and a reasonable time to cure so as to ensure its completion in accordance with this Agreement, the Director shall serve further notice (the "Second. Notice") upon Operator of the County's intention to take further action as provided by law. The Director shall make appropriate and detailed written findings of fact which specify the event of default. No earlier than thirty (30) days after the Second Notice, County shall have the power and ability, if Operator is still in default, to take such actions as provided in law for remedying the same, including the termination of this Agreement. Should the County fail to perform any of its obligations under this Agreement, Operator may declare the County in default after following the same two notice and findings provisions required of the County above. Thereafter, Operator shall have the power and ability, if the County is still in default, to take such actions as provided in law for remedying the same, including bringing suit in a court of appropriate jurisdiction for equitable or legal relief or both. The foregoing notwithstanding, neither party may bring an action seeking money damages unless it has first provided the other party with 30 days notice of its intention to do so together with written notification of the specific actions which the other party may take to remedy the default which will form August 15, 1994 -28- DRAFT the basis for the claim for monetary damages. If the other party in good faith commences the actions specified within the thirty (30) day period, the first party shall not bring the action for damages. Section 11.2 CONVICTION OF CERTAIN CRIMES. Operator agrees that a single conviction of Operator, its parent, subsidiaries or operators, or their officers or employees at the level of Site operations manager or above, acting within the scope of their employment, of bribery, antitrust, corruption or theft relating to or involving directly the Landfill Site shall constitute an event of a breach of this Agreement subject thereupon to the provisions of this Article unless Operator, promptly initiates and follows through with appropriate disciplinary procedures and action considering the nature of the offense and resolution by the courts. Section 11.3 CONDEMNATION. In addition to any other remedy available to the County, it has the right and authority under law to condemn the Site. Section 11.4 RIGHT TO TAKE/RIGHT TO POSSESSION. In the event that Operator chooses to no longer operate the Site, Operator agrees that it will give County notice of its intention to cease operation ninety (90) days prior to the cessation. If, after receiving such notice, County initiates eminent domain proceedings to acquire the Site, Operator agrees that it will not object to or contest County's right to take, or right of possession of, the Site. Nothing contained herein shall August 15, 1994 -29- DRAFT constitute a waiver of the right to contest valuation at any stage of the proceedings. County and Operator agree that the provisions of this paragraph may be enforced by means of the remedy of specific performance. Section 11.5 FORCE MAJEURE. Operator shall not be liable for a default if the failure to perform under the terms and conditions of the Agreement arise out of causes beyond the control or without the fault or negligence of Operator. Such causes may include, but are not limited to, acts of God, or the public enemy, acts of the County in either its sovereign or contractual capacity, fires, floods, earthquakes, epidemics, quarantine restrictions, suppliers ' and vendors ' strikes and all other labor disputes, freight embargoes, and unusually severe weather; but in every case the failure to perform must be beyond the control and without substantial default or negligence of Operator. Operator shall make every reasonable effort to mitigate the effects of said causes. Section 11.6 SPECIFIC PERFORMANCE. Notwithstanding any other available remedies, the obligations duties and rights of each party under this Agreement shall be specifically enforceable by the other party. Section 11.7 NONEXCLUSIVE REMEDIES. The rights and remedies of either party to this Agreement as provided for in this Article 11 shall not be exclusive, and are in addition to any other rights and remedies provided by law or under this Agreement; except that the right of either party to seek monetary August 15, 1994 -30- DRAFT damages is limited as provided in Section 11. 1 above. ARTICLE 12. INSURANCE AND BONDS Section 12 . 1 WORKERS' COMPENSATION. Operator hereby acknowledges that it is aware of the provisions regarding Workers ' Compensation, Section 3700 of the Labor Code. Operator shall comply with the provisions of such Section as amended from time to time with regard to its employees and shall supply to the County forthwith upon execution of this Agreement, and annually thereafter, evidence of such compliance. Section 12 .2 PUBLIC LIABILITY. If a willing company can be located by either party hereto, and the premium for the policy or policies required hereunder is reasonable in the opinion of County, Operator shall obtain from a good and responsible company or companies doing insurance business in the State of California, and pay for, maintain in full force and effect for the duration of this Agreement and any extension, a policy or replacement policy of comprehensive liability insurance for the Landfill, in which the County is named as an additional insured with Operator. Operator shall furnish a Certificate of Liability Insurance to the Director before execution of this Agreement by the County. Notwithstanding any inconsistent statement in the policy described by the Certificate of Liability Insurance or any subsequent endorsement attached thereto, the protection offered by the policy shall : (a) Include the County, its officers, employees and agents while acting within the scope of their duties under this August 15, 1994 -31- DRAFT Agreement, the Use Permit, or any other County ordinance, resolution or other rule relating to the operation, maintenance or closure of the Landfill, as an additional insured covering said duties against all third party claims for negligence; and for indemnification of the County as provided by this Agreement. (b) Provide for a combined single limit policy not less than $10,000,000 per occurrence, combined bodily injury and property damage; such policy may exclude liability for bodily injury and property damage caused by toxic wastes. At every fifth year of this Agreement, this $10,000,000 minimum limit shall be increased as directed by the County but not more than 30% for each such five year period. Section 12.3 OTHER INSURANCE PROVISIONS. All insurance policies required by this Agreement shall bear an endorsement, whereby it is provided that, in the event of expiration, or proposed cancellation of such policy for any reason whatsoever, the Director shall be notified in writing not less than thirty (30) days before expiration or cancellation is effective. Expiration, reduction or cancellation of any insurance policy required by this Agreement without obtaining a replacement policy pursuant to Section 12.2 to meet the requirements herein shall be considered a breach of this Agreement by Operator. Operator shall also carry such other insurance as may be required by law. Operator shall be solely liable for any claims or liabilities caused by its failure to maintain insurance required by law. August 15, 1994 -32- DRAFT Section 12.4 FAITHFUL PERFORMANCE SURETY. Operator shall, prior to acceptance of waste at the Site under this Agreement, provide to the County an irrevocable Performance Surety Letter of Credit in the form set forth in Exhibit B hereto guaranteeing Operator's performance of all provisions of this Agreement (except Article 9, relating to Site Closure, for which separate financial assurances are required by applicable law) in an amount of not less than $1,000,000.00. This Letter of Credit may also be utilized to meet the security and performance requirement of the Use Permit, except as to6the closure requirements which will be separately secured. If Operator or an affiliate acceptable to the Director operates a transfer or processing station in the County, from which transfer or processing station solid waste is delivered to the Landfill, the Director may allow the Performance Surety Letter of Credit required by this section to additionally guarantee Operator's performance of all provisions of said transfer station agreement or franchise. ARTICLE 13. GENERAL PROVISIONS r Section 13. 1 GUARANTY BY PARENT OR AFFILIATE. Prior to the Commencement Date, and for all conditions and obligations of this Agreement, Operator shall provide to the Director, proof of guaranty by the parent or an affiliate of Operator acceptable to the County, of the performance by Operator of each provision of this Agreement to be performed by Operator. Proof of guaranty shall be in the form set forth in Exhibit C. Section 13.2 ATTORNEY'S FEES. In the event of litigation August 15, 1994 -33- DRAFT between the parties arising hereunder, each party shall pay and bear its own litigation expenses, including attorney's fees. Section 13.3 INDEMNITY AND HOLD HARMLESS AGREEMENT. (a) All work and performances by Operator covered by this Agreement shall be at the risk of Operator (b) With respect to third-party claims, Operator agrees to save, indemnify and keep harmless the County, its officers, employees, agents and assign against any and all liability, claims, judgments, or demands, including demands arising from injuries or deaths of persons and damage to property, arising directly or indirectly out of the obligations herein undertaken by Operator, save and except claims or litigation arising through the sole negligence or- willful misconduct of the County, and will make good to and reimburse the County for any expenditures, including reasonable attorney's fees, that the County may make by reason of such matters and, if requested by the County, shall defend any such suit at the sole cost and expense of Operator. (c) With respect to third-party claims, the County agrees to save, indemnify and keep harmless Operator, its officers, employees, agents and assigns against any and all liability, claims, judgments, or demands, including demands arising from injuries or deaths of persons and damage to property, arising directly or indirectly out of the sole negligence or willful misconduct of the County, and will make good to and reimburse Operator for any expenditures, including August 15, 1994 -34- DRAFT reasonable attorney's fees, that Operator may make by reason of such matters and, if requested by Operator, shall defend any such suit at the sole cost and expense of the County. (d) Should any party successfully challenge the validity of this Agreement or the procedure by which this Agreement was entered into or the. validity of any County action which authorizes the County to enter into this Agreement, then in such case the Operator shall have no cause of action for damages or any other relief against County as a result of such successful challenge.. In the event of any such legal challenge, Operator shall defend such action or proceeding at its sole expense and Operator shall save and hold County harmless from any claims or awards for third party attorneys ' fees and costs . Section 13.4 ASSIGNMENT. (a) Voluntary. Operator shall not sell, assign, subcontract or transfer this Agreement or any part hereof, or any obligation hereunder, without the written consent of County; provided, however, that Operator may assign this Agreement without the County's consent to any company which it controls, is controlled by, or which is under common control with Operator. As used in this Section, the term "control" with respect to a company, means the beneficial ownership of more than 50% of the voting stock of the company. The term assignment shall include any dissolution, merger, consolidation or other reorganization of Operator, which results in change of control of Operator, or any sale or other transfer August 15, 1994 -35- DRAFT of a controlling percentage of Operator's capital stock. Any ' attempted assignment not provided for above without such consent shall be void ab initio. (b) Involuntary. Except as may be permitted by paragraph (a) above, no interest of Operator in this Agreement shall be assignable by operation of law. Any such nonpermitted assignment and any of the following acts, each of which are deemed an involuntary assignment, shall provide County with the right to elect to terminate the Agreement forthwith, without suit or other proceeding: ( 1) If Operator becomes insolvent, or makes an assignment for the benefit of creditors; (2) If Writ of Attachment or Execution is levied on this Agreement or other property of Operator such that would have a materially adverse effect on Operator's ability to perform its duties and obligations under this Agreement; (3) If in any proceeding to which Operator is a party, a Receiver is appointed with authority to take possession of Operator's property such that would have a materially adverse effect on Operator's ability to perform its duties and obligations under this Agreement. Section 13.5 COMPLETE AGREEMENT. No verbal agreement with any officer, agency, or employee of the County or of Operator nor any contract either before, during, or after the execution of this agreement shall affect or modify any of the terms or obligations herein contained unless a written agreement, signed August 15, 1994 -36- DRAFT by both parties; specifically provides that same is an amendment to this Agreement. Section 13.6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. while this contract benefits the public interest throughout Contra Costa County, it is an Agreement between only Operator and the County and, accordingly, only Operator and the County may enforce same. No claims, demands, or causes of action by any entity, party, or person claiming to be a third party beneficiary hereunder shall be enforceable. Section 13.7 ARBITRATION. Any controversy or claim submitted to arbitration pursuant to the express provisions of this Agreement, or by mutual subsequent agreement, and arising out of or relating to this Agreement, or the breach thereof, shall be governed by the provisions of Part III . , Title 9 of the Code of Civil Procedure, sections 1280 et seq. as amended from time to time. The arbitration shall be de novo and subject to a de novo appeal or challenge brought in the Contra Costa County Superior Court as to any alleged error of law or as to the admissibility of evidence. California judicial rules of evidence shall apply to the arbitration proceedings. The arbitration decision shall be decided under and in accordance with California law, supported by a preponderance of evidence and in writing in the form of a Statement of Decision pursuant to Code of Civil Procedure Section 632. Section 13. 8 CONFLICT. (a) This Agreement is intended to implement prior August 15, 1994 -37- DRAFT Landfill approvals, including the Use Permit (and Ordinance No. 88-81 if applicable to the Landfill) . In the case of any apparent or potential conflict between the provisions of this Agreement and the provisions of the Use Permit or any involved development agreement, the provisions of this Agreement, the Use Permit and/or development agreement shall be read together and harmonized to the maximum extent possible to effectuate the intentions of the parties. In the case of any unresolved conflict between the provisions of this Agreement and the provisions of the Use Permit or any involved development agreement, the provisions of the Use Permit and/or development agreement shall control. Notwithstanding any other provision in this Agreement or in the LUP, importation of waste not originating in Contra Costa County shall be allowed as required by recent U.S. Supreme Court cases. (b) Operator has entered into an agreement with Contra Costa Water District ("CCWD" ) the relevant portions of which are attached hereto as Exhibit D, which Exhibit is incorporated herein by this reference. If there is any conflict between this Agreement and Exhibit D, this Agreement shall prevail with respect to the relationship between Operator and the County. Section 13.9 CAPTIONS. The captions and headings used in this Agreement are for convenience and reference only and are not to be construed as controlling over the text of this Agreement. Section 13. 10 DELEGATION BY BOARD. The -Board may, in its discretion, delegate to a County employee or hearing officer any August 15, 1994 -38- DRAFT • of its functions expressly or impliedly arising from this Agreement provided that in such case any decision made by such Board, County employee or officer may be appealed de novo to the Board. Section 13. 11 SEVERABILITY. If any term, provision, covenant or condition ("provision;' ) of the Agreement or the application of any provision of this Agreement to a particular situation is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect. Notwithstanding any other provision of this Agreement, if any provision of this Agreement in itself or as applied in any particular situation is held to be invalid, void or unenforceable, it is the intention of the parties that the remaining portions of this Agreement shall be continued in full force and effect and that the invalid, void or unenforceable provision be severed -therefrom. Section 13 . 12 MASCULINE GENDER USED. The masculine gender is sometimes used in this Agreement and is so used for convenience only and is not otherwise intended. Section 13. 13 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Section 13. 14 NOTICES. All notices or other communications ("Notice" ) to be given pursuant to this Agreement, including the August 15, 1994 -39- DRAFT notices required in Articles 6 and 10 hereof, shall be in writing • and shall be deemed given when mailed by registered or certified United States mail, addressed to the parties as follows: To County: County of Contra Costa Attn: County Administrator To Operator: Keller Canyon Landfill Company Attn: Boyd M. Olney, Jr. 441 North Buchanan Circle Pacheco, California 94553 With Courtesy as designated by Browning-Ferris Industries of California. A change in address or a change in the person or title to which Notice is to be given shall be effectuated by Notice to the other party. IN WITNESS WHEREOF, this Agreement is effective on the date first provided on page one hereof. OPERATOR Keller Canyon Landfill Company a California corporation By: Boyd M. Olney, Jr. President By: Vice-President COUNTY OF CONTRA COSTA By: Chair, Board of Supervisors ATTEST: By: Clerk of the Board APPROVED AS TO FORM: By: ltf: 11.kc1camd.dz3 County Counsel August 15, 1994 -40- DRAFT SENT BY:CITY 4F KALNUT CREEK ; 8-15-94 ; 13:12 : CITY KAM ER 1+4t3t-it-nrana Tax ir�tnsnnua���ia�iu, r�r< ...,.,..tl.. - t Tb p , �! From A ict#4t�/ll co � h�v2Vin{ - Dept. RttOtN!� C:AY Fox M 4 City0fCNffl CITY MANAGER'S OFFICE To: Members, Board of Supervisors Fax: Various From: Donald A. Blubaugh Date: August 15, 1994 Pages: 1 Page , including cover sheet. This morning (Monday) I received a fax of two Board Reports for your consideration tomorrow. The first deals with, among other things, franchise and other County fees at feller and Acrr�p Transfer. There is no explanation in the report about what is prompting the consideration. I would note that based upon the cursosry information included, County fees are likely to remain the same or go up. How does this make the County more competetive? I would remind the Board that the Central County Solid Waste Authority has before it a firm offer from Waste Management to haul garbage elsewhere at far less costs than now being charged. The second report provides an option-for an Acme Closure Fee of $2.00 per ton. I am surprised to see this surface in that it has not been discussed by the Joint-City County Defense Group. Adopting such a fee is premature, is not realistic with possible outcomes of the litigation, and would penalize Walnut Creek residents who are already charged a fee (included in our approved rates) to help defray any possible closure costs at this facility cc Mayor Councilmembers City Attorney ; From lite desk of... Donald A. Blubaugh City Manager City of Walaut Crcck 1660 Nurtlt Main St. Walnut Creek,Co.94596 (510)943-5812 Fax:(510)943-5897 COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA AMENDMENT NO. 11 TO LANDFILL FRANCHISE AGREEMENT 1. PARTIES. This Amendment No. 11 to Landfill Franchise Agreement is made and entered by and between the County of Contra Costa ("County") and Keller Canyon Landfill Company ("Operator"). 2. BACKGROUND. On December 4, 1990, County and Operator entered a Landfill Franchise Agreement ("Agreement") for the operation of the Keller Canyon Landfill (described in Exhibit A to the Agreement). Subsequently, County and Operator entered amendments to the Agreement, including Amendment No. 10, approved by the County on June 28, 1994. 3. PURPOSE. The purpose of this Amendment No. 11 is to further extend Amendment No. 10, to September 30, 1994. 4. INTERIM RATE. As set forth in Amendment No. 10, the Base Rate at the Keller Canyon Landfill shall continue to be as established by Operator, not to exceed $38.48, based upon market and economic conditions and/or factors found relevant by Operator. The Gate Rate shall be the Base Rate plus applicable fees, as previously agreed to and last set forth in Amendment No. 9, subject to applicable requirements and agreements between the parties. 5. EFFECT. Subject to the provisions herein, Amendment No. 1 remains in full force and effect. 6. EFFECTIVE DATE. This agreement is effective on September 1, 1994, and shall remain in effect until September 30, 1994. KELLER CANYON LANDFILL OUNTY F C NTRA COSTA COMPANY, a California corporation By y� �� ®� Chair, Board of Supervisors BW. -eSrpEW Attest: Phil Batchelor, Clerk of the Board of Supervisors and County Admin'strator By � By L.-WIJUKY LTF 12.kc1camd,11 FORM APPROVED VICTOR J. T AN,Count C tinsel y By Deput