HomeMy WebLinkAboutMINUTES - 08021994 - 2.3 i \
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THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on August 2 , 1994 by the following vote :
AYES : Supervisors Smith, Bishop, DeSaulnier, Torlakson and Powers
NOES : None
ABSENT: None
ABSTAIN: None
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SUBJECT: Report From The Director of Growth Management and
Economic Development Agency In Response To Keller and
Acme Franchise and Rate Issues .
On this date the Board of Supervisors considered the report
from the Director of the Growth Management and Economic
Development Agency in response to Keller and Acme franchise and
rate issues .
Val Alexeeff, Director, Growth Management and Economic
Development Agency, presented the report and recommendations to
the Board.
Tom Bruen, 1990 California Boulevard, Walnut Creek,
indicated concurrence with the franchise agreement for Keller
Canyon prepared by County Counsel ' s office and requested approval
of both that and the draft franchise agreement for the permanent
transfer station which will be operated by Browning-Ferris
Industries .
The Board discussed the matters and Supervisor Powers-
expressed dissatisfaction with the staff report
The Board postponed action on the matter until after closed
session.
Following closed session and further discussion, the Board
took the following actions on a Board Order prepared by
Supervisor Powers to the Board:
REFERRED the Acme Franchise to County Counsel for review;
REFERRED both the Keller and the Acme franchises to the Ad Hoc
Committee of the Board (Supervisors Smith and Bishop) ; AUTHORIZED
removal of the rate controls for Keller landfill, ie no floor or
ceiling, except for County and mandated fees, which the County
will regulate every two years, including CPI increases or
decreases and consider setting a minimum fee level at Keller
Landfill; REFERRED all County fees to staff to review for program
adequacy; REFERRED to the Health Services Department and
Community Development Department for a report to the Board of
Supervisors, and also REFERRED to the County Administrator the
issue of financial impacts on other programs and what are the
costs of programs; REFERRED to the Planning Commission a review
of the Land Use Permit for Keller Landfill for review of the $4
mitigation fees and report back to the Board of Supervisors on
September 20, 1994 , including what has been spent, what programs
are being considered and what has been generated since 1992 ;
REFERRED to the Ad Hoc Committee of the Board a $2 to $5
franchise fee for the Acme transfer station for discussion and
report to the Board of Supervisors; REFERRED to the Local
Enforcement Agency (LEA) , Community Development Department and
County Counsel, the issues of. a log of waste to Keller Canyon and
accuracy of fee collection, and anti-fee provisions in the Acme
and Keller Franchises and the Acme litigation; DIRECTED the Ad
Hoc Committee of the Board to .meet with the mini JPA to expedite
disposal review and County participation in the JPA.
1 hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Board of Suisors on t e date shown
ATTESTED:
PHIL BA H OR,Cie c of the Board
upervis d Cou ty dministrator
cc : GMEDA
County Counsel By Deputy
Community Development Department
County Administrator
TO: BOARD OF SUPERVISORS
FROM: SUPERVISOR TOM POWERS Contra
Costa
DATE: Ci o U n ty
SUBJECT:
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
1. Refer Acme franchise to County Counsel for review.
2. Refer both franchises to an Ad Hoc Committee of the Board to review and report concensus to Board of
Supervisors.
3. Authorize removal of rate controls for Keller landfill, ie no floor or ceiling, except for County and mandated
fees, which the County will regulate every two years, including C.P.I. increases or decreases. Also consider setting
a minimum fee level at Keller Landfill.
4. Refer all County fees to staff to review for program adequacy. Referral to Health ServiceS and Community
Development for a report back to BOS.
5. Refer to the Planning Commission a review of the LVP for Keller Landfill for review of the $4 mitigation fee
and report back to the BOS on Sept. 20, 1994.
6. Consider a $2 to $5 franchise fee for the Acme transer station.
7. Refer to LERA, Commumuty Development and County Counsel the issues of
a. log of waste to Keller Canyon and accuracy of fee collection.
b. anti-fee provisions in the Acme and Keller Franchises and the Acme litigation.
8. Direct Ad Hoc Committee to meet with the mini JPA to expidite disposal review and County participation in
the J.P.A.
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
I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS (ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
ATTESTED
PHIL BATCHELOR,CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
BY DEPUTY
Contact Person:
CC:
i
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TO: BOARD OF SUPERVISORS f Contra
FROM: VAL ALEXEEFF, DIRECTOR Costa
GROWTH MANAGEMENT & ECONOMIC DEVELOPMENT AGENCY -
County
DATE: AUGUST 2, 1994 vv
SUBJECT: Report from GMEDA in response to Keller and Acme franchise and rate
issues . Consider action to be taken.
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
1 . Authorize final franchise agreement for Keller providing for
entire life of Keller at capacity.
2 . Authorize removing rate controls for Keller, i .e. no floor or
ceiling except for County fees .
3 . Approve interim local fees for County at 20% of Keller Base
rate.
4 . Direct staff to review and set criteria for LUP Mitigation,
939 fees and household hazardous waste fees .
5 . Set September 20, 1994 as LUP hearing to review transportation
mitigation and open. space mitigation fees and review import
restrictions due to court decisions . Review criteria for
direct haul .
6 . Authorize County fee amount to be frozen at newly established
rate for life of disposal contract executed within 6 months .
7 . Authorize a franchise agreement for the Acme,"Permanent
Transfer Station.
CONTINUED ON ATTACHMENT: X YES SIGNATURE ��
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOAR COMMITTEE
APPROVE OTHER
SIGNATURE(S) :
ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN
AYES : NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact:Val Alexeeff 646-1620 ATTESTED
cc : Community Development Department PHIL BATCHELOR, CLERK OF
County Counsel THE BOARD OF SUPERVISORS
CAO AND COUNTY ADMINISTRATOR
rateboz.te BY , DEPUTY
ACME/KELLER RATES
August 2, 1994
Page 2
RECOMMENDATIONS - continued
8. Direct staff to work with cities and special districts to
enable County to participate in RFP process to solicit the
company who can provide garbage disposal at the most effective
rates .
9 : Direct staff to -work with Walnut Creek, Central San and San
Ramon to include county participation in a joint power agency
that will address waste disposal issues and allow County to
determine appropriate fees for household hazardous waste and
other activities .
FISCAL IMPACT
See attached.
BACKGROUND/REASONS FOR RECOMMENDATIONS
See attached.
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PROPOSAL TO CONVERT FEE STRUCTURE
TO PERCENTAGE OF BASE RATE
(ASSUME 330,000 TONS)
Summary of current revenues:
Item Current Total Revenue
Rate
LEA $ 1.00 $ 330,000
Resource Recovery 1.00 3307000
Keller Mitigation Review .15 49,500
Rate Review .10 337000
Host Community Mitigation 2.00 660,000
Franchise 3.90 1,287,000
LUP Mitigation * 4.00 1320,000
$12.15 $4,009,500
Proposed 20% cap for $30 base rate $ 6.00 $1,980,000
* LUP conditions mandate $4 fee.
If 20% cap is established, budgets would have to be revised.
DRAFT
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
PERMANENT TRANSFER STATION FRANCHISE AGREEMENT
AUGUST _, 1994
TABLE OF CONTENTS
Page
RECITALS . . . . .. . . . . . .. . . . . . . . . . . . . . . 1
ARTICLE 1. INTRODUCTORY PROVISIONS 2
Section 1. 1 RECITALS INCORPORATION 2
Section 1.2 EFFECTIVE DATE . . . 2
Section 1.3 NO PREFERENTIAL TREATMENT . . . 2
ARTICLE 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . 3
Section 2 . 1 AGREEMENT . . . . . . . . . . . . . . . 3
Section 2 .2 BOARD . . . . . . . . . . . . . . . . . . . 3
Section 2.3 COUNTY . . . . . . . . . . . . . . . . . . 3
Section 2.4 DIRECTOR . . 3
Section 2 .5 DISPOSAL PRIVILEGES 3
Section 2. 6 EFFECTIVE DATE . . . . . . . . . . . . . . . 3
Section 2 .7 EMERGENCY . . . . . . . . . . . . . . . . . 3
Section 2.8 HOURS OF ACCESS . . . . . . . . . . . . . . 4
Section 2 .9 OPERATOR . . . . . . . . . . . . . . . . . . 4
Section 2 . 10 OPERATOR'S PROPRIETARY DISPOSAL FEE . . . . 4
Section 2 .12 REGULATORY AGENCIES5
Section 2. 13 STATION . . . . . . . . . . . . 5
Section 2 . 15 USE PERMIT . . . . . . . . . . . . . . . 5
Section 2 . 17 WASTE STREAM . . . . . . . . . . . . . . 5
ARTICLE 3. TERM OF AGREEMENT . . . . . . . . . . . . . . . . . 6
Section 3. 1 TERM . . . . . . . . . . . . . . . . . . 6
ARTICLE 4 . PERFORMANCE OF OPERATOR . . . . . . . . . . . . . . 6
Section 4. 1 OPERATION OF STATION . . . . . . . . . . . . 6
Section 4.2 WASTE STREAM . . . . . . . . . . . . . . . 6
Section 4. 3 UNACCEPTABLE WASTE . . . . . . . . . . . . . 6
Section 4. 4 INSPECTION, INVESTIGATION, AND EVALUATION OF
STATION . . . . . . . . . . . . . . . . . . . . . 7
Section 4. 5 PERMITS . . . . . . . . . . . . . . . . 8
Section 4. 6 GATE FACILITIES . . . . . . . . . . . . . . 8
Section 4 .7 OPERATION OF GATE FEE COLLECTION SYSTEM . . 9
Section 4.8 FEE COLLECTION . . . . . . . o . . . . . . 9
Section 4.9 HOURS OF ACCESS . . . . . . . . . . . . 9
Section 4. 10 REFUSE HAULING . . . . . . . . . . . . 10
Section 4. 11 ACCESS ROADS. . . . . . . . . . . . . . . 10
Section 4. 12 LITTER MANAGEMENT . . . . . . . . 10
Section 4. 13 ENVIRONMENTAL MITIGATION . . . . . . . . 11
Section 4. 14 RECORDS . . . . . . . . . . . . . . . . . 11
ARTICLE5. RATES . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.1 GATE RATE . . . . . . . . . . . . . 11
Section 5.2 MANDATED FEES; PROCEDURE . . . . . . . . 12
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ARTICLE6. PERSONNEL . . . . . . . . . . . . . . . . . . . . 12
Section 6. 1 QUALIFIED PERSONNEL . . . . . . 12
Section 6.2 REMOVAL . . . . . . . . . . . . . . . . . 13
ARTICLE 7. DEFAULT, REMEDIES . . . . . . . . . . . . . . . 13
Section 7 .1 FAILURE TO PERFORM . . . . . . . . . . . . 13
Section 7.2 CONVICTION OF CERTAIN CRIMES . . . . . . . 15
Section 7 .3 CONDEMNATION . . . . . . . . . . . . . . . 15
Section 7.4 FORCE MAJEURE . . . . . . . . . . . . 15
Section 7.5 SPECIFIC PERFORMANCE . . . . . . . . . . . 16
Section 7 . 6 NONEXCLUSIVE REMEDIES . . . . . . . . . . 16
ARTICLE S. INSURANCE AND BONDS . . . . . . . . . . . . . . . 16
Section 8. 1 WORKERS, COMPENSATION . . . . . . . . . . 16
Section 8.2 PUBLIC LIABILITY . . . . . . . . . . . . 16
Section 8.3 OTHER INSURANCE PROVISIONS 18
ARTICLE 9. GENERAL PROVISIONS . . . . . . . 18
Section 9. 1 GUARANTY BY PARENT OR AFFILIATE . . . . . 18
Section 9.2 ATTORNEYS' FEES . . . . . . 18
Section 9 . 3 INDEMNITY AND HOLD HARMLESS AGREEMENT 19
Section 9. 4 ASSIGNMENT . . . . . . . . . . . . . . . . 20
(a) Voluntary . . . . . . . . . . . . . . . . . 20
(b) Involuntary . . . . . . . . . . . . . . . . . 21
Section 9. 5 COMPLETE AGREEMENT . . . . . . . . . . . . 21
Section 9. 6 NO THIRD-PARTY BENEFICIARY ENFORCEMENT 22
Section 9.7 ARBITRATION . . . . 22
Section 9.8 CONFLICT . . . . . 22
Section 9 .9 CAPTIONS 23
Section 9.10 DELEGATION BY BOARD . . . . . . . 23
Section 9. 11 SEVERABILITY . . . . . . . . . . . . . . 23
Section 9. 12 MASCULINE GENDER USED . . . . . . . . . . 24
Section 9. 13 GOVERNING LAW . . . . . . . . . . . . . 24
Section 9 . 14 NOTICES . . . . . . . . . . . . . . . . . 24
EXHIBITA . . . . . . . . . . . . . . . . . . . . . . . . . . 26
EXHIBITB . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ii
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
PERMANENT TRANSFER STATION FRANCHISE AGREEMENT
AUGUST , 1994
THIS PERMANENT TRANSFER STATION FRANCHISE AGREEMENT (the
"Agreement") is made and entered into this day of August,
1994, 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 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 the
responsibility of the County's solid waste planning, management,
implementation, and regulation to the Contra Costa County Board
of Supervisors; and
WHEREAS, the County, through its Board of Supervisors, has
approved the Permanent Transfer Station (hereinafter "Station") ,
as shown on Exhibit A, which is attached hereto and incorporated
herein by this reference, for the processing and transfer of
solid waste in the County; and
WHEREAS, Operator has acquired, developed and constructed
the station; and
WHEREAS, on the Board of Supervisors
of Contra Costa County approved the Permanent Transfer Station
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Use Permit No. subject to the Conditions
a
Approval and the Findings Relative to the Use Permit Purs�i JG*P-
the California Environmental Quality Act ("CEQA") , each of the
same date; and
WHEREAS, the County adopted Ordinance No. 88-81, which
provides that a solid waste transfer station may be operated
within the County only upon the approval of a franchise agreement
by the County or upon the operator of a transfer station entering
into a contract with the Contra Costa County Board of Supervisors
to operate such facility.
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 to this Franchise Agreement, 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. This Agreement shall be
effective as of August _, 1994 .
Section 1. 3 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
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favorable as those agreed upon by the County with the operator of
any other transfer station 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 to make them at least as favorable for 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 BOARD. "Board" shall mean the Board of
Supervisors of the County of Contra Costa.
,Section 2 . 3 COUNTY. "County" shall mean the County of
Contra Costa, a political subdivision of the State of California.
Section 2 .4 DIRECTOR. "Director" shall mean the County
Administrator or his designated deputy, other County officer or
employee.
Section 2 . 5 DISPOSAL PRIVILEGES. "Disposal Privileges"
shall mean the privilege to dispose of Solid Waste in accordance
with all laws, ordinances, permits, and applicable requirements.
Section 2. 6 EFFECTIVE DATE. "Effective Date" shall mean
August , 1994 .
Section 2 .7 EMERGENCY. "Emergency" shall mean a sudden,
unexpected occurrence involving a clear and imminent danger,
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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. 8 HOURS OF ACCESS. "Hours of Access" shall be
those times during which Solid Waste may be delivered to the
Station for processing and transfer.
Section 2 . 9 OPERATOR. "Operator" shall mean the holder of
the Use Permit or its assignee.
Section 2 . 10 OPERATOR'S PROPRIETARY DISPOSAL FEE.
"Operator's Proprietary Disposal Fee" shall mean the fees
determined by Operator and charged to each customer of the
Station to dispose of Solid Waste at the Station. Such fees may
vary between different customers at Operator's discretion.
Section 2 . 11 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 Station.
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Section 2 . 12 REGULATORY AGENCIES. "Regulatory Agencies"
shall mean federal, state and local agencies in charge of
regulating the operation and maintenance of transfer stations,
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 . 13 STATION. "Station" shall mean the Permanent
Transfer StaLion described in Exhibit A where the processing and
transfer of Solid Waste will occur. For purposes of this
Agreement, "Station" shall be synonymous with "Site" .
Section 2 . 14 SOLID WASTE. "Solid Waste" shall mean those
non-hazardous solid waste products defined by Section 40191 of
the California Public Resources Code as it may be amended from
time to time.
Section 2 . 15 USE PERMIT. "Use Permit" shall mean the
Contra Costa County Land Use Permit No. together with
all Conditions of Approval applicable thereto.
Section 2. 17 WASTE STREAM. "Waste Stream" shall mean Solid
Waste generated within the County.
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ARTICLE 3 . TERM OF AGREEMENT
Section 3 . 1 TERM. The term of this Agreement shall be for
the period commending on the Effective Date and ending on the
date when the Station permanently ceases all operations.
ARTICLE 4 . PERFORMANCE OF OPERATOR
Section 4 . 1 OPERATION OF STATION. Operator shall operate
the Station for the 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 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 transfer operations at other locations; provided that the
terms and conditions of such other agreements shall not be more
favorable to the other operators than the provisions of this
Agreement.
Section 4 . 3 UNACCEPTABLE WASTE. Operator shall not allow
disposal at the Station of material other than Solid Waste unless
specially approved in writing by the Director and otherwise
allowed by the Operator's Permits. It is recognized that some
non-approved materials, including hazardous wastes, may
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occasionally be _unloaded at the Station 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 Station, it shall be
handled and removed by Operator in accordance with procedures
which shall be developed by Operator and approved by the County.
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 . 4 INSPECTION INVESTIGATION AND EVALUATION OF
STATION. The Station shall be immediately accessible at all
reasonable times to Regulatory Agency officials for any
reasonable, lawful and proper purpose. Such 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.
Operator's designated representatives shall be entitled to
accompany any such official while at the Station.
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
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this Agreement. Operator shall remove and replace or repair ar �
work not in compliance with those Permits, laws, ordinances or
regulations applicable to the Site.
Section 4 . 5 PERMITS. Operator shall obtain and maintain in
force all necessary Permits and/or other approvals from the
Regulatory Agencies for the 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 . 6 GATE FACILITIES. Operator shall supply and
maintain gate fee collection facilities. The facilities shall be
consistent with the Use Permit for the Station.
Operator shall supply 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, which approval shall not be unreasonably withheld.
The scales shall be open and -in working order during all
Hours of Access at the Station pursuant to Section The sole
access to the Station for vehicles carrying Solid Waste shall be
the Station 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
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functioning in accordance with all applicable regulations shall
be used. Operator shall obtain the State of California
certification for scale accuracy. The County may, from time to
time during regular business hours, inspect the scales and test
the accuracy of same.
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 .7 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, ' except as provided in Sections , and
Such operation shall be for all Hours of Access.
Section 4 .8 FEE COLLECTION. Operator shall collect, count
and account for all Station Tipping Fees and waste quantities
from each user at the Station. In the event that no scale is
operable at any 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
Operator.
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 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 i---"-
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Facilities Permit. Should the Director declare that an emergency
exists, Operator shall keep the Station open as instructed to
allow for the orderly disposal of Solid Waste generated or
created by such emergency conditions. 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 Station; New Year's Day, Easter Sunday,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and
Christmas Day, or other major holidays as approved by the
Director.
Section 4 . 10 REFUSE HAULING. Operator shall abide by all
federal, state, and local laws and the Land Use Permit.
Section 4 . 11, ACCESS ROADS. It shall be Operator's
responsibility to provide and maintain all roads required on the
Station property for purposes of transporting refuse to the
actual point of disposal , within the Station facility.
Section 4 . 12 LITTER MANAGEMENT. Operator shall maintain
and keep the Station and its access road reasonably free of
litter and other refuse. Operator shall be solely responsible
for maintaining the Station 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.
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Section 4 . 13' 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 . 14 RECORDS. Operator shall keep separate and
accurate records for the Station as provided in the Use Permit.
County shall give thirty (30) days' written notice to the
Operator in advance of such examination date, except that shorter
periods may be prescribed for the rate review process.
ART'CLE 5. RATES
Section 5. 1 GATE RATE. The Operator shall charge a Gate
Rate for all Solid Waste disposed of at the Station. The Gate
Rate shall consist of the total of the following three
components: (a) the Operator's Proprietary Disposal Fee; and (b)
Mandated Fees. Mandated Fees shall be assessed on a per-ton
basis, as determined by any applicable federal or state laws or
Regulatory Agencies. The Operator's Proprietary Disposal Fee
shall not be set or regulated by the County, but shall be set by
the Operator in its sole discretion. The Operator need not
charge a uniform Proprietary Disposal Fee to all customers, but
may vary the fee as between different customers based on various
factors determined by Operator, including, but not limited to,
the quantity and type of Solid 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
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to dispose of some or all of the customer's future Solid Waste
Stream at the Station.
Section 5.2 MANDATED FEES; PROCEDURE. The Gate Rate will
be adjusted by Operator to accommodate the imposition, change, or
removal of Mandated Fees as such fees are adopted, amended, or
repealed by Regulatory Agencies. Operator shall give County
prompt written notice of the adoption, amendment, or repeal of a
Mandated Fee. A Mandated Fee shall: (1) become part of the Gate
Rate on the date any legislation or regulation imposes the
Mandated Fee upon Operator; (2) be adjusted in the Gate Rate on
the required date set forth in any legislation or regulation
changing said Mandated. Fee; and (3) be removed from the Gate Rate
upon recapture of the Mandated Fee or in the event of repeal of
the legislation.
ARTICLE 6. PERSONNEL
Section 6. 1 OUALIFIED PERSONNEL. Operator shall assign
qualified personnel to operate the Station as may be required to
assure a smooth and efficient operation in compliance with all
applicable Permits. A Station supervisor employed by Operator
shall be present at the Station 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.
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Section 6.2 REMOVAL. The County has the right to requeste-
in writing, administrative action, including the removal of any
employees 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.
ARTICLE 7. 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 7 . 1 FAILURE TO PERFORM. Should Operator fail to
perform 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
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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 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
bring 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 thirty (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
14
thirty- (30) day period, the first party shall not bring the
action for damages.
Section 7.2 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
Station operations manager or above, acting within the scope of
their employment, of bribery, antitrust, corruption or theft
relating to or involving directly the 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
actions considering the nature of the offense and resolution by
the courts.
Section 7. 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 7.4 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
15
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the control and without substantial default or negligence of
Operator. Operator shall make every reasonable effort to
mitigate the effects of said causes.
Section 7 . 5 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 7 . 6 NONEXCLUSIVE REMEDIES. The rights and remedies
of either party to this Agreement as provided for in this Article
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 above.
ARTICLE 8. INSURANCE AND BONDS
Section 8 . 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 8 . 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
Operator and County, Operator shall obtain from a good and
16
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responsible company or companies doing insurance business in the
State of California and pay for and 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 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 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, maintenance,
or closure of the 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; and
(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
thirty percent (30%) for each such five-year period.
17
Section 8 . 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 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.
ARTICLE 9. GENERAL PROVISIONS
Section 9. 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 9.2 ATTORNEYS' FEES. In the event of litigation
between the parties arising hereunder, each party shall pay and
bear its own litigation expenses, including attorneys' fees.
18
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Section 9. 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 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 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 attorneys' 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 reasonable attorneys'
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.
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(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 9 . 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 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 fifty
percent (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
of a controlling percentage of Operator's capital stock. Any
attempted assignment not provided for above without such consent
shall be void ab initlo.
20
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(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 Opeiator 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 9. 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
by both parties, specifically provides that same is an amendment
to this Agreement.
21
Section 9. 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 9.7 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 sea. , 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 9. 8 CONFLICT.
(a) This Agreement is intended to implement prior Station
approvals, including the Use Permit. In the case of any apparent
or potential conflict between the provisions of this Agreement
22
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and the provisions of the Use Permit, 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 .
Section 9 .9 CAPTIONS. The captions and headings used in
this Agreement are for convenience and reference only and are not
be to construed as controlling over the text of this Agreement.
Section 9. 10 DELEGA':ION 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 9. 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
23
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 9. 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 9 . 13 GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the
State of California.
Section 9. 14 NOTICES. All notices or other communications
("Notice") to be given pursuant to this Agreement, including the
notices required in Articles _ and _ 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: BFIC, Inc.
Attn: Site Manager
With Courtesy
Copy to: Browning Ferris Industries of California,
Attn: Regional Vice-President
9188 Glenoaks Boulevard, 3rd Floor
Sun Valley, CA 91352
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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
BFIC, INC. , a California corporation
By:
President
By:
Vice-President
COUNTY OF CONTRA COSTA
By:
Chair, Board of Supervisors
Attest: By:
Clerk of Board
Approved as to form: By:
County Counsel
25
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EXHIBIT A
SITE MAP
1
EXHIBIT B
GUARANTY
This Guaranty is made and entered into this day of
, 1994 , by and between the County of Contra Costa
(hereinafter "County") and a
corporation ("Guarantor") .
RECITALS
WHEREAS, ("Operator") ,
an (indirect, wholly-owned subsidiary) of Guarantor desires to
enter into a certain Permanent Transfer Station Franchise
Agreement with the County (the "Agreement") for
Landfill ;
WHEREAS, pursuant to Section of the Agreement, the
County has demanded that Operator obtain certain assurances from
Guarantor, as to all conditions and obligations of the Agreement
to be fulfilled by Operator; and
WHEREAS, in order to induce the County to enter into the
Agreement with Operator, Guarantor desires to provide the County
with said assurances as to all conditions and obligations of the
Agreement to be fulfilled by Operator,
NOW, THEREFORE, the County and Guarantor hereby agree as
follows:
1. Guarantor hereby guarantees to the County the full
performance by Operator of all conditions and obligations in the
Agreement which are to be fulfilled by Operator, provided that
the County has fulfilled all of its obligations under the
Agreement, and in particular., without limiting the foregoing,
1
that the County has provided Operator with the requisite
notice(s) , opportunities to cure, and any option to arbitrate as
provided for in the Agreement.
2 . The County agrees to give Guarantor notice by certified
mail, return receipt requested, at
(Attention: General Counsel)
each time that the County becomes aware of any fact or
circumstance which may give rise to an obligation of Guarantor to
perform pursuant to this Guaranty.
3 . The County shall not sell, assign or otherwise transfer
this Guaranty, or its rights or obligations thereunder, without
the written consent of Guarantor, which consent shall not be
unreasonably withheld if the assignment is to a municipal
corporation.
IN WITNESS WHEREOF, this Guaranty has been executed on the
date first above written.
COUNTY OF CONTRA COSTA
By:
GUARANTOR
By:
Its:
By:
Its:
f
DRAFT
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
LANDFILL FRANCHISE AGREEMENT
AS AMENDED AUGUST _, 1994
r
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1. INTRODUCTORY PROVISIONS . . . . . . . . . . . . . . 3
Section 1. 1 RECITALS INCORPORATION . . . . . . . . . . . 3
Section 1.2 EFFECTIVE DATE . . . . . . . . . . . . . . . 3
Section 1.3 OPERATOR ACKNOWLEDGMENT . . . . . . . . . . 3
Section 1.4 COUNTY DISCRETION AND INTEREST . . . . . . . 4
Section 1.5 USE PERMIT OPERATIVE . . . . . . . . . . . . 4
Section 1. 6 NO PREFERENTIAL TREATMENT . . . . . . . . . 4
ARTICLE 2 . DEFINITIONS . . . . . . . . . . . . . . 5
Section 2 . 1 AGREEMENT . . . . . . . . . . . . o . . . 5
Section 2 .2 BOARD . . . . . . . . . . . . . . . . . 5
Section 2 .3 COUNTY . . . . . . . . . . . . . . . . . . . 5
Section 2 . 4 DIRECTOR . . . . . . . . . . . . . . . . . . 5
Section 2 . 5 DISPOSAL PRIVILEGES . . . . . . . . . . 5
Section 2 . 6 EFFECTIVE DATE . . . . . . . . . . . . . . . 5
Section 2 .7 EMERGENCY . . . . . . . . . . . . . . . . . 5
Section 2 .8 GATE RATE . . . . . . . . . . . . . . . 6
Section 2 .9 HOURS OF ACCESS . . . . . . . . . . . . . 6
Section 2. 10 LANDFILL 6
Section 2 . 11 MANDATED FEES 6
Section 2 . 12 OPERATOR . 6
Section 2. 13 OPERATOR'S PROPRIETARY DISPOSAL FEE . 6
Section 2 . 15 POST-CLOSURE MAINTENANCE . . . . . . . . 7
Section 2 . 16 REGULATORY AGENCIES . . . . . . . . . . . . 7
.Section 2 . 17 SOLID WASTE . . . . . . . . . . . . . . 8
Section 2 . 18 SOLID WASTE PROGRAMS . . . . . . . . . o . 8
Section 2 . 19 SURCHARGE . . . . . . . . . . . . . . . . 8
Section 2 .20 SURCHARGE PAYMENTS . . . . . . . . . 8
Section 2 .21 USE PERMIT . . . . . . . . . . . . 8
Section 2 .22 WASTE STREAM . . . . . o . . . o 9
ARTICLE 3. TERM OF AGREEMENT9
Section 3 . 1 TERM . . . . . . . . 9
ARTICLE 4 . PERFORMANCE OF OPERATOR . . . . . . . 9
Section 4. 1 OPERATION OF LANDFILL . . . . . . . . 9
Section 4 .2 WASTE STREAM . . . . . . . . . . . . 9
Section 4 .3 UNACCEPTABLE WASTE . . . . . . . 10
Section 4 . 4 INSPECTION, INVESTIGATION, AND EVALUATION OF
SITE . . . . . . . . 10
Section 4. 5 PERMITS . . . . . . . . . 11
Section 4. 6 GATE FACILITIES . . . . . . . . . . . . . it
Section 4.7 OPERATION OF GATE FEE COLLECTION SYSTEM 12
Section 4 .8 FEE COLLECTION . . . . . . . . . . . . . 12
Section 4.9 PAYMENT TO COUNTY . . . . . . . . . . . . 13
Section 4 . 10 HOURS OF ACCESS . . . . . . . . 13
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Section 4 . 11 REFUSE HAULING . . . 13
Section 4 . 12 ACCESS ROADS HAUL ROADS AND SERVICE ROADS
. . . . . . . . . . . . . . . . . . 13
Section 4 . 13 LITTER MANAGEMENT . . . . . . . o 14
Section 4 . 14 ENVIRONMENTAL MITIGATION . . . . . 14
Section 4 . 15 RECORDS . . . . . . . . . . . . 14
ARTICLE 5. RATES . . . . . . . . . . . . . . . . 15
Section 5. 1 GATE RATE . . . . . . . . . . . . 15
Section 5.2 MANDATED FEES; PROCEDURE . . . . . . . . . 15
Section 5.3 SURCHARGE . . . . . . . . . . . . . . . 16
Section 5. 4 MAXIMUM PERCENTAGE OF COUNTY FEES AND
SURCHARGES . . . . . . . . . . . . . . . . . . 16
ARTICLE 6. PERSONNEL . . . . . . . . . . . . . . . . . . . . 17
Section 6. 1 QUALIFIED PERSONNEL . . . . . . . . . . . 17
Section 6.2 REMOVAL . . . . . . . . . . . . . . . . . 17
ARTICLE 7 . CLOSURE AND POST-CLOSURE . . . . . . . . . . 17
Section 7 . 1 CLOSURE RESPONSIBILITIES . . . . . . . . . 17
Section 7 .2 FINANCIAL ASSURANCES . . . . . . . . . . . 18
Section 7 . 3 PERFORMANCE . . . . . . . . . . . . . . . 19
Section 7 . 4 SIGNING OF INSTRUMENTS AND DOCUMENTS . . . 19
Section 7 .5 FAILURE TO MEET CLOSURE AND POST-CLOSURE
OBLIGATIONS . . . . . . . . . 19
ARTICLE S. DEFAULT, REMEDIES . . . . . . 20
Section 8. 1 FAILURE TO PERFORM . . . . . . . . . . . . 20
Section 8.2 CONVICTION OF CERTAIN CRIMES o o 21
Section 8.3 CONDEMNATION . . . . . . . . . . 22
Section 8. 4 FORCE MAJEURE . . . . . . . . . . . . . . 22
Section 8. 5 SPECIFIC PERFORMANCE . . . . . . . . . . 22
Section 8. 6 NONEXCLUSIVE REMEDIES . . . . . . . . . . 23
ARTICLE 9 . INSURANCE AND BONDS . . . . . . . . . . . . 23
Section 9 . 1 WORKERS, COMPENSATION . . . . . 23
Section 9.2 PUBLIC LIABILITY . . . . . . . . 23
Section 9 . 3 OTHER INSURANCE PROVISIONS . . . 24
Section 9. 4 FAITHFUL PERFORMANCE SURETY . . 25
ARTICLE 10. GENERAL PROVISIONS . . . . . . . . . . . . 25
Section 10 . 1 GUARANTY BY PARENT OR AFFILIATE 25
Section 10 .2 ATTORNEYSI FEES26
Section 10.3 INDEMNITY AND HOLD HARMLESS AGREEMENT . . 26
Section 10 . 4 ASSIGNMENT . . . . . . . . . . . . . . . 27
(a) Voluntary . . . . . . . . . . . . . . . . . . 27
(b) Involuntary . . . . . . . 28
Section 10. 5 COMPLETE AGREEMENT . . . 28
Section 10. 6 NO THIRD-PARTY BENEFICIARY ENFORCEMENT 29
Section 10.7 ARBITRATION o o . . . . . . . . 29
Section 10.8 CONFLICT . . . . . 29
Section 10. 9 CAPTIONS . . . . . . . . . . . . . 30
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Section 10. 10 DELEGATION BY BOARD . . . . . . . . . . 30
Section 10. 11 SEVERABILITY . . . . . . . . . . . . 31
Section 10.12 MASCULINE GENDER USED . . . . . . . 31
Section 10. 13 GOVERNING LAW . . . . . . . . . . . . . 31
Section 10. 14 NOTICES . . . . . . . . . . . . . . 31
EXHIBITA . . . . . . . . . . . . . . . . . . . . . . . . . . 34
EXHIBITB . . . . . . . . . . . . . . . . . . . . . . . . . . 35
EXHIBITC . . . . . . . . . . . . . . . . . . . . . . . . . . 37
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
iii
1
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
LANDFILL FRANCHISE AGREEMENT
AS AMENDED AUGUST _1 1994
THIS LANDFILL FRANCHISE AGREEMENT (the "Agreement") is made
and entered into this day of August, 1994 , 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 the
responsibility of the County's solid waste planning, management,
implementation, and regulation to the Contra Costa County Board
of Supervisors; and
WHEREAS, the' County, through its Board of Supervisors, has
approved the Landfill, as shown on Exhibit A, which is attached
hereto and incorporated herein by this reference, as a site for
the landfilling of solid waste in the County; and
WHEREAS, Operator has acquired and developed the Landfill
site as a sanitary landfill by obtaining the necessary
governmental approvals and permits; and
WHEREAS, Operator has been operating the Landfill since
May 7 , 1992 ;
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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
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, the County has determined that the siting,
operation and closure of landfills in the County require public
agency control and supervision and that this can best be
accomplished through the use of a contract between the County and
the landfill operator; and
WHEREAS, the County and Operator entered into a prior
Franchise Agreement effective October 31, 1990, providing, among
other things, for County regulation of disposal charges at the
Landfill and limiting the initial term of the franchise to
twenty-five (25) years; and
WHEREAS, the County has determined that there are other
competitive sources for the disposal services offered by the
Landfill , existing both within and outside of Contra Costa County
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and, therefore, the necessity for County regulation of the
Landfill 's rates no longer exists; and
WHEREAS, the County has determined that lower disposal rates
at the Landfill and other solid waste facilities will be fostered
by allowing the Landfill to freely compete for long-term solid
waste disposal agreements with cities and agencies within and
outside of Contra Costa County.
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 to amend and supersede the prior Franchise Agreement
between County and Operator, and adopt this Amended Franchise
Agreement, 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. This Agreement shall be
effective as of August _, 1994 .
Section 1. 3 OPERATOR ACKNOWLEDGMENT. Operator acknowledges
and agrees that the Use Permit (and this Agreement by the
incorporation herein of the Use Permit) provide for and allow
(among other things) funding for mitigation, provisions of
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closure and post-closure costs, payment to County of annual
franchise revenue fees, and otherwise payments to County and
reimbursement of County costs for its governmental administration
of the project entitlements.
Section 1. 4 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 right 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 and/or to
pursue any rights of the County to require ownership of those
landfills or this Landfill .
Section 1. 5 USE PERMIT OPERATIVE. Effective October 31,
1990, the Use Permit has been and is operative pursuant to the
conditions of the ;Use Permit, entitling Operator to all rights
and privileges thereunder.
Section 1. 6 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
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an Agreement. If such material terms are deter 1 such
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other operator subsequent to their determination with respect to
Operator, the County shall offer to amend such terms with respect
to Operator to make them at least as favorable for 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 BOARD. "Board" shall mean the Board of
Supervisors of the County of Contra Costa.
Section 2 . 3 COUNTY. "County" shall mean the County of
Contra Costa, a political subdivision of the State of California.
Section 2 . 4 DIRECTOR. "Director" shall mean the County
Administrator or his designated deputy, other County officer or
employee.
Section 2 . 5 DISPOSAL PRIVILEGES. "Disposal Privileges"
shall mean the privilege to dispose of Solid Waste in accordance
with all laws, ordinances, permits, and applicable requirements.
Section 2 . 6 EFFECTIVE DATE. "Effective Date" shall mean
October 31, 1990.
Section 2 . 7 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,
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.or other soil or geologic movements, as well as such occurrences
as riots, accident, and sabotage.
Section 2 . 8 GATE RATE. "Gate Rate" shall mean the total
fee charged per ton to each customer to dispose of Solid Waste at
the Landfill . The "Gate Rate" may vary as between each customer.
"Gate Rate" shall be synonymous with the phrase "Tipping Fee. "
Section 2 . 9 HOURS OF ACCESS. "Hours of Access" shall be
those times during which Solid Waste may be delivered to the
Landfill for disposal .
Section 2 . 10 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 . 11 MANDATED FEES. "Mandated Fees" shall be those
monies, assessed on a per-ton basis or converted to a per-ton
charge as determined by Operator, 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 . 12 OPERATOR. "Operator" shall mean the holder of
the Use Permit or its assignee.
Section 2 . 13 OPERATOR'S PROPRIETARY DISPOSAL FEE.
"Operator's Proprietary Disposal Fee" shall mean the fees
determined by Operator and charged to each customer of the
Landfill to dispose of Solid Waste at the Landfill . Such fees
may vary between different customers at Operator's discretion.
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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
Landfill .
Section 2 . 15 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 . 16 REGULATORY AGENCIES. "Regulatory Agencies"
shall mean federal , state and local agencies in charge of
regulating the operation and maintenance of 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.
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Section 2 . 17 SOLID WASTE. "Solid Waste" shall mean those
non-hazardous solid waste products defined by Section 40191 of
the California Public Resources Code as it may be amended from
time to time.
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,
accounting and other costs of the County) . "Solid Waste
Programs" shall specifically exclude the planning for, and/or
acquisition of, any landfill .
Section 2 . 19 SURCHARGE. "Surcharge" shall mean a special
per-ton charge in addition to the "Operator's Proprietary
Disposal Fee" applied to all Solid Waste disposal at the
Landfill , as required by the County and this Agreement, for
funding of Solid Waste Programs 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 USE PERMIT. "Use Permit" shall mean the
Contra Costa County Land Use Permit No. 2020-89, together with
all Conditions of Approval applicable thereto.
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Section 2. 22 WASTE STREAM. "Waste Stream" shall mean Solid
Waste generated within the County.
ARTICLE 3 . TERM OF AGREEMENT
Section 3 . 1 TERM. The term of this Agreement shall be for
the period commending on the Effective Date and ending on the
date when the Landfill has received and disposed of by
landfilling thirty eight (38) million tons of Solid Waste.
ARTICLE 4 . PERFORMANCE OF OPERATOR
Section 4 . 1 OPERATION OF LANDFILL. Operator shall operate
the Landfill for the disposal 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 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 more
favorable to the other operators than the provisions of this
Agreement.
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Section 4 . 3 UNACCEPTABLE WASTE. Operator shall not allow
disposal at the Site of material other than Solid Waste unless
specially approved in writing by the Director and otherwise
allowed by the Operator's Permits. It is recognized that some
non-approved materials, including 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 approved by the County. 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 . 4 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. Such 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. Operator's designated
representatives shall be entitled to accompany any such official
while on the Site.
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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.
Section 4 . 5 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 . 6 GATE FACILITIES. Operator shall supply and
maintain gate fee collection facilities. The facilities shall be
consistent with the Use Permit for the Site.
Operator shall supply 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, which approval shall not be unreasonably withheld.
The scales shall be open and in working order during all
Hours of Access at the Landfill , pursuant to Section The
sole access to the Site for vehicles carrying Solid waste shall
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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. The County may, from time to
time during regular business hours, inspect the scales and test
the accuracy of same.
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 . 7 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, except as provided in Sections and
Such operation shall be for all Hours of Access.
Section 4 . 8 FEE COLLECTION. Operator shall collect, count
and account for all Landfill Tipping Fees and waste quantities
from each user at the Site. In the event that no scale is
operable at any 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
Operator.
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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
Surcharge Payments received pursuant to Section 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. 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. 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 holidays as approved by the
Director.
Section 4 . 11 REFUSE HAULING. Operator 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
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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 . 13 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 . 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 RECORDS. Operator shall keep separate and
accurate records for the Landfill as provided in the Use Permit.
County shall give thirty (30) days' written notice to the
Operator in advance of such examination date, except that shorter
periods may be prescribed for the rate review process.
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ARTICLE 5. RATES
Section 5. 1 GATE RATE. The Operator shall charge a Gate
Rate for all Solid Waste disposed of at the Landfill. The Gate
Rate shall consist of the total of the following three
components: (a) the Operator's Proprietary Disposal Fee; (b)
Mandated Fees; and (c) the County Surcharge. Mandated Fees and
the County Surcharge shall be assessed on a per-ton basis, as
determined by the County, and any applicable federal or state
laws or Regulatory Agencies. The Operator's Proprietary Disposal
Fee shall not be set or regulated by the County, but shall be set
by the Operator in its sole discretion. The Operator need not
charge a uniform Proprietary Disposal Fee to all customers, but
may vary the fee as between different customers based on various
factors determined by Operator, including, but not limited to,
the quantity and type of Solid 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 Solid Waste
Stream at the Landfill .
Section 5. 2 MANDATED FEES; PROCEDURE. The Gate Rate will
be adjusted by Operator to accommodate the imposition, change, or
removal of Mandated Fees as such fees are adopted, amended, or
repealed by Regulatory Agencies. Operator shall give County
prompt written notice of the adoption, amendment, or repeal of a
Mandated Fee. A Mandated Fee shall : (1) become part of the Gate
Rate on the date any legislation or regulation imposes the
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Mandated Fee upon Operator; (2) be adjusted in the Gate Rate on
the required date set forth in .any legislation or regulation
changing said Mandated Fee; and (3) be removed from the Gate Rate
upon recapture of the Mandated Fee or in the event of repeal of
the legislation.
Section 5. 3 SURCHARGE. The County may determine and
establish the Surcharge which shall be added to the applicable
Operator's Proprietary Disposal Fee collected as part of the Gate
Rate. Operator will be provided at least ninety (90) days'
written notice of any change in the Surcharge.
The Surcharge imposed by the County under this Agreement
shall not exceed the lowest Surcharge applicable to similar
categories of waste at any other landfill or Solid Waste transfer
or disposal facility in the County, whether publicly or privately
owned or operated and over which the County or other public
agency has the authority to impose such Surcharge.
Section 5. 4 MAXIMUM PERCENTAGE OF COUNTY FEES AND
SURCHARGES. In no event shall the total amount of all County-
imposed Mandated Fees and Surcharges exceed % of the
Operator's Proprietary Disposal Fee.
Furthermore, if Operator should enter into a disposal
agreement with any customer;- the percentage that the total of all
County-imposed Mandated Fees and Surcharges bears to the
Operator's Proprietary Disposal Fee to that particular customer
shall not be increased by the County for the duration of the
disposal agreement.
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ARTICLE 6. PERSONNEL
Section 6. 1 OUALIFIED 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. 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.
Section 6. 2 REMOVAL. The County has the right to request,
in writing, administrative action, including the removal of any
employees 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.
ARTICLE 7 . CLOSURE AND POST-CLOSURE
Section 7 . 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
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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
site closure and post-closure maintenance as required by law.
Section 7 . 2 FINANCIAL ASSURANCES. Operator shall provide
all financial assurances necessary to satisfy the provisions of
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
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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 7 . 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 post-closure activities are funded from the Landfill
rates, it is in the local public interest to assure timely, cost-
effective closure and post-closure 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 7 . 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.
Section 7 . 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, 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
the County may enter the Landfill and perform the site closure
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and post-closure activities required to remedy the default and
expend site closure funds for the costs involved.
ARTICLE 8 . 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 8 . 1 FAILURE TO PERFORM. Should Operator fail to
perform 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 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.
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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 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
bring 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 thirty (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 8 . 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
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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
actions considering the nature of the offense and resolution by
the courts.
Section 8. 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 8 . 4 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 8 . 5 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.
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Section 8 . 6 NONEXCLUSIVE REMEDIES. The rights and remedies
of either party to this Agreement as provided for in this Article
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 above.
ARTICLE 9 . INSURANCE AND BONDS
Section 9 . 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 9 . 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
Operator and County, Operator shall obtain from a good and
responsible company or companies doing insurance business in the
State of California and pay for and 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
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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
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; and
(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
thirty percent (300) for each such five-year period.
Section 9 . 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
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policy pursuant to Section 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.
Section 9 .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 _, 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 to the Closure requirements which will
be separately secured.
ARTICLE 10. GENERAL PROVISIONS
Section 10. 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.
25
Section 10. 2 ATTORNEYS' FEES. In the event of litigation
between the parties arising hereunder, each party shall pay and
bear its own litigation expenses, including attorneys' fees.
Section 10. 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 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 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 attorneys' 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 reasonable attorneys'
26
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 10. 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 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 fifty
percent (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
27
of a controlling percentage of Operator's capital stock. Ally
attempted assignment not provided for above without such consent
shall be void ab initlo.
(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 10. 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
28
1
by both parties, specifically provides that same is an amendment
to this Agreement.
Section 10. 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 10. 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 sea. , 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 10. 8 CONFLICT.
29
1
(a) This Agreement is intended to implement prior Landfill
approvals, including the Use Permit (and Ordinance No. 68-81 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 .
(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 10. 9 CAPTIONS. The captions and headings used in
this Agreement are for convenience and reference only and are not
be to construed as controlling over the text of this Agreement.
Section 10. 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
30
1
Board, County employee, or officer may be appealed de novo to the
Board.
Section 10. 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 10. 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 10. 13 GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the
State of California.
Section 10. 14 NOTICES. All notices or other communications
("Notice") to be given pursuant to this Agreement, including the
notices required in Articles _ and _ hereof, shall be in
writing and shall be deemed given when mailed by registered or
31
1
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: Site Manager
Bailey Road
Pittsburg, CA
With Courtesy
Copy .to: Browning Ferris Industries of California,
Attn: Regional Vice-President
Sun Valley, CA 9
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
32
1
Attest: By:
Clerk of Board
Approved as to form: By:
County Counsel
33
1
EXHIBIT A
SITE MAP
f
EXHIBIT B
DATE:
PERFORMANCE SURETY LETTER OF CREDIT
TO: County Administrator
County of Contra Costa
Martinez, California 94553
as Beneficiary
The undersigned hereby authorizes you to draw on the Bank,
located at , for the account of
the County of Contra Costa up to $1, 000, 000. 00, according to the
terms and conditions set forth below.
This Letter of Credit is intended to assure the performance
of ("Operator") under
the provisions of that certain Landfill Franchise Agreement,
dated , 1990 between the County of Contra Costa
and Operator ("Landfill Agreement") (except as to Article _
relating to Site Closure and Post-Closure requirements) .
This Letter of Credit shall be irrevocable during its term except
as set forth in this paragraph. This Letter of Credit shall
expire one (1) year from the date hereof but shall automatically
be renewed during the term of the Landfill Agreement for an
indefinite number of successive one-year periods unless, no
earlier than sixty (60) days and no later than thirty (30) days
prior to the end of any such one-year period, we provide you with
notice that this Letter of Credit shall not be renewed.
Each draft must state that it is drawn under and pursuant to
this Letter of Credit, No. and contain a
f
declaration executed under penalty of perjury by an authorized
official of the County of Contra Costa which reads substantially
as follows:
1. Operator is in default of Article _ of the Landfill
Agreement for a reason or reasons other than arising under
Article _ of the Landfill Agreement;
2 . The Notices provided for in Section of the Landfill
Agreement have been delivered to Operator; and
3 . This draft is only to secure the funds required to
perform the work which would cure the default if Operator were to
perform the work.
Upon satisfaction of the foregoing conditions, this Letter
of Credit shall be paid in the amount stated in the draft, not to
exceed the full amount hereof. This Letter of Credit is
nontransferable as to the beneficiary. We agree with you that
drafts drawn by you under and in compliance with the terms of
this Letter of Credit will be duly honored upon presentation to
the Bank.
Dated: , 1994
(BANK)
By:
Its:
1
EXHIBIT C
GUARANTY
This Guaranty is made and entered into this day of
, 1994 , by and between the County of Contra Costa
(hereinafter "County") and a
corporation ("Guarantor") .
RECITALS
WHEREAS, ("Operator") ,
an (indirect, wholly-owned subsidiary) of Guarantor desires to
enter into a certain Landfill Franchise Agreement with the County
(the "Agreement") for Landfill ;
WHEREAS, pursuant to Section of the Agreement, the
County has demanded that Operator obtain certain assurances from
Guarantor, as to all conditions and obligations of the Agreement
to be fulfilled by Operator; and
WHEREAS, in order to induce the County to enter into the
Agreement with Operator, Guarantor desires to provide the County
with said assurances as to all conditions and obligations of the
Agreement to be fulfilled by Operator,
NOW, THEREFORE, the County and Guarantor hereby agree as
follows:
1. Guarantor hereby guarantees to the County the full
performance by Operator of all conditions and obligations in the
Agreement which are to be fulfilled by Operator, provided that
the County has fulfilled all of its obligations under the
Agreement, and in particular, without limiting the foregoing,
that the County has provided Operator with the requisite
1
f.
notice(s) , opportunities to cure, and any option to arbitrate as
provided for in the Agreement.
2 . The County agrees to give Guarantor notice by certified
mail, return receipt requested, at
(Attention: General Counsel)
each time that the County becomes aware of any fact or
circumstance which may give rise to an obligation of Guarantor to
perform pursuant to this Guaranty.
3 . The County shall not sell, assign or otherwise transfer
this Guaranty, or its rights or obligations thereunder, without
the written consent of Guarantor, which consent shall not be
unreasonably withheld if the assignment is to a municipal
corporation.
IN WITNESS WHEREOF, this Guaranty has been executed on the
date first above written.
COUNTY OF CONTRA COSTA
By:
GUARANTOR
By:
Its:
By:
Its:
COUNTY COUNSELS OFF/CE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: July 29, 19 94
To: Louise, Aiello
Solid Waste Manager
From: Victor J. Westman, County Counsel
By: Lillian T. Fujii, Deputy Cout /unsel
Re: Agenda Item 2 . 3 ; Keller Franchise Amendment
Attached is thrsOffice' s first draft of an amended Keller
Franchise Agreement .
LTF/amc
cc: Phil Batchelor, County Administrator
Val Alexeeff, Director, GMEDA
I .
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
July 29, 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 of 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
July 29, 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
July 29, 1994 -3- DRAFT
F
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 acknowledged that
sub-county service areas may not be 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
July 29, 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
July 29, 1994 -5- DRAFT
to: compliance with the provisions of this Contract and all
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 ANNUAL PERIOD. "Annual Period" refers to
twelve ( 12) consecutive calendar months beginning the first day
of January of each year throughout the term of this Agreement.
The first Annual Period for the purposes of this Agreement shall
begin on January 1, 1994 .
Section 2 .5 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 .6 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 2.7 COUNTY. "County" shall mean the County of
Contra Costa, a political subdivision of . the State of California.
Section 2 .8 DIRECTOR. "Director" shall mean the County
July 29, 1994 -6- DRAFT
Administrator or his designated deputy, other County officer or
employee.
Section 2.9 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 . 10 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 . 11. 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 . 12 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. 13 HOURS -OF ACCESS. "Hours of Access" shall be
those times during which Solid Waste may be delivered to the
July 29, 1994 -7- DRAFT
Landfill for disposal.
section 2 . 14 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 . 15 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.
Section 2. 16 OPERATOR. "Operator" shall mean the holder of
the Use Permit or its assignee.
Section 2 . 17 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 . 18 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
July 29, 1994 -8- DRAFT
i
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,
such as, but not limited to, California Integrated Waste
Management Board, California Regional Waste 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 Landfillfor
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 mean those
nonhazardous solid waste products defined by Section 40191 of the
California Public Resources Code as it may be amended from time.
to time.
Section 2.22 SOLID WASTE PROGRAMS. "Solid Waste Programs"
July 29, 1994 -9- DRAFT
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,
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 County 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.
July 29, 1994 -10- DRAFT
1
ARTICLE 3. TERM OF AGREEMENT
Section 3. 1 TERM. This Agreement shall remain in effect
until the Operator has disposed of 36.6 million tons of Solid
Waste in the Landfill. It is the parties intent that the term of
this Agreement shall be the current estimated life of the
landfill expressed in terms of current tonnage capacity (36 .6
million tons) .
ARTICLE 4. PERFORMANCE OF OPERATOR
Section 4 . 1 OPERATION OF LANDFILL. Operator shall operate
the Landfill for the disposal 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 WASTE STREAM
(a) 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 a reements shall not. be substantially more favorable
to the other operators than the provisions of this Agreement.
(b) Th County shall not establish sub-County service
areas.
July 29, 19 -11- DRAFT
Section 4 . 3 WASTE TYPES. Operator and the County shall
allow disposal at the Site of Solid Waste as provided herein and
in the Permits; 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 Colid Waste 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 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
July 29, 1994 -12- DRAFT
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. Operator's
designated representative shall be entitled to accompany any such
County official while on ';fie 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 sn-
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.
July 29, 1994 -13- DRAFT
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
approved by the County, in accordance with Section 5. 1of 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
July 29, 1994 -14- DRAFT
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, except as provided in Sections 4 .8, 5. 1 and 5.2 . 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 5 of
this Agreement. In the event that no scale, is operable at any
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 received pursuant to Section to the
County monthly in arrears. Operator shall pay the Surcharge
Payments to County within thirty (30) calendar, days after the
July 29, 1994 -15- DRAFT
11
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.
Section 4 . 13 .REFUSE HAULING. 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. Copies of all contracts for hauling to the Landfill
from transfer stations or otherwise shall be delivered to the
County and the County shall have the right to require compliance
with this Section.
Section 4. 14 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS.
It shall be Operator's responsibility to provide and maintain all
roads required on the property for purposes of transporting
refuse to the actual point of disposal, or transporting earth
July 29, 1994 -16- DRAFT
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.
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
July 29, 1994 -17- DRAFT
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
$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 plus
the percentages thereof of the increase in the Gate Rate since
the first Annual Period.
Notwithstanding the above three paragraphs,- no monetary
penalties will be imposed by the County in the event that
July 29, 1994 -18- DRAFT
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
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
July 29, 1994 -19- DRAFT
and established by Operator at its sole discretion.
Section 6 .2 SURCHARGE. The County may determine and
establish at least once every two years, effective on or .about
the first day of the applicable Annual Period, 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 County shall be thirty percent (30%) of the then
applicable total 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. For Solid Waste received at the Landfill directly
(without transfer or processing at the Acme Interim or Permanent
Transfer Station, 20% of the Base Rate less the amount of all
Mandated Fees imposed and received for use by the County with the
exception any Mandated Fee imposed for any household hazardous
waste program. (In other words, County household hazardous waste
program fee shall not be a "credit" towards the 20% surcharge. )
b. For Solid Waste received at the Landfill via the Acme
Interim Transfer Station or Interim Transfer Station or Acme
Permanent Transfer Station, the -Surcharge shall be 20% of the
Base Rate at the Landfill plus 20% of the proprietary rate
July 29, .1994 -20- DRAFT
charged at the Acme Interim or Acme Permanent Transfer Station,
Less the amount al all Mandated Fees imposed and collected for
use by the County with the exception of any Mandated. Fee imposed
for any household hazardous waste program.
Section 6 .5 DISPOSAL CONTRACTS. For all contracts entered
for the disposal of Solid Waste entered during the period
commencing the effective date of the Agreement and continuing to
March 1, 1995, the Initial Surcharge set forth in Section 6.4
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
July .29, 1994 -21- DRAFT
f
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 Jthe Operator representatives who can be
contacted at any time in case of emergency. These
representatives shall be fully authorized to respond sous to
resolve the emergency.
ARTICLE 8. 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
July 29, 1994 -22- DRAFT
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
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
July 29, 1994 -23- DRAFT
+R R
R
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
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 aad 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
July 29, 1994 -24- DRAFT
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 andusable, 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
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
July 29, 1994 -25- D12FT
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
period of time.
If after the First Notice is provided to Operator, the work
is not performed in accordance with the Director's specifies: 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
July 29, 1994 -26- DRAFT
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
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
July 29, 1994 -28- DRAFT
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
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
July 29, 1994 -34- DRAFT
f
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
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.
July 29, 1994 -29- DRAFT
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
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
308 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.
July 29, 1994 -30- DRAFT
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.
Section 12.4 FAITHFUL PERFORMANCE SURETY. Operator shall,
prior to acceptance ' of waste at the Site under this Agreemant,
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 91 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 to the closure requirements which will
be separately secured.
ARTICLE 13. GENERAL PROVISIONS
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
July 29, 1994 -31- DRAFT
« 1
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
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
July 29, 1994 �, -32- _DRAFT
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
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.
July 29, 1994 -33- DRAFT
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
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.
July 29, 1994 -27- DRAFT
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
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
July 29, 1994 -35- DRAFT
v
Procedure Section 632 .
Section 13.8 CONFLICT.
(a) This Agreement is intended to implement prior
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 3f 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.
(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 aCounty employee or hearing officer any
July 29, 1994 -36- 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 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
July 29, 1994 -37- 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
Copy to: Browning-Ferris Industries of California
Attn: Neil D. Wise, Vice-President
150 Almaden Blvd. , 9th Floor
San Jose, California 95113
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:
Neil D. Wise
Vice-President
COUNTY OF CONTRA COSTA
July 29, 1994 -38- DRAFT
By:
Chair, Board of Supervisors
ATTEST: By:
Clerk of the Board
APPROVED AS TO FORM: By:
County Counsel
ltf: 1l.kc1o729.94
July 29, 1994 -39 DRAFT
D R A F T
KELLER CANYON LANDFILL
FIRST AMENDED
LANDFILL FRANCHISE AGREEMENT
August 3, 1994
County of Contra Costa
.State of California
TABLE OF CONTENTS
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. . . . . . . . . . . . . . 5
Section 2 .4 ANNUAL PERIOD. . . . . . . . . . . . . . 6
Section 2 .5 BASE RATE. . . . . . . . . . . . . . . . 6
Section 2.6 COMMENCEMENT DATE. . . . . . . . . . . . . 6
Section 2.7 COUNTY. . . . . . . . . . . . . . . . . . . 6
Section 2 .8 DIRECTOR. . . . . . . . . . . . . . . . . . 6
Section 2 .9 EMERGENCY. . . . . 7
Section 2 . 10 GATE FEE COLLECTION SYSTEM. . . . . . . . 7
Section 2 . 11 GATE RATE. . . . . . . . . . . . . . . . 7
Section 2 . 12 HOURS OF OPERATION. . . . . . . . . . . . 7
Section 2. 13 HOURS OF ACCESS. . . . . . . . . . . . . . 7
Section 2 . 14 LANDFILL. . . . . . . . . . . . . . . . . 8
Section 2. 15 MANDATED FEES. . . . . . . . . . . . . . . 8
Section 2 . 16 OPERATOR. . . . . . . . . . . . . . . . . 8
Section 2 . 17 PERMITS. . . . . . . . . . . . . . . . . . 8
Section 2 . 18 POST-CLOSURE MAINTENANCE. . . . . . . . . 8
Section 2 . 18 REGULATORY AGENCIES. . . . . . . . . . 9
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. . . . . . . . . . . 9
Section 2 .23 SPECIAL HANDLING WASTE. . . . . . . . . . 10
Section 2.24 SURCHARGE. . . . . . . . . . . . . . . . . 10
Section 2.25 SURCHARGE PAYMENTS. . . . . . . . . . . . 10
Section 2.26 USE PERMIT. . . . . . . . . . . . . 10
ARTICLE 3. TERM OF AGREEMENT 11
ARTICLE 4 . PERFORMANCE OF OPERATOR 11
Section 4. 1 OPERATION OF LANDFILL. . . . . . . . . . . 11
Section 4.2 WASTE STREAM . . . . . . . . . . . . 11
Section 4.3 WASTE TYPES. . . . . . . . . . . . . . . . 12
Section 4 .4 UNACCEPTABLE WASTE. . . . . . . . . 12
Section 4 .5 INSPECTION, INVESTIGATION, AND EVALUATION
August 3, 1994 -i- DRAFT
OFSITE. . . . . . . . . . . . . . . . . . . . . 13
Section 4 .6 PERMITS. . . . . . . . . . . . . . . . . . 13
Section 4 .7 STATUS OF TITLE. . . . . . . . . . . . . . 14
Section 4.8 GATE FACILITIES. . . . . . . . . 14
Section 4 .9 OPERATION OF GATEFEE COLLECTION SYSTEM. 15
Section 4 . 10 FEE COLLECTION. . . . . . . 15
Section 4 . 11 PAYMENT TO COUNTY. . . . . . . . . . . . . 15
Section 4. 12 HOURS OF ACCESS.1 . . . . . . 16
Section 4. 13 REFUSE HAULING. 1 . . . . . . 16
Section 4 . 14 ACCESS ROADS, HAUL ROADS AND SERVICE
ROADS. i 16
Section 4. 15 LITTER MANAGEMENT. . o 17
Section 4 . 16 ENVIRONMENTAL MITIGATION. 17
Section 4 . 17 RECYCLING/RESOURCE RECOVERY PROGRAMS. 17
Section 4 . 18 ACTIVITIES REPORT. . . . . 17
Section 4 . 19 PENALTY SCHEDULK 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. . . . . . . . . 19
ARTICLE 6. RATES 19
Section 6 . 1 BASE RATE. . . . . . . . . . . . . . 19
Section 6 .2 SURCHARGE. .' 21
Section 6 .3 GATE RATE. . . 21
Section 6 .4 INITIAL SURCHARGE. . . . . . . . . . . . . 21
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
August 3, 1994 -11-
DRAFT
Section 11.7 NONEXCLUSIVE REMEDIES. . . . . . . . . 30
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. . . . . . . . . . . . . . . 38
Section 13. 12 MASCULINE GENDER USED. . . . . . . . . . 39
Section 13. 13 GOVERNING LAW. . . . . . . . . . . . . . 39
Section 13. 14 NOTICES. . . . . . . . . . . . . . . . 39
August 3, 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 3, 1994 -1- DFZAFT
A
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 of 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 3, 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 3, 1994 -3- DRAFT
1
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 acknowledged that
sub-county service areas may not be 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 3, 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
August 3, 1994 -5- DRAFT
. 1
to: compliance with the provisions of this Contract and all
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 ANNUAL PERIOD. "Annual Period" refers to
twelve (12) consecutive calendar months beginning the first day
of January of each year throughout the term of this Agreement.
The first Annual Period for the purposes of this Agreement shall
begin on January 1, 1994 .
Section 2.5 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 2.6 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 2.7 COUNTY. "County" shall mean the County of
Contra Costa, a political subdivision of the State of California.
Section 2.8 DIRECTOR. "Director" shall mean the County
August 3, 1994 -6- DFLAFT
Administrator or his designated deputy, other County officer or
employee.
Section 2.9 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. 10 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. 11 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 2.12 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 incompliance
with the Use Permit, the Solid Waste Facilities Permit and this
Agreement will be allowed.
Section 2.13 HOURS OF ACCESS. "Hours -of Access" shall be
those times during which Solid Waste may delivered to the
August 3, 1994 -7- DRAFT
Landfill for disposal.
Section 2. 14 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. 15 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.
Section 2. 16 OPERATOR. "Operator" shall mean the holder of
the Use Permit or its assignee.
Section 2. 17 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. 18 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
August 3, 1994 -8- DRAFT
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,
such as, but not limited to, California Integrated Waste
Management Board, California Regional Waste 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 mean those
nonhazardous solid waste products defined by Section 40191 of the
California Public Resources Code as it may amended from time
to time.
Section 2 .22 SOLID WASTE PROGRAMS. "Solid Waste Programs"
August 3, 1994 -9- DRAFT
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,
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.
August 3, 1994 -10- DRAFT
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. 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.
ARTICLE 4 . PERFORMANCE OF OPERATOR
Section 4. 1 OPERATION OF LANDFILL. Operator shall operate
the Landfill for the disposal 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 WASTE STREAM
(a) 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.
(b) The County shall not establish sub-County service
areas.
August 3, 1994 -11- DRAFT
Section 4.3 WASTE TYPES. Operator and the County shall
allow disposal at the Site of Solid Waste as provided herein and
in the Permits; 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 .Solid Waste 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 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
August 3, 1994 -12- DR �'T
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
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.
August 3, 1994 -13- DRAFT
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
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
August 3, 1994 -14- DRAFT
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, except as provided in Sections 4 .8, 5. 1 and 5.2. 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
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 received pursuant to Section to the
County monthly in arrears. Operator shall pay the Surcharge
Payments to County within thirty (30) calendar days after the
August 3, 1994 -15- DRAFT
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.
Section 4. 13 REFUSE HAULING. 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. Copies of all contracts for hauling to the Landfill
from transfer stations or otherwise shall be delivered to the
County and the County shall have the right to require compliance
with this Section.
Section 4. 14 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS.
It shall be Operator's responsibility to provide and maintain all
roads required on the property for purposes of transporting
refuse to the actual point of disposal, or transporting earth
August 3, 1994 -16- DRAFT
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.
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
August 3, 1994 -17- DRAFT
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
$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 plus
the percentages thereof of the increase in the Gate Rate since
the first Annual Period.
Notwithstanding the above three paragraphs, no monetary
penalties will be imposed by the County in the event that
August 3, 1994 -18- DRAFT
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
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
August 3, 1994 -19- DRAFT
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") . For customers other than the Acme
Interim or Permanent Transfer Station, 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 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
August 3, 1994 -20- DRAFT
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
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. For Solid Waste received at the Landfill directly
(without transfer or processing at the Acme Interim or Permanent
August 3, 1994 -21- DRAFT
Transfer Station, $ 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. (In other
words, the fees described in the preceding sentence shall not be
a "credit" towards the $ surcharge. )
b. For Solid Waste received at the Landfill via the Acme
Interim Transfer Station or Interim Transfer Station or Acme
Permanent Transfer Station, the Surcharge shall be . % of the
Base Rate at the Landfill plus % of the proprietary rate
charged at the Acme Interim or Acme Permanent Transfer Station,
Less the amount of all Mandated Fees imposed and collected for
use by the County with the exception of any Mandated Fees imposed
for 1) any household hazardous waste program, 2) any fee imposed
pursuant to Public Resources Code section 41900, 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.
Section 6.5 DISPOSAL CONTRACTS. For all contracts entered
August 3, 1994 -22- DRAFT
♦ y
for the disposal of Solid Waste entered during the period
commencing the effective date of the Agreement and continuing to
March 1, 1995, the Initial Surcharge set forth in Section 6 .4
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
August 3, 1994 -23- DRAFT
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. 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.
August 3, 1994 -24- DRAFT
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
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
August 3, 1994 -25- DRAFT
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
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
August 3, 1994 -26- DF2AFT
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
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
August 3, 1994 -27- DRAFT
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 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
August 3, 1994 -28- DRAFT
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 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
August 3, 1994 -29- DRAFT
a
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 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
August 3, 1994 -30-
DRAFT
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
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
August 3, 1994 -31- DRAFT
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, 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
August 3, 1994 -32- DRAFT
required by law. Operator shall be solely liable for any claims
or liabilities caused by its failure to maintain insurance
required by law.
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 to the closure requirements which will
be separately secured.
ARTICLE 13. GENERAL PROVISIONS
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
between the parties arising hereunder, each party shall pay and
bear its own litigation expenses, including attorney's fees.
August 3, 1994 -33- DRAFT
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
reasonable attorney's fees, that Operator may make by reason of
such matters and, if requested by Operator, shall defend any such
August 3, 1994 -34- DRAFT
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
of a controlling percentage of Operator's capital stock. Any
attempted assignment not provided for above without such consent
August 3, 1994 -35- DRAFT
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 ?.ttachment 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
by both parties, specifically provides that same is an amendment
to. this Agreement.
August 3, 1994 -36- DRAFT
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
Landfill approvals, including the Use Permit (and Ordinance No.
88-81 if applicable to the Landfill) . In the case of any
August 3, 1994 -37- DRAFT
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.
(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
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,
August 3, 1994 -38- DF2AFT
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 continded 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
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
August 3, 1994 -39- DRAFT
A
Attn: Boyd M. Olney, Jr.
441 North Buchanan Circle
Pacheco, California 94553
With Courtesy
Copy to: Browning-Ferris Industries of California
Attn: Neil D. Wise, Vice-President
150 Almaden Blvd. , 9th .Floor
San Jose, California 95113
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:
Neil D. Wise
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.kc1camd.dr2
August 3, 1994 -40- DRAFT
COUNTY COUNSEL'S OFF/CE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: July 29, 1994
To: Louise, Aiello
Solid Waste Manager
From: Victor J. Westman, County Counsel
By: Lillian T. Fujii, Deputy Cout /unsel
Re: Agenda Item 2 . 3 ; Keller Franchise Amendment
Attached is this Office' s first draft of an amended Keller
Franchise Agreement .
LTF/amc
cc: Phil Batchelor, County Administrator
Val Alexeeff, Director, GMEDA
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
July 29, 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 of 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
July 29, 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
July 29, 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 acknowledged that
sub-county service areas may not be 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
July 29, 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
July 29, 1994 -5- DRAFT
to: compliance with the provisions of this Contract and all
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 ANNUAL PERIOD. "Annual Period" refers to
twelve ( 12) consecutive calendar months beginning the. first day
of January of each year throughout the term of this Agreement.
The first Annual Period for the purposes of this Agreement shall
begin on January 1, 1994 .
Section 2 .5 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 2.6 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 2.7 COUNTY. "County" shall mean the County of
Contra Costa, a political subdivision of the State of California.
Section 2.8 DIRECTOR. "Director" shall mean the County
July 29, 1994 -6- DRAFT
Administrator or his designated deputy, other County officer or
employee.
Section 2 .9 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 . 10 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 . 11. 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. 12 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. 13 HOURS -OF ACCESS. "Hours of Access" shall be
those times during which Solid Waste may be delivered to the
July 29, 1994 -7- DRAFT
Landfill for disposal.
Section 2 . 14 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 . 15 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.
Section 2 . 16 OPERATOR. "Operator" shall mean the holder of
the Use Permit or its assignee.
Section 2 . 17 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 . 18 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
July 29, 1994 -8- DRAFT
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,
such as, but not limited to, California Integrated Waste
Management Board, California Regional Waste 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 Landfillfor
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 mean those
nonhazardous solid waste products defined by Section 40191 of the
California Public Resources Code as it 'may be amended from time
to time.
Section 2.22 SOLID WASTE PROGRAMS. "Solid Waste Programs"
July 29, 1994 -9- DRAFT
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,
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 County 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.
July 29, 1994 -10- DRAFT
ARTICLE 3. TERM OF AGREEMENT
Section 3. 1 TERM. This Agreement shall remain in effect
until the Operator has disposed of 36.6 million tons of Solid
Waste in the Landfill. It is the parties intent that the term of
this Agreement shall be the current estimated life of the
landfill expressed in terms of current tonnage capacity (36 .6
million tons) .
ARTICLE 4. PERFORMANCE OF OPERATOR
Section 4 . 1 OPERATION OF LANDFILL. Operator shall operate
the Landfill for the disposal 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 WASTE STREAM
(a) 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.
(b) The County shall not establish sub-County service
areas.
July 29, 1994 -11- DRAFT
Section 4 . 3 WASTE TYPES. Operator and the County shall
allow disposal at the Site of Solid Waste as provided herein and
in the Permits; 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 Solid Waste 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 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
July 29, 1994 -12- DRAFT
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. Operator's
designated representative shall be entitled to accompany any such
County official while 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.
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.
July 29, 1994 -13- DRAFT
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
approved by the County, in accordance with Section 5. 1of 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
July 29, 1994 -14- DRAFT
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, except as provided in Sections 4 .8, 5. l and 5.2 . 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
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 received pursuant to Section to the
County monthly in arrears. Operator shall pay the Surcharge
Payments to County within thirty (30) calendar days after the
July 29, 1994 -15- DRAFT
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..
Section 4. 13 REFUSE HAULING. 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. Copies of all contracts for hauling to the Landfill
from transfer stations or otherwise shall be delivered to the
County and the County shall have the right to require compliance
with this Section.
Section 4. 14 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS.
It shall be Operator's responsibility to provide and maintain all
roads required on the property for purposes of transporting
refuse to the actual point of disposal, or transporting earth
July 29, 1994 -16- DRAFT
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.
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
July 29, 1994 -17- DRAFT
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
. $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 plus
the percentages thereof of the increase in. the Gate Rate since
the first Annual Period.
Notwithstanding the above three paragraphs, no monetary
penalties will be imposed by the County in the event that
July 29, 1994 -18- DRAFT
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
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
July 29, 1994 -19- DRAFT
and established by Operator at its sole discretion.
Section 6 .2 SURCHARGE. The County may determine and
establish at least once every two years, effective on or about
the first day of the applicable Annual Period, 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 County shall be thirty' percent (30%) of the then
applicable total 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. For Solid Waste received at the Landfill directly
(without transfer or processing at the Acme Interim or Permanent
Transfer Station, 20% of the Base Rate less the amount of all
Mandated Fees imposed and received for use by the County with the
exception any Mandated Fee imposed for any household hazardous
.waste program. (In other words, County household hazardous waste
program fee shall not be a "credit" towards the 20% surcharge. )
b. For Solid Waste received at the Landfill via the Acme
Interim Transfer Station or Interim Transfer Station or Acme
Permanent Transfer Station, the Surcharge shall be 20% of the
Base Rate at the Landfill plus 20% of the proprietary rate
July 29, 1994 -20- DRAFT
charged at the Acme Interim or Acme Permanent Transfer Station,
Less the amount al all Mandated Fees imposed and collected for
use by the County with the exception of any Mandated Fee imposed
for any household hazardous waste program.
Section 6.5 DISPOSAL CONTRACTS. For all contracts entered
for the disposal of Solid Waste entered during the period
commencing the effective date of the Agreement and continuing to
March 1, 1995, the Initial Surcharge set forth in Section 6 .4
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
July .29, 1994 -21- DRAFT
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. 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
July 29, 1994 -22- DRAFT
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
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
July 29, 1994 -23- DRAFT
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
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
July 29, 1994 -24- DRAFT
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
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
' July 29, 1994 -25- DRAFT
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
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
July 29, 1994 -26- DRAFT
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
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.
July 29, 1994 -27- DRAFT
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
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
July 29, 1994 -28- DRAFT
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
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.
July 29, 1994 -29- DRAFT
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
Agreement, the Use Permit, or any other County ordinance,
resolution or other rule relating to the operation, maintenance
or closure of the Landfill, aL 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.
July 29, 1994 -30- DRAFT
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.
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 to the closure requirements which will
be separately secured.
ARTICLE 13. GENERAL PROVISIONS
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
July 29, 1994 -31- DRAFT
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
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
J
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
July 29, 1994 -32- DRAFT
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
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
obli'gation 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.
July 29, 1994 -33- DRAFT
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
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 orother 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
July 29, 1994 -34- DRAFT
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
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
July 29, 1994 -35- DRAFT
Procedure Section 632 .
Section 13.8 CONFLICT.
(a) This Agreement is intended to implement prior
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.
(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 aCounty employee or hearing officer any
.July 29, 1994 -36- 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
July 29, 1994 -37- 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
Copy to: Browning-Ferris Industries of California
Attn: Neil D. Wise, Vice-President
150 Almaden Blvd. , 9th Floor
San Jose, California 95113
A chaAge 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•
Neil D. Wise
Vice-President
COUNTY OF CONTRA COSTA
July 29, 1994 -38- DRAFT
By:
Chair, Board of Supervisors
ATTEST: By:
Clerk of the Board
APPROVED AS TO FORM: By:
County Counsel
ltf: 11.kc1c729.94
:a
July 29, 1994 -39- DRAFT
Citizens United 2232 Concord Dr. Pittsburg, CA (510)458-4419
Citizens dedicated to the environment and dealing with environmental health issues
Contra Costa County Board of Supervisors July 27, 1994
651 Pine St.
Martinez ,CA 94553 p c c ®c
RECEI V G®
Tom Powers, Honorable Chair
Dear Chair Powers: r��2 9 04
laud the Board of Supervisors for th �O
We applaud the
latin
pp p g garbage
rates at the Keller Canyon Landfill in an effor to reduce those rates on the
consumers of Contra Costa County.
However, it is quite dismaying that the owners of Keller Dump after over 6 months
of requesting deregulation from the Board has not come thru on their promises of
rate relief for Contra Costa Consumers if the Board would allow them to set their
own rates.
Unfortunately Keller operators have kept their rates skyhigh. So much for the public
welfare!
Citizens United main intent on sending the Board this letter is with respect to
Special Condition of Approval 35.3 of the Land use Permit 2020-89 for Keller
Canyon Landfill.
Condition 35.3 has to do with the Property Valuation Compensation Program.
If the last meeting of the Keller Canyon Local Advisory Committee was any
indication of losses homeowners have suffered as a result of the siting,
construction, and operations of the Keller Dump then the total losses will be
substantial in the Hillsdale Community of Pittsburg.
Those losses per the LUP, COP 35.3 are to be considered a pass-through business
expense for the purposes of rate-setting.
Now that the Board has deregulated Keller rates there is no mechanism to pay for
the losses. Unlike the Transportation Impact Fee and the Open Space and
Agricultural Fee trust funds, the property losses are not covered by a per ton fee
assessed on waste received at the landfill and placed into trust.
Additionally the Property losses will not be mitigated by less waste going to the
landfill like the other impacts to roads, etc. Those other impacts are properly
mitigated when less or more wastes goes to the landfill by less or more funds being
collected.
If Keller closed tommorow the property-owners of Hillsdale will be just as impacted
by the stigma of having to disclose a landfill upwind of and in close proximity to
their properties. The landfill also would still be required to continue to operate
under extensive monitoring requirements for years to come.
Also rumors are rampant that the Keller Canyon Landfill Company alledgedly is
deciding whether to file for bankruptcy under the U.S. bankruptcy codes.
In each of these instances the Hillsdale homeowners losses are a completely
uncovered liability.
As this is the case, Citizens United on behalf of all the Hillsdale homeowners
formally requests that the Board of Supervisors as a condition of their deregulating
Keller Canyon rates amend the land use permit to require the immediate posting of
a bond by the parent corporation of the Keller Canyon Landfill Company - Browning
Ferris Industries, Inc. in the amount of $25,000,000.
This action would be prudent and would reduce the exposure to the County of
having the risk of this liability being placed squarely on the County's shoulders and
the costly litigation that is sure to ensue.
The County approved the siting of the landfill, issued a land use permit for the
project, entered into a franchise agreement with the owners, and benefits monetarily
from the receipt of wastes at the landfill. Therefore it is legally incumbent on the
County to pay for the losses to adjacent homeowners if the owner/operators of the
Keller Dump fail in their contractual obligations.
We respectfully enter this request into the public record and we hope the Board will
immediately take up our request.
Sincerel ,
Fon FRANA ye. A i�c q
Frank R. Aiello, Chair