HomeMy WebLinkAboutMINUTES - 08081995 - SD11 SD. 11
TO: BOARD OF SUPERVISORS
FROM: Val Alexeeff, Director, Growth Management and Economic Development
Victor J. Westman, County Counselkwo
DATE: August 8, 1995
SUBJECT: Joining Central Contra Costa Solid Waste Authority
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS : Consider actions to be taken on:
1 . First Amended Joint Exercise of Powers Agreement for the
Central Contra Costa Solid Waste Authority and ratification of
County membership therein.
2 . Resolution Authorizing Central Contra Costa Solid Waste
Authority to enter Solid Waste Collection Agreements and
delegating County franchise authority.
3 . Transitional Agreements Between County and Central Contra
Costa Sanitary District for the Collection of Solid Waste:
A. Within Unincorporated Areas of North Concord, Pacheco and
Clyde.
B. Within Unincorporated Areas to be within the Jurisdiction
of the Authority (unincorporated South County areas of
Danville, Alamo , etc. ) .
Consider County' s acceptance of the terms of this Agreement
(unincorporated South County area) being made contingent
upon the Central Contra Costa Sanitary District agreeing, in
writing, that an amount equal to the franchise fees
established by the County for the said area for the period
commencing April 1, 1996 be paid by the District to the
County.
4 . Authorizing staff (GMEDA Director and County Counsel) to
review final documents for conformance with the Board' s action as
(See continuation)
CONTINUED ON ATTACHMENT: xx YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD
COMMITTEE
APPROVE OTHER
SIGNATURE(S) :
ACTION OF BOARD ON August 8 , 1995 APPROVED AS RECOMMENDED x OTHER x
SEE ADDENDUM ATTACHED FOR BOARD ACTION
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
x 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.
Orig: Community Development Department ATTESTED August 8 , 1995
cc: County Counsel PHIL BATCHELOR, CLERK OF
GMEDA THE BOARD OF SUPERVISORS
5a: \centrljp. 895
AND COUNT ADMIN77TOR
BY , DEPUTY
RECOMMENDATIONS - CONTINUED:
well as take any ministerial action necessary to finalize the
aforementioned membership in the Central Contra Costa Solid Waste
Authority (e.g. , filling in dates in the final document) , and
authorizing GMEDA Director to file any further documents
necessary for membership in said Authority with the Clerk of the
Board.
FISCAL IMPACT:
Short term: Under the Transitional Agreement for the North
Concord/Pacheco/Clyde area, the County would assume franchising
responsibility without benefit of franchise fees .
Long term: The Franchise Agreement to be issued to BFI
pursuant to the RFP process provides for the County' s collection
of franchise fees for the unincorporated areas.
BACKGROUND/REASONS FOR RECOMMENDATIONS:
For the past several months, the Board' s Solid Waste
Committee has been participants at meetings with the Central
Contra Costa Solid Waste Authority ("Authority") concerning the
County' s joining the JPA for the provision of solid waste
services in the unincorporated territory in the Central/South
County area. Past substantial concerns of County staff have been
addressed in the current documents (most of which documents have
been before the Committee) . These documents are briefly
discussed in the following paragraphs .
1. First Amended Joint Exercise of Powers Agreement
for the Authority.
As the Board members are aware, the Authority (currently the
City of Walnut Creek and the Central Contra Costa Sanitary
District ("Sanitary District") ) issued a Request For Proposals
(RFP) for the provision of solid waste collection service within
the territories represented by the member agencies, including the
unincorporated territory within the Sanitary District' s
jurisdiction. The Board' s Solid Waste Ad Hoc Committee has been
the principal participants in meetings with the Authority for the
County' s joining the JPA (for the unincorporated territory within
the jurisdiction of the Sanitary District) and subsequent or
concurrent delegation to the Authority, of the County' s
franchising authority in the unincorporated territory within the
Sanitary District ' s jurisdiction.
As the Board members are also aware, Browning Ferris
Industries submitted the lowest bid for solid waste collection
services, and Valley Waste Management submitted the lowest bid
for recycling services.
2. Resolution Authorizing Authority to enter Solid Waste
Collection Agreement and Delegations.
The Resolution Authorizing the Authority to enter Solid
Waste Collection Agreements delegates to the Authority for a term
of eight years (with a possibility of this term being extended
for two years) , the County' s franchising authority for specified
unincorporated areas within the jurisdiction of the Sanitary
District.
The resolution also delegates to the Authority,
implementation of the County' s Source Reduction and Recycling
Element ("SRRE") and Household Hazardous Waste Element ("HHWE")
for specified unincorporated areas within the jurisdiction of the
Sanitary District.
Delegation is subject to the limitation that any franchise
.t
agreement entered into by the Authority shall be substantially
similar to franchise agreements prepared by the Authority dated
August 3 , 1995 , appropriate amendments to the Joint
Exercise of Authority Agreement being adopted, and upon the
County reserving the right to withdraw its delegation at any
time, provided the County must continue to administer the
Authority negotiated and entered contract. The above-referenced
franchise agreement provides for the county' s levy of franchise
fees in the unincorporated area.
3. Transitional Agreements Between County and Central
Contra Costa Sanitary District:
A. North Concord, Pacheco, Clyde
This agreement provides for the Sanitary District' s
assigning its franchise with Pleasant Hill Bayshore Disposal to
the County for the remainder of the franchise term (March 31,
1996 expiration date) . The Sanitary District would continue to
administer AB 939 recycling activities for the area, including
activities being undertaking pursuant to the Sanitary District' s
franchise agreement with Pleasant Hill Bayshore Disposal, Inc. ,
until the franchise' s termination on March 31, 1996.
B. Unincorporated South County Area (Danville, Alamo,
etc. )
This agreement provides for the Sanitary District delegating
to the County (for the County' s delegation to the JPA) , the
District ' s authority to franchise solid waste collection service
in the unincorporated south county area within the jurisdictional
territory of the Sanitary District, upon the expiration of the
current Sanitary District - Valley Waste Management franchise
(March 31, 1996 expiration date) .
The Sanitary District will retain all franchise fees and
will administer the franchise until its termination on March 31,
1996. This transitional agreement also provides for a one-year
extension of the Sanitary District-Valley Waste Management
franchise. The County' s approval of this transitional agreement
should be made contingent on the County receiving franchise fees
from this area commencing April 1, 1996.
4. Final Transitional Agreements .
On Tuesday, August 1, 1995, we were advised by an attorney
for the Sanitary District that on Friday, July 28, the Sanitary
District made further changes to the transitional agreements . As
of the date of the writing of this report, County staff has not
been advised that the only "conceptual" change requested concerns
allocation of Acme litigation costs. However, final drafts have
not been presented to County staff for presentation to the Board.
Prior to this latest communication, County staff reviewed drafts
of the documents, and had presented staff' s comments (based upon
Committee expressed concerns) to the District' s legal counsel .
If final documents are received from the District before
Tuesday, August 8, 1995, staff will submit them to the Clerk of
the Board for inclusion in the Board' s packet.
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ADDENDUM
The Board of Supervisors on this date considered the
recommendations of Val Alexeeff, Director, Growth Management and
Economic Development relative to joining the Central Contra Costa
Solid Waste Authority.
Mr. Alexeeff presented the staff report on the issue .
The Board discussed various issues and concerns .
The following persons presented testimony:
Sue Rainey, 160 Bixley Place, Walnut Creek;
Roger Dolan, Centra Contra Costa Sanitary District .
The Board deferred to the afternoon calendar further
consideration of the matter, requesting staff to address concerns
that had been expressed this morning.
In the afternoon, following consideration of revised
language worded to capture the spirit of the morning discussion,
and further Board discussion, Supervisor DeSaulnier moved the
staff recommendations with the changes that were before the Board
on page 8 of the transitional agreements .
With the understanding that the change would be in both
transitional agreements, Supervisor Smith seconded the motion.
IT IS BY THE BOARD ORDERED that the First Amended Joint
Exercise of Powers Agreement for the Central Contra Costa Solid
Waste Authority and ratification of the County membership therein
is APPROVED; Resolution 95/638 authorizing Central Contra Costa
Solid Waste Authority to enter Solid Waste Collection Agreements
and delegating County franchise authority is ADOPTED; Transition
Agreements between the County and Central Contra Costa Sanitary
District are APPROVED as amended; GMEDA Director and County
Counsel are AUTHORIZED to review final documents for conformance
with the Board' s action as well as take any ministerial action
necessary to finalize the aforementioned membership in the
Central Contra Costa Solid Waste Authority; AUTHORIZED the GMEDA
Director to file any further documents necessary for membership
in said Authority with the Clerk of the Board.
BOARD OF SUPERVISORS, CONTRA COSTA COUNTY, CALIFORNIA
Re: Authorizing Central Contra Costa RESOLUTION NO. 95/ 638
Solid Waste Authority to enter
Solid Waste Collection
Agreements
The Board of Supervisors of Contra Costa County RESOLVES THAT:
WHEREAS, the Legislature of the State of California, by enactment of the
California Integrated Waste Management Act of 1989 (hereinafter "AB 939"), as set
forth in Public Resources Code §§ 40000 et seq., as it may be amended from time to
time, has declared that it is within the public interest to authorize and require local
agencies, including cities, to make adequate provisions for solid waste handling within
their jurisdiction; and
WHEREAS, County of Contra Costa, pursuant to Public Resources Code §
40000, Government Code § 25827, the California Constitution and preexisting laws,
could have historically provided for the collection, transfer and disposal of solid waste
generated within its unincorporated limits through issuance of exclusive collection
franchises; and
WHEREAS, Central Contra Costa Sanitary District (hereinafter "CCCSD"),
pursuant to its enabling act, case law and as otherwise provided for in Public
Resources Code §§40000 et seq., has historically provided for the collection, transfer
and disposal of solid waste generated within certain portions of its jurisdictional
boundaries in some unincorporated County areas through issuance of exclusive
collection franchises; and
WHEREAS, Central Contra Costa Solid Waste Authority (hereinafter
"CCCSWA") is a joint powers agency formed pursuant to Government Code § 6500, et
seq. and currently is and will be comprised of member agencies of the City of Walnut
Creek, Contra Costa County and CCCSD; and
WHEREAS, a joint powers agency, as a separate public entity, may exercise
those powers commonly held by its respective members, to the extent the member
agencies provide for the exercise of such common powers to the joint powers agency,
and accordingly, CCCSWA, through the Joint Powers Agreement, as it is to be
amended, will have the authority to contract for the collection, transfer and disposal of
solid waste generated within specified jurisdictional boundaries of its member agencies;
and
WHEREAS, the Contra Costa County has concluded that franchising of solid
waste collection on a regional basis within the CCCSWA jurisdictional boundaries will
serve to consolidate coordination and planning of such collection, transfer and disposal
activities, while providing an opportunity to maximize the ratepayers' market power
while providing for economies of scale, thus benefiting the public served by CCCSWA,
including the citizens of involved unincorporated County areas, and
WHEREAS, AB 939 has authorized and directed counties' among other public
agencies, to develop and implement plans with respect to the Source Reduction and
Recycling Elements and Household Hazardous Waste Elements as specified therein;
and
RESOLUTION NO. 95/ 6 3 8
1
WHEREAS, the Contra Costa County has concluded that implementation of
these Source Reduction and Recycling Elements and Household Hazardous Waste
Elements can be accomplished most efficiently through use of CCCSWA to administer
and coordinate implementation on a regional basis for certain specified unincorporated
areas; and
WHEREAS, franchise agreements have been prepared by the CCCSWA for use
in entering into franchises between CCCSWA and Browning-Ferris Industries for
Refuse Collection, Transfer and Disposal, and between CCCSWA and Valley Waste
Management for Recycling and Green Waste Collection, Processing and Marketing
Services; and
WHEREAS, Contra Costa County is willing to delegate its solid waste collection
franchise authority (for refuse, recycling and green waste) to CCCSWA for specified
unincorporated areas, provided that the terms of the franchises therefor to be executed
by CCCSWA provide for the basic provisions and are in a form substantially similar to
the above agreements prepared by CCCSWA dated August 3 , 1995
NOW, THEREFORE, the Board of Supervisors of Contra Costa County resolves
as follows:
1. With this County's membership in CCCSWA, this County delegates its
authority to CCCSWA to enter into contracts concerning solid waste collection, transfer
and disposal for the territory within the jurisdictional boundaries of the County as
identified in the aforesaid amended Joint Powers Agreement for provision of refuse,
recycling and green waste service; and
2. The County delegates its authority to CCCSWA to implement the SRREs and
HHWEs of the County through the CCCSWA franchising authority for the specified
unincorporated areas identified in the amended Joint Powers Agreement for these
additional delegations;
3. Said delegation of authority from the County to CCCSWA, as set forth in (1)
and (2) above is for the eight (8) year term of the proposed franchise agreements and is
subject to the limitation that any franchise agreements entered into by CCCSWA shall
be in a form substantially similar to the franchise agreements dated August 3 , 19 95
referenced hereinabove, and further conditioned upon appropriate amendments to the
Joint Powers Agreement being enacted by CCCSWA prior to execution of the franchise
agreements; and
4. Said delegation is further conditioned upon Contra Costa County reserving
the right to withdraw at any time, for any reason, the delegations of authority. However,
in doing so, agrees to administer the franchise agreement as negotiated for the term of
the contract.
5. This resolution shall take effect August 8 , 1995
RESOLUTION NO. 951 6 3 8
2
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PASSED AND ADOPTED on August 8 , 1995 , 1995, by the Board of
Supervisors by the following vote:
AYES: Supervisors Rogers , Smith, DeSaulnier, Torlakson and Bishop
NOES: None
ABSENT: None
ABSTAIN: None
I hereby certify that this is a true and
correct copy of an action taken and
entered on the minutes of the Board of
Supervisors on the date shown.
ATTESTED: August 8 , 1996
PHIL BATCHELOR, Clerk of the
Board of Supervisors and
County Administrator
By:
D puty
RESOLUTION NO. 95/ 6 3 8
3
DRAFT - Jady 24, 1995
FIRST AMENDED
JOINT EXERCISE QF POWERS AGREEMENT
CENTRAL CONTRA COSTA SOLID WASTE AUTHORITY
ARTICLE 1: PURPOSE
A. Purpose of Agreement: It is the purpose of this Agreement to establish, pursuant to the
Joint Exercise of Powers Act, a public entity separate from each of the agencies. This
public entity is to be known as the Central Contra Costa Solid Waste Authority,
hereinafter referred to as the "Authority".
B. Purpose of Authority_: The purpose of the Authority shall be to exercise certain powers
set forth below, in a manner which will (1) assure the citizens of the Member Agencies
that certain solid waste transfer station(s), regional resource recovery facility(ies),
recycling facility(ies), household hazardous waste facility(ies), and/or landfill(s) and
related programs will be operated in the most cost effective manner possible consistent
with the proper concern for the environment; and (2) allow for the public ownership
and/or management of said facilities; and (3) allow for certain or all of the Member
Agencies to participate in individual or joint efforts concerning issuing Requests for
Proposals and entering into contracts for franchising of solid waste collection, handling
and disposal, including green waste and recyclables; and (4) allow for such other joint
efforts concerning the handling and disposal of the solid waste stream as may be
beneficial to constituents of the Member Agencies.
C. Members of Authority: This Agreement was entered into as of September 11, 1990 by
and between the cities of Walnut Creek and San Ramon and the Central Contra Costa
Sanitary District (hereinafter "Initial Members"), as individual public entities which
mutually promise and agree as hereinafter set forth. Membership in the Authority is
open to any public entity that is authorized to franchise the collection or handling of
solid waste in Central Contra Costa County and does so franchise or delegate the
authority to franchise to the Authority. Membership in the Authority is granted upon
a two-thirds (2/3) vote of all members of the Authority Board, as then constituted,
approving the application for membership, and upon compliance with the terms and
conditions of membership set forth by the Board and/or in force at that time.
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For purposes of this Agreement "solid waste handling" or "handling" shall be as defined
pursuant to California Public Resources Code Section 40195, and is to include collection,
recycling, transportation, storage, transfer, or processing of solid wastes.
D. jurisdictional Boundaries of Authority• The jurisdictional boundaries of the Authority
shall include the jurisdictional boundaries of the Authority's respective Member Agencies
as set forth in, and as limited by,�the Service Area Map for the Authority, attached
hereto as Exhibit 1.
E. Avvortionment of Expenses: It is the intention of the Authority to collect revenues to
cover the costs of Authority operations. To the extent that the Authority regulates the
operation of transfer facilities, reclamation facilities, recycling facilities, household
hazardous waste facilities, landfill facilities and/or other facilities, the Authority may
recover a portion or all its costs of operation through facility fees and through such other
fees as the Authority may lawfully impose. The Authority may, in addition or
alternatively, recover its costs of operation through administration of franchise
agreements granted by the Authority, including franchise fees and through the collection
of other fees as may be provided for in the various franchise agreements. Such
Authority costs of operation may, in addition, be recovered through franchise fees or
other fees lawfully imposed by or on behalf of the Authority through its Member
Agencies with regard to the Authority's solid waste management activities.
To the extent that operating expenses exceed revenues during any period, including the
initial start-up period of the Authority, the Member Agencies shall be responsible for
providing the requisite funds to the Authority to ensure that such expenses are met in the
proportion that the total tonnage of solid waste collected within the jurisdiction of each
agency bears to the total tonnage of solid waste collected within the jurisdiction of all
members of the Authority. Solid waste collected from areas of a.Member Agency
located outside of the jurisdictional boundaries of the Authority are not included in these
calculations. Each Member Agency's contribution to such expenses is dependent upon
such Member Agency's governing body's yearly approval of such contribution, provided,
however, that if such Member Agency's governing body does not approve such
contribution, such Member Agency may be expelled.
It is the intent of this Agreement that monies and Membership Fees advanced to the
Authority by individual Member Agencies to cover Authority costs of operation,
including costs of establishing the Authority, are to be reimbursed to said Member
Agencies. Such reimbursement of funds shall be collected through the fee structures set
forth above. Such reimbursement shall be authorized to the extent that it does not impair
necessary working capital or the ability of the Authority to repay any bond or other debt
obligations.
Notwithstanding the above provisions, where two or more Member Agencies have dual
or overlapping authority to franchise solid waste handling within any portion of the
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Authority's jurisdictional boundaries, the total solid waste collected within said dual or
duplicative jurisdictional boundaries shall only be-counted toward or included within the
total tonnage of the Member Agency actually delegating to the Authority the authority
to franchise solid waste handling for the area or areas involved.
ARTICLE 2: POWERS OF THE AUTHORITY
A. General Powers: 1. The Authority shall have all powers common to its Member
Agencies, and such general powers shall further include, but not necessarily be limited
to the following:
a) To advise the Member Agencies on issues related to solid waste handling and
disposal;
b) To advocate the interests of the Member Agencies related to solid waste
management issues with local, state and federal officials;
c) To plan for transfer station(s), resource recovery facility(ies), recycling
facility(ies), household hazardous waste facility(ies), landfill(s), and other solid
waste facility(ies) and programs, and/or any related closure and post-closure
thereof;
d) To develop transfer station(s), resource recovery facility(ies), recycling
facility(ies), household hazardous waste facility(ies), landfill(s), any other solid
waste facility(ies) and program(s) and/or any related closure and post-closure
thereof;
e) To acquire and/or operate and/or contract for the operation of transfer station(s),
resource recovery facility(ies), recycling facility(ies), household hazardous waste
facility(ies), landfill(s) and other solid- waste facility(ies) program(s) and/or any -
related closure and post-closure thereof;
f) To regulate rates of transfer station(s), resource recovery facility(ies), recycling
facility(ies), household hazardous waste facility(ies) and landfill(s);
g) To issue Requests for Proposals and enter into agreements to franchise for the
handling and/or disposal of solid waste, green waste, and recyclables;
h) To provide any or all of the solid waste handling and/or disposal services, green
waste and recycling services as set forth herein to other public agencies not
members of the Authority, including issuing Requests for Proposals and entering
into agreements with and on behalf of these other public agencies concerning, but
not limited to, the administration and/or regulation of rates, rate setting,
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franchising and provision of any other solid waste services deemed reasonable or
necessary by the Authority Board;
i) To advise on matters of solid waste handling and disposal rates and charges;
j) To advise public entities as to market conditions affecting the marketability of
recyclable commodities;
k) To market and sell recyclable commodities; and
1) To conduct joint studies and/or institute joint programs as may be required by law
or are appropriate regarding solid waste handling and disposal including, but not
limited to, such efforts as may be required regarding reduction of the waste
stream disposed at landfills.
2. Notwithstanding the provisions of this Agreement, each
Member Agency retains its own existing authority to franchise solid waste handling and disposal
services and landfills within its own jurisdictional boundaries. Any Member Agency may elect
to delegate to the Authority such rights with respect to solid waste handling and disposal and
upon such terms and conditions as the Authority may agree. Nothing in this Agreement is
intended to or does provide authority for the Authority to regulate the Acme Landfill, Keller
Canyon Landfill, or any transfer station located at the Acme Landfill, or any of their respective
operations.
3. The Authority's exercise of the above general powers shall
only affect those portions of the Member Agencies lying within the jurisdictional boundaries of
the Authority as set forth in the Map, Exhibit 1 hereto. This provision is not intended to limit
the scope of Article 2(A)(1)(h).
B. Syecific Powers: In carrying out its general powers, the Authority is hereby
authorized to perform all acts necessary or proper for the exercise of said powers which
may include, but are not limited to, the following:
1. To make and enter into contracts and to issue Requests for Proposals;
2. To apply for and accept grants, advances and contributions;
3. To employ or contract for the services of agents, employees, consultants and such
other persons or entities as it deems necessary;
.4. To conduct studies;
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5. To review the Contra Costa Integrated Waste Management Plan and other such
public planning documents as may be developed, and recommend revisions or
amendments thereto;
6. To acquire, construct, manage, maintain, operate and control any buildings,
works or improvements;
7. To acquire, hold or dispose of property;
8. To acquire by condemnation proceedings such real and/or personal property
and/or rights of way as in the judgment of the Authority are necessary or proper
to the exercise of its powers;
9. To incur debts, liabilities or obligations subject to limitations herein set forth;
10. To levy and collect fees and charges to the extent permitted by law;
11. To assess and collect, subject to Article 5, Section A and Article 1, Section E,
of both Initial Members and future agency members, fees for membership in the
Authority, so as to provide moneys for the financing of its activities, operations,
and expansion which are not adequately funded by the revenues collected for
services provided by the Authority;
12. To issue bonds, subject to the provisions andlimitations of the laws of the State
of California; and
13. To adopt annually, by April 1 of each fiscal year, a budget setting forth all
administrative, operational and capital expenses for the Authority, together with
the apportionment of such expenses by levy against each Member Agency to the
extent necessary, subject to Article 1, Section E.
ARTICLE 3: ORGANIZATION OF AUTHORITY
A. Board of Directors: The Authority shall be governed by a Board of Directors,
hereinafter "Board", which shall exercise all powers on behalf of the Authority. The
Board shall have the authority to carry out all duties and functions within the power of
the Joint Exercise of Powers Agreement.
The Board shall be composed of two (2) representatives from each Authority agency,
who shall be elected members of such agency's governing body. Each member
representative shall have the right to vote on each issue pending before the Board. The
term of Board membership is unlimited except as a Member Agency may provide for its
own representatives; however, as to such member representatives, such term shall
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automatically expire when the representative is no longer an elected officer of the agency
that he or she represents on the Board.
B. Duties of the Board of Directors: The Board shall perform all acts necessary or proper
to carry out the purposes of this Agreement and to execute the General and Specific
Powers of the Authority, which acts include but are not limited to the following:
a) Conduct Board meetings pursuant to a schedule adopted by the Board;
b) Consider, modify and approve the annual work program and budget;
C) Levy, fix, set and/or impose fees, assessments and charges to the extent permitted
by law and by this Agreement;
d) Authorize, review and accept reports and studies;
e) Review, recommend, approve and/or regulate rates for services provided by the
Authority or over which the Authority has regulatory power through contract or
otherwise;
f) Recommend action to Member Agencies and other public bodies on:
i) The Contra Costa County Integrated Waste Management plan and any
other such public planning documents as may be developed and revisions
or amendments thereof; and
ii) The planning, financing, development and operation of Authority
activities;
g) Accept agencies as subsequent parties to the Agreement and members of the
Authority, and their representatives as Board members;
h) Authorize the hiring and/or engagement of Authority staff;
i) The Board may, from time to time, declare one of the Member Agencies as the
lead agency for specific purposes as may be set forth by the Board or for the
general purpose of staffing the Authority and carrying out the Authority's
functions. At the time said Member Agency is appointed as a lead agency, the
Board shall determine whether the member is to bear the costs of such lead
agency activity or be reimbursed therefor. The Authority, in any event, shall
reimburse agency members for personnel costs associated with the staffing of the
Authority with Member Agency personnel;
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j) Establish committees to carry out Authority purposes, and appoint committee
members from the Authority Board, the legislative bodies or administration of
Member Agencies, Authority staff, and/or staff of the Member Agencies. The
Authority shall reimburse agency members for personnel costs associated with the
staffing of committees with Member Agency personnel;
k) Establish policies governing the compensation of staff employed by the Authority,
which policies are subject to approval of the governing bodies of the agency
members by a two-thirds (2/3) vote thereof;
1) Delegate duties to Authority or Board staff and/or members, appointed
committees and committee members, the City Councils and/or staff, or the
Sanitary District Board and/or staff or the County Board of Supervisors and/or
staff.
C. Voting Requirements: All actions of the Board may be undertaken by a majority vote
of the Board members present, provided a quorum exists, except for such Board actions
requiring a two-thirds (2/3) vote as may otherwise be set forth herein. Each Board
member shall have one vote.
D. Board of Directors Members: Upon execution of this Agreement, the governing body
of each agency shall, by resolution, appoint two (2) member/representatives to serve as
members of the Board in conformity with the requirements of Article 3, Section A.
E. Subsequent Authority Members: Any agency which has the authority to franchise solid
waste collection in Central Contra Costa County, and franchises the same or delegates
such authority to franchise to the Authority (including cities incorporated and districts
formed after the effective date of this Agreement, and including the County), may
become members of the Authority. Its representatives may become voting members of
the Board by: (1) presenting an adopted resolution to the Board which includes a request
to become a member of the Authority, (2) receiving a two-thirds (2/3) vote of all
members of the Board to accept the new member, and (3) by payment of any charges
and execution of all documents as may be required by the Board. Such charges may
include such items as compensation to the existing Authority members for previously
expended costs in furtherance of Authority purposes, including staffing expenses, capital
expenses, financing expenses, and assessments for losses in prior Authority operations.
These examples are purely illustrative, however, and are not intended to limit the power
of the Authority or the Board to fix whatever buy-in, capitalization or other equalization
charges deemed necessary or -proper. Payment of such charges may be made in any
manner deemed necessary or proper by the Board, including, but not limited to cash
payment, a differential rate structure at Authority facilities, future capital contributions,
surcharges or by other plan which might include appropriate security.
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F. Board Officers: The Board. shall by a majority vote elect from its members a
Chairperson and a Vice Chairperson. The Chairperson and Vice Chairperson shall have
one-year terms and may be re-elected so as to serve a maximum of two (2) consecutive
one-year terms, unless the Board unanimously approves additional consecutive term(s)
as to a particular Chairperson or Vice Chairperson. The Chairperson shall preside over
all meetings according to the Rules of Procedure adopted by the Board. The Board
Chairperson shall represent the Authority and execute any contracts and other documents
when required by the Rules of Procedure.
G. Board Rules: The Board is empowered to establish its own Rules of Procedure to the
extent those rules are not inconsistent with the laws of the State of California governing
the operations of this Authority.
H. Meetings of the Board:
a) Regular Meetings: The Board shall hold scheduled public meetings at a location
selected by the Board.
b) Special Meetings: Special meetings of the Board may be called in accordance
with the provisions of Section 54956 of the California Government Code.
c) Notice of Meetings: All meetings of the Board shall be held subject to the
current provisions of the Ralph M. Brown Act, being Sections 54950 et sea. of
the California Government Code, and other applicable laws of the State of
California requiring public meetings.
d) Minutes: The Board Chairperson shall cause minutes of all meetings to be kept
and shall, as soon as possible after such meeting, cause a copy of the minutes to
be forwarded to each member of the Board.
I. Staffing: Each of the Member Agencies shall use its best efforts to provide staff to the
Authority as may be necessary initially for the Authority to execute its powers and duties
and as may be required by the Board thereafter. Staff may be drawn from Member
Agencies or agency staff. Additionally, the Authority may contract with or employ
entities and/or individuals not associated with Member Agency staff, as permitted by
Article 2, Section B(3).
J. Officers: The Board has the power to appoint as staff to the Board the following
officers:
a) Executive Director: There may be an Executive Director appointed who will
serve as the chief administrative officer of the Authority. He or she shall be
responsible to the Board for the management and administration of all Authority
affairs pursuant to the Board's direction.
8 F:\DMS\TCS.DIR\0115230.05
Until such time as the Board may determine to appoint an Executive Director who
is not a staff member of a Member Agency, and for such other times as there is
no Executive Director serving, the Board may appoint an interim Executive
Director, who shall have such powers and duties as are set forth in this section.
An interim Executive Director shall be the chief administrative officer of one of
the Member Agencies, or such other agency staff member as the Board deems
appropriate.
b) Treasurer and Controller: There shall be a Treasurer and Controller to be the
custodian of all Authority funds, to pay demands and to make or contract for an
annual audit. Such Treasurer shall be the Treasurer of one of the Member
Agencies, the County Treasurer, a Certified Public Accountant or one of the
Authority's officers or employees as set forth in California Government Code
§§6505.5 and 6505.6.
C) Secretary: There shall be a Secretary appointed by the Executive Director who
shall be responsible for the noticing of meetings and recording of minutes of
meetings as required by the Brown Act and the Rules of Procedure, in addition
to such other duties as the Executive Director may assign.
K. Funds. Expenditures and Audits:
Each and every expenditure of moneys shall be authorized or approved by the Board or
by a person designated by the Board to authorize expenditures. The Treasurer shall draw
warrants to pay demands so authorized for payment by the Board.
Before the Authority may expend any moneys or incur any financial obligation, it shall
adopt a budget showing proposed expenditures for the Fiscal Year and the proposed
means of financing such expenditures. The budget shall be for the ensuing Fiscal Year,
beginning on July 1 of each calendar year and ending on June 30 of the following
calendar year.
The Board shall periodically cause an audit to be performed with regard to the financial
operations of the Authority.
ARTICLE 4: TERMS OF AGREEMENT
A. Effective Date: This Agreement shall become effective on the date of its execution by
_F all the agencies identified as Initial Members in Article 1, Section C.
B. Amendments: This Agreement may be amended by a two-thirds (2/3) vote of all
members of the Board. Any such amendment shall be effective upon the date of such
action.
9 F:\DMS\TCS.DIR\0115230.05
C. Undertaking of Specific Projects: Although it is the intent of this Agreement, and
therefore the purpose of the Authority, to cooperate jointly amongst the Member
Agencies so as to provide the most efficient operation of solid waste facilities and most
efficient means of handling and/or disposal of solid waste, green waste and recyclables
on a regional basis, nothing contained in this Agreement is intended to prevent the
Authority from undertaking projects and agreements to provide services pursuant to
separate contacts between the Authority and individual Member Agencies and non-
member public agencies, which projects and agreements are not intended to benefit all
of the Member Agencies. The Authority shall hold title to each project and to the rights
and benefits of each agreement in trust for the use of the members who participate. The
members who participate in a project or agreement shall indemnify and hold harmless
the members who do not participate from liability of any kind resulting from, or in any
way related to, the financing, construction, acquisition, operation or maintenance of such
project, or resulting from or arising out of performance of such agreement.
The Authority shall have the power to proceed with the final acquisition and construction
of a project which is not joined in by all Authority members, only when a separate
project contract has been entered into which provides arrangements for obtaining funds
sufficient to pay for all costs of such project.
D. Withdrawal:
a) Any Member Agency, upon written notice given by January 1 of any year to the
Chairperson of the Board of Directors, and to all other Member Agencies, may
withdraw from the Authority effective no earlier than July 1 of that year;
provided, however, that the withdrawal of such Member Agency shall not
terminate such Member Agency's responsibility under any obligation of such
Member Agency or the Authority or any action taken in connection therewith,
and further provided that the withdrawing agency may pay to the Authority on the
effective date of withdrawal, all money owing to the Authority, and as to those
capital expenditures that the withdrawing agency has agreed to participate in by
contract or otherwise, its share of such capital expenditures. Such financial
obligations of such withdrawing agency may be assumed by another entity upon
a two-thirds (2/3) vote of the Board, absent the participation of the representative
of the withdrawing agency.
b) Notwithstanding subsection (a) above, a member shall not be permitted to
withdraw from the Authority-unless the Board determines by majority vote,
absent the participation of the representatives of the withdrawing agency, that as
of the effective date of withdrawal the Authority will have a waste stream
sufficient to meet all Authority operating expenses and obligations outstanding as
of the effective date of withdrawal, whether capital, operational, maintenance-
related or otherwise, and to ensure that all Authority operations will not be
i0 F:\DHS\TCS.DIR\0115230.05
adversely affected to a material extent by the withdrawal of the withdrawing
member.
C) Notwithstanding subsections 1 and 2, above, any Member Agencies, regardless
of whether it withdraws from Authority membership, may at any time, for any
reason, upon thirty (30) days prior written notice to the chairperson of the Board
of Directors, terminate the delegation of authority from said Member Agency
granting the Authority the right to franchise on behalf of said Member Agency.
As of the effective date of termination of said delegation of franchise authority,
said Member Agency shall no longer be a party subject to any franchise
agreement entered into on its behalf by the Authority. Said Member Agency
agrees, however, to accept an assignment of all rights and obligations under each
said franchise agreement entered into on its behalf by the Authority with respect
to those portions of the service area of each franchise agreement located within
the jurisdictional boundaries of said Member Agency. Said Member Agency
further agrees to administer such partially assigned franchise agreements in good
faith, pursuant to the terms of each said franchise agreement, for the balance of
their respective terms. Nothing contained herein limits the right of said Member
Agency and any of said franchisees from subsequently agreeing to amend said
partially assigned franchise agreements.
d) The withdrawing agency shall also continue to be liable for its share of Authority
obligations, including, but not limited to, operations costs and the General
Budget, until the effective date of its withdrawal.
E. Expulsion of Member: The Board may, by a two-thirds (2/3) vote of the Board
members, terminate a Member Agency's membership in the Authority for a material
breach of this Agreement after six (6) months' notice to such Member Agency. A
Member Agency so expelled shall be responsible for capital expenditures and non-capital
obligations of the Authority as set forth in Article 4, Section D above. Further, a
Member Agency so expelled shall have the rights as set forth in Article 4 D(3) with
respect to termination of its delegation of franchising authority and partial assignment of
the franchise agreements.
F. Reinstatement: An agency, subsequent to its withdrawal, or subsequent to expulsion,
may seek reinstatement as a Member of the Authority. Application for reinstatement
shall be made in writing to the Board. An agency shall be reinstated upon a two-thirds
(2/3) vote of all members of the Board as then constituted. The Board may require an
agency seeldng reinstatement to meet any terms and conditions which the Board deems
appropriate.
G. Division of ProI&M and Obligations on Dissolution: Upon dissolution of the Authority
as a legal entity, all debts and obligations of the Authority, including all bonded
indebtedness, shall be paid, and the remaining property of the Authority shall be divided
11
F:\DKS\TCS.DIR\0115230.05
in proportion to the contributions made among all of the agencies who are parties to this
Agreement at the time of its dissolution.
H. Flow Control: With regard to any flow control rights that Member Agencies may have
with respect to any solid waste, Member Agencies shall not exercise such flow control
rights for solid waste collected within the Authority's jurisdictional boundaries in any
manner inconsistent with the terms of any Authority franchise or other contractual
agreements.
To the extent that Member Agencies may now, or in the future, have the authority to
exercise flow control for the said waste stream collected within their jurisdictional
boundaries, the Authority shall, on entering into a contract or franchise concerning
collection, transfer and disposal of solid waste, be deemed to have the authority to
exercise such flow control rights for the solid waste within the jurisdictional boundaries
of the Authority under the terms of this Agreement.
.Nothing herein is intended in any manner to constitute an exercise of flow control by the
Authority or its Member Agencies. The intent of this Agreement is to provide
recognition of the respective roles of the Authority and its Member Agencies with respect
to solid waste flow control issues. Moreover, this Agreement shall be interpreted to be
limited by existing and developing law on issues of flow control and interstate commerce.
I. AApcWtance of Waste Stream: The Authority shall accept the waste stream of any
Member Agency, whether delivered for solid waste handling by the Member Agency or
by a franchisee of the Authority or Member Agency, to the extent the Authority owns
or operates solid waste handling facilities designed and constructed to accommodate the
waste stream from the affected Member Agency and the facility or facilities have
adequate capacity to serve the Member Agency's entire need. The Authority shall
attempt to acquire, construct and/or operate Authority facilities in such a manner as to
best accommodate the solid waste handling needs of all Member Agencies.
J. Funding From Member Agencies: Subject to Article 1, Section E, each Member Agency
shall provide its share of the Authority's general budgetary obligation. Each initial
member's share is set forth in Exhibit A attached hereto and incorporated herein by
reference and made a part hereof as if fully set forth herein.
K. Liability: The turt liability of the Authority, all members of the Board, and all officers
and employees of said Authority shall be controlled by the provisions of Division 3.6 of
Title I of the Government Code of the State of California. Any tort and contractual
liability incurred by or imposed upon the "Authority" shall remain the sole liability of
the Authority rather than the liability of the Member Agencies, to the full extent such
allocation of liability is permitted by law. The provisions of said Division relating to the
indemnification of public employees and the defense of actions against them arising out
12 F:\DMS\TCS.DIR\0115230.05
of any act or omission occurring within the scope of their employment shall apply to all
Authority directors, officers and employees. Notwithstanding the specific terms of this
section, the Authority and the Member Agencies shall retain the power to allocate
liability between the Authority and the Member Agencies, or among the Member
Agencies, in a manner other than as set forth above pursuant to written agreement or to
do the same for specific projects or undertakings of the Authority.
To the extent that any liability of the Authority, whether based on contract, tort or
otherwise, passes through to a Member Agency, or Member Agencies, said liability shall
be apportioned based upon principals of fault. If, for any reason, apportionment between
Member Agencies cannot be based upon fault under the circumstances involved, then
apportionment shall be based upon that proportion that the total tonnage of solid waste
collected within the jurisdiction of each Member Agency bears to the total tonnage of
solid waste collected within the jurisdiction of all members of the Authority as more fully
described in Article 1(E).
L.
Indemnity: The Authority shall indemnify, defend (at the Authority's sole expense),
and hold harmless the Member Agencies, their respective officers, directors, employees,
and agents from and against any and all loss, liability, penalty, forfeiture, claim,
demand, action, proceeding, or suit of any and every kind and description (including, but
not limited to, injury to and death of any person and damage to property, or for
contribution or indemnity claimed by third parties) arising as the sole result of the
Member Agency or Agencies' status as members of the Joint Powers Authority, i.e.
liability of the Member Agency is derivative only. The Authority's duty to indemnify,
hold harmless and defend shall survive the expiration or earlier termination of this-
Agreement.
M. Insurance: Each Member Agency and its respective officers, directors and employees
shall be named as additional insured to the same extent and degree that the Authority and
its officers, directors and employees are named as additional insureds with respect to any
insurance as required by the Authority pursuant to the terms of any contract or franchise
agreement entered into by any other party with the Authority.
N. Term and Termination: This Agreement shall continue in force until terminated as
specified by this section. This Agreement may be terminated at the end of any Fiscal
Year by consent of all Member Agencies; however, this Agreement and the Authority
shall continue to exist for the purpose of disposing of all claims, the distribution of
assets, and any other functions necessary to conclude the affairs of the Authority. Upon
termination, payment of the obligations and division of the property of the Authority_ shall
be conducted pursuant to Section G of this Article.
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ARTICLE 5: PROJECT FINANCING
A. Separate Contracts: Financing of specific capital projects, such as the acquisition or
construction of solid waste facilities by the Authority, shall be subject to separate
contracts between the Authority and Member Agencies which intend to participate in the
specific facility. The contracts shall set forth each agency's responsibility for capital
expenditures and operating expenses, as well as such other terms as may be appropriate.
B. Debt: The Authority may issue or cause to be issued bond and other indebtedness, and
pledge any property and/or revenues as security to the extent permitted by law. Any and
all debts, liabilities, and obligations incurred by or imposed upon the Authority shall be
the debts, liabilities, and obligations solely of the Authority, rather than the debts,
liabilities, and obligations of the individual Member Agencies.
C. Financial Contribution: For agencies joining the Authority after the effective date of this
Agreement, the Board shall determine such agencies' proportionate financial contribution,
which is due upon joining the Authority.
D. Funding: It is intended that the liabilities of the Authority, to the fullest extent possible,
are funded by revenues generated by facility operations or through solid waste fees and
franchise fees based on services provided by Authority or pursuant to Authority direction
or regulation.
ARTICLE 6: EXERCISE OF AUTHORITY'S POWERS
This Agreement is entered into under the provisions of Article 1 of Chapter 5, Division 7, Title
One of the Government Code concerning Joint Powers Agreements. As to those powers vested
in the Authority pursuant to Section 6508 of the Government Code, they shall be exercised in
the same manner and subject to the same restrictions as those applicable to a sanitary district
pursuant to statutes and laws of the State of California.
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ARTICLE 7: OBLIGATIONS OF AUTHORITY
Any and all debts, liabilities, and obligations incurred by or imposed upon the Authority shall
be the debts, liabilities, and obligations solely of the Authority and no capital or administration
debt, liability, or obligation shall thereby be imposed upon any party to this Agreement or the
collective parties hereto.
PASSED AND ADOPTED this day of , 19, by the following
vote:
AYES: Members:
NOES: Members:
ABSENT: Members:
President of the Board of Directors
Central Contra Costa Solid Waste
Authority
COUNTERSIGNED:
Secretary
Central Contra Costa Solid Waste
Authority
APPROVED AS TO FORM:
Kenton L. Alm
District Counsel
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A
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
TO BE WITHIN THE JURISDICTION OF CCCSWA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer.of the authority to manage collection of garbage, and franchising thereof. The terms
and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection,transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512, and as otherwise provided for in
Public Resources Code §40000, et seq; and
B. WHEREAS, CCCSD entered into a Franchise Agreement with Valley Disposal
Service, Inc. granting Valley Disposal Service, Inc. the exclusive franchise to collect garbage
within, a portion of CCCSD's jurisdictional boundaries, including both incorporated and
unincorporated areas, for a term of ten years expiring February 29, 1996; and
F:\DMS\TCS.DIR\0118669.08
C. WHEREAS, Waste Management Collection and Recycling, Inc., through its
Division, Valley Waste Management (hereinafter "VWM"), is the current franchisee under the
Valley Disposal Service, Inc. Franchise Agreement (hereinafter "VWM Franchise"); and
D. WHEREAS, the County, pursuant to California Government Code §25827, the
California Constitution and Public Resources Code §§40,000 et sea. has the authority to collect
or contract for the collection, or both, of solid waste within the unincorporated areas of the
County; and
E. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
F. WHEREAS Central Contra Costa Solid Waste Authority(hereinafter"CCCSWA")
is a joint powers authority and is formed pursuant to Government Code §§6500, et seq.
(currently comprised of member agencies of CCCSD and the City of Walnut Creek); and
G. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the First Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
H. WHEREAS, the County desires to have clear exclusive authority to franchise or
contract for the collection of solid waste within the unincorporated sections of the current
CCCSD-VWM franchise area; and
2 F:\DMS\TCS.DIR\0118669.08
1. WHEREAS, the County has requested by action of the Board of Supervisors on
January 24, 1995 and thereafter to become a member of CCCSWA; and
J. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
K. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of other members
of CCCSWA concerning collection, transfer and disposal of solid waste and certain other AB
939 obligations; and
L. WHEREAS, CCCSD .is willing to cede its solid waste collection franchise
authority for the unincorporated areas to the County, provided that the County becomes a full
and equal member of CCCSWA, and provided further that the County delegates (in the same
manner as the City of Walnut Creek for its City area) to CCCSWA its authority to franchise
solid waste collection, transport and disposal within the unincorporated areas within the
jurisdictional boundaries of CCCSWA as set forth in the CCCSWA November 1994 Franchising
RFP; and
M. WHEREAS, County previously indicated its intent to directly assume franchise
administration in unincorporated areas within CCCSD on and after the expiration of the
Franchise Agreement (CCCSD-VWM Franchise) on February 29, 1996; and
N. WHEREAS, CCCSD disputes the County authority to assume franchise
administration in,the unincorporated areas within CCCSD.
3 F:\DMS\TCS.DIR\0118669.08
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-VWM'Unincorporated Franchise Area
"CCCSD-VWM Unincorporated Franchise Area" means and includes only the
unincorporated areas of the County which are currently in the jurisdictional boundaries
of CCCSD and which are subject to the VWM Franchise. The franchise area is further
described by the 600 scale maps as referenced in the Franchise Agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is,the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
Agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
4 F:\DMS\TCS.DIR\0178669.08
1.5 Franchise Agreement
"Franchise Agreement" or "VWM Franchise," for purposes herein, means the
"Agreement for Collection, Removal, and Disposal of Garbage, Zone 2," between Valley
Disposal Services; Inc. and CCCSD dated March 1, 1986.
1.6 RFP, RFP Process
"RFP" and "RFP Process" means the process by which CCCSWA solicited proposals for
solid waste'-handling and related AB 939 activities pursuant to a document dated
November, 1994, entitled Central Contra Costa Solid Waste Authority Request for
Proposals for Integrated Solid Waste Management Services and the receipt and evaluation
process by CCCSWA of responses to the request for proposals.
1.7 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time, including
green waste and recyclables. (The term "garbage" is the defined term used within the
Franchise Agreement, which term is defined therein at section 1(e) and is synonymous
with the term "solid waste" within this agreement).
ARTICLE 2
Obligations of Countv
2.1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
5 F:\DMS\TCS.DIR\0178669.08
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this agreement.
2.2
Concurrent with the execution of this agreement, the County shall file a resolution with
respect to the CCCSD-VWM Unincorporated Franchise Area delegating its franchising
authority as of March 1, 1996 to the CCCSWA at least in the same manner as the City
of Walnut Creek as of the:date this agreement is approved by the Board of Supervisors.
The County shall further execute any other reasonably necessary documents for the
purpose of enabling the CCCSWA to undertake its role as the regional franchising
authority as specified in the above noted Walnut Creek delegation. If the current
CCCSD Franchise Agreement with VWM (Franchise Agreement) is extended for a
period of time not to exceed one year, the effective date for the delegation of the
franchise authority to CCCSWA by the County shall be extended by a like period of
time; hereinafter, said term of the franchise and any extension not to exceed one year
shall be collectively referred to as the "franchise term" or "term of the franchise."
2.3
As between the County and CCCSD, the County shall be responsible, to the extent
allowed by law, and except as delegated to CCCSWA, for all solid waste management
of the unincorporated areas of the CCCSD-VWM Unincorporated Franchise Area set
forth in this agreement beginning at the end of the VWM franchise term.
6 F:\DMS\TCS.DIR\0118669.08
ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall delegate to the County and thereafter refrain from exercising its franchising
authority in the CCCSD-VWM Unincorporated Franchise Area so long as the County
exercises its franchising or equivalent authority (such as County's delegation to
CCCSWA) within that area. :This delegation and/or agreement to refrain from further
exercise of authority to franchise shall be effective on the date of termination of the
current franchise agreement with VWM, provided that the conditions precedent in Article
8, section 8.1 have been satisfied. If said conditions precedent have not been so
satisfied, this agreement and the delegation and/or agreement to refrain from further
exercise of authority to franchise shall not be effective until said conditions precedent
have been met. The District agrees that once the County joins the CCCSWA and the
new franchise agreements with Browning Ferris Industries and Waste Management begin,
the District will not challenge the County's right to franchise solid waste in
unincorporated areas.
3.2
CCCSD shall be responsible for administration of the current Franchise Agreement for
the remaining term of said agreement. In addition, CCCSD shall continue to administer
all AB 939 diversion and recycling activities currently being undertaken pursuant to the
Franchise Agreement and otherwise currently being undertaken by CCCSD, or on its
7 F:\DMS\TCS.DIR\0118669.08
behalf within the CCCSD-VWM Unincorporated Franchise Area for the remaining term
of said Franchise Agreement.
3.3
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
Franchise Agreement, as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-VWM Unincorporated Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-VWM Unincorporated Franchise Area shall be subject to the jurisdiction
of the CCCSWA in accordance with the County's aforenoted delegation.
4.2
County shall, in good faith, participate as a member of CCCSWA in the RFP process,
including the execution (along with the City of Walnut Creek) of the franchise
agreements providing for solid waste services within the CCCSWA jurisdictions
contemplated by the RFP; provided that CCCSWA Board of Directors determines that
such solid waste franchise agreements are acceptable and the CCCSWA Board takes the
actions appropriate for entering into such agreements.
8 F:\DMS\TCS.DIR\0118669.08
4.3
During the period between the effective date of this agreement and the effective date of
a new franchise agreement covering the CCCSD-VWM Unincorporated Franchise Area
entered into pursuant to the ongoing CCCSWA RFP Process, County shall be allowed
full opportunity to participate on staff and Board level, on all decisions with regard to
processing the RFP proposals and with regard to entering into appropriate franchise and
disposal agreements.
4.4
CCCSD and County agree that except for the authority delegated herein to CCCSWA
with respect to the provision of solid waste services, upon the termination of.the
Franchise Agreement, County shall (as and to the extent provided and allowed by law)
be responsible for administration of all AB 939 activities including diversion and
recycling within the CCCSD-VWM Unincorporated Franchise Area.
ARTICLE 5
Franchise Fees
5.1
CCCSD has received all franchise fee payments pursuant to the Franchise Agreement and
shall receive any additional payments during the term of said franchise. County shall
receive no portion of said franchise fees; however, County shall not be required to pay
any membership fee for joining CCCSWA. The CCCSWA expenses are prorated to
Member Agencies annually on a tonnage basis. The CCCSWA fees with respect to the
CCCSD-VWM Unincorporated Franchise Area have been paid to date, and will be paid
9 F:\DMS\TCS.DIR\0118669.08
by, or on behalf of, CCCSD during the remaining term of the Franchise Agreement and
any extension thereof not to exceed one year. Thereafter, CCCSD will have no
responsibility for County's share of membership fees or costs due CCCSWA for the
unincorporated areas within the CCCSWA jurisdictional boundaries.
5.2
If the VWM franchise is extended beyond March 1, 1996, the County may impose, in
its discretion, such additional franchise fees as may be allowed by law. CCCSD agrees
to set rates to provide for such fees and direct VWM to collect such County franchise
fees during the remaining term of said Franchise Agreement.
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical, Inc., US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme.
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-VWM Unincorporated Franchise Area, the proportionate
share of any such responsibility for clean-up costs shall be the responsibility of the
constituent base in the existing CCCSD-VWM Unincorporated Franchise Area,
10 F:\DMS\TCS.DIR\0118669.08
notwithstanding the assignment/transfer of the franchise authority to the County. The
proportionate share of responsibility for the customers in the existing franchise area shall
be based on the waste derived historically from the wasteshed area. By entering into this
Agreement, the County is not assuming any responsibility or liability for the defense of
the Acme Lawsuit for this wasteshed area.
6.2
The County as the future franchising authority, either directly or through the CCCSWA,
agrees that the proportionate share of any liability or settlement costs (including a
proportionate share of net legal costs and expenses incurred after the termination of the
Franchise Agreement) shall be borne by the customer/constituent base of the CCCSD-
VWM Unincorporated Franchise Area, and amounts sufficient to pay for the net
proportionate liability, costs and expenses, if any, after deducting all insurance and
contribution proceeds allocable to this wasteshed, shall be provided and collected to the
fullest extent allowed by law as a pass-through in the collector franchise rates for the
Area, whether the liability and/or settlement costs for this wasteshed be directly imposed
on CCCSD and/or the County in the Acme Lawsuit. If deemed appropriate, the County
may (at its discretion) collect such proceeds as charges or fees imposed at any County
franchised landfill and/or transfer station facility receiving solid waste from the VWM-
CCCSD Unincorporated Franchise Area.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission.
11
F:\DMS\TCS.DIR\0118669.08
or concession concerning said litigation. The County and CCCSD each, respectively,
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current Franchise Agreement or arising from other solid
waste administration activities.within,the CCCSD-VWM Unincorporated Franchise Area
as a result of occurrences during such term, shall be the responsibility of CCCSD with
respect to occurrences prior to the effective date of termination of the VWM Franchise
Agreement. As between County and CCCSD, County shall be responsible for any
liability arising as a result of occurrences after said date of termination of the VWM
Franchise and during County franchise administration. In no event is County, by
entering into this agreement, assuming any legal liability for any period prior to the said
Franchise Agreement termination for the wasteshed area, except as specifically set forth
above.
ARTICLE 7
Indemnity
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
12 F:\DMS\TCS.DIR\0118669.08
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 arising at any time
from occurrences prior to the effective date of the termination of the current Franchise
Agreement. The liabilities, damages and expenses, as set forth herein, arising from the
Acme Lawsuit shall be excepted from this indemnity and handled as set forth in
paragraphs 6.1 through 6.3, inclusive.
7.2
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above arising from
occurrences after the effective date of the termination of the current Franchise
Agreement.
ARTICLE 8
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this agreement becoming
legally effective (in addition to the proper execution of this agreement by-both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
13 F:\DMS\TCS.DIR\0118669.08
seated as full members of the CCCSWA Board; and (2) County shall in the same manner
as the City of Walnut Creek take such legal action as may be required to delegate the
County's solid waste collection, transport and disposal franchise authority for the
unincorporated areas within the jurisdictional boundaries of the CCCSWA (as such areas
are further described in the CCCSWA 1994-1995 RFP documents and the map attached
hereto as Exhibit A) to the CCCSWA to enable the CCCSWA to enter into regional
franchises pursuant to the CCCSWA 1994-1995 RFP process.
ARTICLE 9
Miscellaneous Provisions
9.1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
9.2 Section headin&s
The article headings and section headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
9.3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
14 F:\DMS\TCS.DIR\0118669.08
9.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
9.5 Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of.this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
9.6 Attorna's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
9.7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
9.8 Future Franchising Authority
Except for the up-to-one-year extension period allowed by this agreement for CCCSD
administration of the current VWM franchise, it has been and remains the County's
position that on and after the expiration of the Franchise Agreement (February 29, 1996),
CCCSD has no franchise authority for the unincorporated areas covered by this
15 F:\DMS\TCS.DIR\0118669.08
agreement to the extent the County thereafter franchises and/or regulates (e.g., delegates,
etc.) for said areas. Nothing herein shall be construed as a waiver or modification of
past County actions or its position in this regard, except for the said up-to-one-year
extension period. It is understood and recognized that CCCSD does not agree with this
County position.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of the date last written
below.
Dated: , 1995 C
O RICT
T/
%ilnaaZ
BY:Rog , erlYanager
Dated: 1995 COUNTY OF CONTRA COST
BY:
APPROVED AS TO FORM:
Kenton L.-Arm, General Counsel
Central Contra Costa Sanitary District
ctor J. W tm n, Caunty Counsel
County of Contra Costa
16 F:\DMS\TCS.D1R\0118669.08
CENTRAL CONTRA COSTA
SOLID WASTE AUTHORITY
SERVICE AREA
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16. �► o PIf15BM g+
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MARTINEZ a CONCORD
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PLEASAN
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e
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LAFAYEi tE 4
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AL4niIC� BLACKHAWK
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- - e s
SERVICE AREA INCLUOES THE CmES OF WALNUT CRREI K,ORWDA.LAPAYEM MORAGA.
DANMUE,ALAMO.BLACKHAWK AND All OTHER CENTRAL COUNT/UNINCORPORATED -
ARFAS ELCEPT PACHECO, AND CLYDE.(NOTE.ONLY THE LARGER UNNCORPORATED MEAS
WRFRN CRIES ARE SHOWN.
DMCLAU46t:This map shows peneral od boundaries drawn according to information
provided to CCCSD prior io ihs above data.D'nsaspwtaes dnoutd be moNed with"
appropriate agency and sent to CCCSD to be included in the nsd edition aNhis map.
B
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
OF THE NORTH CONCORD/PACHECO/CLYDE
SOLID WASTE FRANCHISE AREA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
: the transfer of the authority to manage collection, transport and disposal of solid waste, and
franchising thereof within certain unincorporated areas within North Concord, Pacheco and
Clyde. The terms and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection, transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512 and as otherwise provided for in
Public Resources Code §§40000, et seq; and
F:\DMS\TCS.DIR\0118828.08
J
B. WHEREAS, CCCSD entered into a franchise agreement with Boyd Olney,Jr. dba
Pleasant Hill Bayshore Disposal, a sole proprietorship (hereinafter "PHBS")dated April 1, 1986
granting PHBS the exclusive franchise to collect garbage within the CCCSD-PHBS Franchise
Area, defined below, for a term of ten years expiring March 31, 1996 (hereinafter "PHBS
Franchise") attached hereto as Exhibit A; and
C. WHEREAS, Pleasant Hill Bayshore Disposal, Inc. (hereinafter PHBS, Inc.) a
wholly owned subsidiary of Browning-Ferris Industries of California, Inc. is now operating as
the successor in interest to PHBS; and
D. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
E. WHEREAS, Central Contra Costa Solid Waste Authority (hereinafter
"CCCSWA") is a joint powers authority and is formed pursuant to Government Code §§6500,
et seq. (currently comprised by member agencies of CCCSD and the City of Walnut Creek); and
F. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the First Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
G. WHEREAS, the County desires to have clear exclusive authority to franchise or
contract for the collection of solid waste within the CCCSD-PHBS Franchise Area; and
H. WHEREAS, the County, pursuant to California Government Code §25827, the
California Constitution and Public Resources Code §§40,000 et sea. has the authority to collect
2 f:\DMS\TCS.DIR\0118828.08
or contract for the collection, or both, of solid waste within the unincorporated areas of the
County; and
I. WHEREAS, the County has requested by actions of the Board of Supervisors on
January 24, 1995 and thereafter to become a member of CCCSWA; and
J. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
K. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of the other
members of CCCSWA concerning collection, transfer and disposal of solid waste and certain
other AB 939 obligations; and
L. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal member of
CCCSWA, and provided further that the County delegates (in the same manner as the City of
Walnut Creek for its City area) to CCCSWA its authority to franchise solid waste collection, .
transport and disposal in the unincorporated areas within the jurisdictional boundaries of
CCCSWA set forth in the CCCSWA November, 1994 Franchising RFP, exclusive of the
unincorporated areas within the CCCSD-PHBS Franchise Area; and
M. WHEREAS, County previously indicated its intent to directly assume franchise
administration in unincorporated areas within CCCSD on and after the expiration of the CCCSD-
PHBS Franchise Agreement; and
3 F:\DMS\TCS.DIR\0118828.08
N. WHEREAS,CCCSD disputes County authority to assume franchise administration
in the unincorporated areas within CCCSD.
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-PHBS Franchise Area
"CCCSD-PHBS Franchise Area" means and includes the unincorporated areas of the
County which are currently in the jurisdictional boundaries of CCCSD and which are
subject to the PHBS Franchise Agreement. .The franchise area is further described by
the 600 scale maps as referenced in the franchise agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the-agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
4 F:\DMS\TCS.DIR\0118828.08
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
1.5 PHBS Franchise Agreement
"PHBS Franchise Agreement," for purposes herein, means the "Agreement for
Collection, Removal and Disposal of Garbage, Zone 3," dated April 1, 1986, between
PHBS and CCCSD.
1.6 RFP, RFP Process
"RFP" and "RFP Process" means the process by which CCCSWA solicited proposals for
solid waste handling and related AB 939 activities pursuant to a document dated
November, 1994, entitled Central Contra Costa Solid Waste Authoritvfequest for
Proposals for Integrated Solid Waste Management Services and the receipt and evaluation
process by CCCSWA of responses to the request for proposals.
1.7 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time, including
green waste and recyclables. (The term "garbage" is the defined term used within the
PHBS Franchise Agreement, which term is defined therein at section 1(e) and is
synonymous with the term "solid waste" within this agreement.)
5 F:\DMS\TCS.DIR\0118828.08
ARTICLE 2
Obligations of County
2.1
County agrees to apply for membership in, and become a full and, equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this agreement.
2.2
Except as provided herein below, as between the County and CCCSD, the County shall
be responsible to the full extent allowed by law for all solid waste management of the
unincorporated areas of the CCCSD-PHBS Franchise Area as of the effective date of this
agreement. County shall accept the assignment of the PHBS Franchise Agreement from
CCCSD by the date specified in section 3.1.
2.3
Upon the expiration of the current unextended term of the PHBS Franchise Agreement,
as between the County and CCCSD, the County shall be responsible, to the full extent
allowed by law, for administration of all AB 939 activities including diversion and
recycling within the existing CCCSD-PHBS Franchise Area. As of the effective date of
this agreement, the County shall assume any and all responsibilities for AB 939 activities,
except for those specifically reserved in section 3.2 to CCCSD for the remainder of the
PHBS Franchise Agreement term.
6 F:\DMS\TCS.DIR\0118828.08
ARTICLE 3
Obligations of CCCSD
3_1
CCCSD shall file a resolution assigning the PHBS Franchise Agreement for the
remainder of its term and thereafter refraining from exercising its franchising authority
within the CCCSD-PHBS Franchise Area so long as the County exercises its franchising
authority within that area. This assignment and delegation and/or agreement to refrain
from further exercise of authority to franchise shall be effective on October 1, 1995;
provided that the conditions precedent in Article 8, section 8.1 have been satisfied. If
said conditions precedent have not been so satisfied, this agreement and the delegation
and/or agreement to refrain from further exercise of authority to franchise shall not be
effective until said conditions precedent have been met. The District agrees that once
the County joins the CCCSWA and the new franchise agreements with Browning Ferris
Industries and.Waste Management begin, the District will not challenge the County's
right to franchise solid waste in unincorporated areas.
3.2
CCCSD shall continue to administer those AB 939 diversion and recycling activities
currently being undertaken pursuant to the PHBS Franchise Agreement and otherwise
currently being undertaken by CCCSD, or on its behalf within the CCCSD-PHBS
Franchise Area until March 31, 1996. CCCSD, notwithstanding the assignment of the
franchise agreement to County, shall continue to provide this service for the balance of
7 F:\DMS\TCS.DIR\0118828.08
the franchise term, for programs which have already been initiated, such as the home
composting workshops and current recycling promotion.
3.3
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
PHBS Franchise Agreement as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-PHBS Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-PHBS Franchise Area shall not be subject to the jurisdiction of the
CCCSWA and it is not intended that this area be included within the CCCSWA
jurisdictional boundaries, nor is it included in the 1994-1995 CCCSWA collection,
transport and disposal franchise RFP process.
4.2
County shall, in good faith, participate as a member of CCCSWA in the RFP process,
including the execution (along with the City of Walnut Creek) of the franchise
agreements providing for solid waste services within the CCCSWA jurisdiction
contemplated by the RFP; provided that the CCCSWA Board of Directors determines
8 F:\DMS\TCS.DIR\0118828.08
that such solid waste franchise agreements are acceptable and the CCCSWA Board takes
the actions appropriate for entering into such agreements.
ARTICLE 5
Franchise Fees
5.1
CCCSD has received all franchise fee payments pursuant to the PHBS Franchise
Agreement for the remainder of the current term expiring in March 31, 1996, which
franchise agreement shall not be extended. Such fees have already been allocated by
CCCSD to programs for carrying out AB 939 activities within the CCCSD-PHBS
Franchise Area through the remaining term of the PHBS Franchise Agreement. County
shall receive no payment of said previously collected franchise fees; however, nor shall
County be required to pay any membership fee for participation in CCCSWA for the
remainder of the term of the PHBS Franchise Agreement. Nothing in this agreement is
intended to limit County from .imposing additional franchise fees or taking any other
action in administration of the PHBS Franchise Agreement during its remaining term
following the effective date of assignment of said franchise to the County.
ARTICLE 6
Liability Issues
6
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical, Inc., US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
9 F:\DMS\TCS.DIR\0118828.08
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-PHBS Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base of the
existing CCCSD-PHBS Franchise Area, notwithstanding the assignment/transfer of the
franchise authority to the County. The proportionate share of responsibility for the
constituents/customers in the CCCSD-PHBS Franchise Area shall be based on the waste
derived historically from the wasteshed area. By entering this agreement, the County is
not assuming any responsibility or liability for the defense of the Acme Lawsuit for this
wasteshed area.
6.2
The County as the future rate setting entity, agrees that the proportionate share of any
liability or settlement costs (including a proportionate share of net legal costs and
expenses incurred after the termination of the Franchise Agreement) shall be borne by
the customer/constituent base of the CCCSD-PHBS Franchise Area, and amounts
sufficient to pay for the net proportionate liability, costs and expenses, if any, after
deducting all insurance and contribution proceeds allocable to this wasteshed, shall be
provided and collected to the fullest extent allowed by law as a pass-through in the
collector franchise rates for the area, whether the liability and/or settlement costs for this
wasteshed be directly imposed on CCCSD and/or the County in the Acme Lawsuit. If
10 F:\DMS\TCS.D1R\0118828.08
deemed appropriate, the County may (at its discretion) collect such proceeds as charges.
or fees imposed at any County franchised landfill and/or transfer station facility receiving
solid waste from the PHBS Franchise Area.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively,
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current PHBS Franchise Agreement or arising from other
solid waste administration activities within the CCCSD-PHBS Franchise Area as a result
of occurrences during such term, shall be the responsibility of CCCSD with respect to
occurrences prior to the effective date of assignment of the PHBS Franchise Agreement,
as set forth in section 3.1. As between County and CCCSD, County shall be responsible
for any liability arising as a result of occurrences after said date of assignment of the
PHBS Franchise Agreement and during County franchise administration. In no event is
County, by entering this agreement, assuming any legal liability for the said wasteshed
area for any period prior to the said effective date of assignment of the PHBS Franchise
Agreement except as specifically set forth above.
11 _ F:\DMS\TCS.DIR\0118828.08
ARTICLE 7
Indemnity
7_1
CCCSD shall indemnify, defend and'hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 arising at any time
from occurrences prior to the effective date of the assignment the current PHBS franchise
agreement. The liabilities, damages and expenses, as set forth herein, arising from the
Acme Lawsuit shall be excepted from this indemnity and handled as set forth in
paragraphs 6.1 through 6.3, inclusive.
7.2
County shall indemnify, defend.and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to.or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above arising from
occurrences after the effective date of the assignment of the current PHBS Franchise
Agreement.
12 F:\DMS\TCS.DIR\0118828.08
ARTICLE 8
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this agreement becoming
legally effective (in addition to the proper execution of this agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall in the same manner
as the City of Walnut Creek take such legal action as may be required to delegate the
County's solid waste collection, transport and disposal franchise authority for the
unincorporated areas within the jurisdictional boundaries of the CCCSWA (as such areas
are further described in the CCCSWA 1994-1995 RFP documents and the map attached
hereto as Exhibit B) td-the CCCSWA to enable the CCCSWA to enter into regional
franchises pursuant to the CCCSWA 1994-1995 RFP process.
ARTICLE 9
Consent to Assi ng ment
9.1
This agreement is subject to CCCSD obtaining consent by PHBS, Inc. to,the assignment
of the franchise agreement from CCCSD to the County, said. written consent to be
acceptable to and approved by CCCSD and the County. Said consent shall include a
provision.from PHBS, Inc. that PHBS, Inc. will not bring suit or seek any other relief
from CCCSD concerning any issues relating to the exclusivity of the franchise agreement
13 F:\DMS\TCS.D1R\0118828.08
and/or the jurisdictional boundaries of the franchise for all periods prior to the effective
date of assignment of the PHBS franchise agreement. If this consent is not obtained and
approved by CCCSD and the County by-the expiration (March 31, 1996)of the CCCSD-
PHBS Franchise Agreement, nothing herein shall be construed to prevent the County's
exercising of whatever franchising authority it has in the Franchise Area.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
10.2 Parag=raph headings
The article headings and paragraph headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
10.3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
10.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
14 F:\DMS\TCS.DIR\0118828.08
10.5 Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall.not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
10.6 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
10.7 Surviving_Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
10.8 Future Franchising, Authority
Except for the up-to-one-year extension period allowed by a separate County-CCCSD
Transitional Agreement for CCCSD administration of the current Waste Management
Collection and Recycling, Inc. (Valley Waste Management) franchise, it has been and
remains the County's position that on and after the expiration of the CCCSD-PHBS
Franchise Agreement, CCCSD has no franchise authority for the unincorporated,areas
covered by this agreement to the extent the County thereafter franchises and/or regulates
15 F:\DMS\TCS.DIR\0118828.08
(e.g., delegates, etc.) for said areas. Nothing herein shall be construed as a waiver or
modification of past County actions or its position in this regard, except for the said up-
to-one-year extension period. It is understood and recognized that CCCSD does not
agree with this County position.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of
the date last written below.
Dated: 101, 1995 C O A ARY DISTRICT
BY: !
Roger Dolan, neral anager
Dated: 1995 COUNTY OF CONTRA OSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, Ge al ounsel
Central Contra Costa Sanitary District
ictor J. Westman, County Counsel
County of Contra Costa
16 F:\DMS\TCS.D I R\0118828.08
AGREEMENT FOR COLLECTION, REMOVAL
AND DISPOSAL OF GARBAGE
ZONE 3
I
0
AGREEMENT FOR COLLECTION, REMOVAL
AND DISPOSAL OF GARBAGE
ZONE 3
This Agreement made and entered into this 1st day of April, 1986, by
and between the District and the Contractor,
WHEREAS the District and Contractor ' have entered into a Second
Amended Agreement for Collection, Removal and Disposal of Garbage dated
the 1st day of July, 1976s (hereinafter referred to as "said Agreement")
granting . to Contractor the exclusive privilege to collect, remove and
dispose of garbage in the Zone until November 30, 1986; and
WHEREAS, said Agreement provides that it may be extended on November
30, 1986 at the option of the Contractor, unless at least two years prior
to the termination of said Agreement the District has notified the
Contractor in writing that it does not desire said Agreement to be
extended for an additional period; and
WHEREAS, the Contractor exercised its option to extend said
Agreement; and
WHEREAS, the District has notified the Contractor that it does not
desire said Agreement to be extended under the same terms and conditions.
NOW, THEREFORE, in consideration of the covenants and agreements of
the parties hereto and the payment of certain fees as hereinafter set
forth, it is mutually covenanted and agreed as follows:
1. DEFINITIONS:
As used herein, the following terms shall have the meanings set
forth below
. (a) "Agreement": This Agreement for the collection, removal ,
recycling and disposal of garbage by and between the District and the
Contractor entered into as of the date first written above.
(b) "Contractor": Boyd M. Olney, Jr. , dba Pleasant Hill Bay
Shore Disposal.
(c) "Customers": Those who have contracted with the
Contractor for the collection, removal, recycling or disposal of garbage
as provided herein, or who may be required to accept and pay for said
service by local ordinance.
(d) "District": The Central Contra Costa Sanitary District, a
C public corporation.
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TABLE OF CONTENTS
Section Page
1. Definitions 1
2. Exclusive Privilege 3
3. Intent to Regulate All Garbage Collection, 3
Removal or Disposal
4. Exceptions to Exclusive Privilege 3
5. Right to Sell Valuable Commodity 4
6. Rates 4
7. Duty of Contractor to Maintain Records-- 4
Right of District to Examine Contractors Records
8. Applications by Contractor for Rate Increase 6
9. Operation By Contractor 6
10. Complianco with Federal , State and Local Ordinances 6
11. Limitation of Time on Collection 7
12. District May Require Efficiencies in Operation 7
13. Salvage 7
14. Faithful Performance Bond 7
15. Insurance 8
16. Legal Liability 8
17. Attorneys' Fees 9
18. Miscellaneous Obligations of Contractor 9
19. Fee for Exclusive Privilege 9
20. Billing 10
21. Assignability of Agreement 10
22. Involuntary Assignment 11
23. Notice Provisions 11
24. Recycling 11
25. Waste to Energy Program 12
26. Hazardous Waste 13
27. Disposal of Garbage 13
i
Section Page
28. Annexation and Change of Zone Boundaries 14
29. Takeover of Franchise Rights by Other Public 15
Entity
30. Affiliated Entities 15
31. Breach and Termination 16
32. Emergency 17
33. District Code 18
34. Term of the Agreement 18
35. Contest of Agreement's Term by the Parties 19
36. Severability 19
37. Terms of Agreement Bargained For 19
38. This Agreement Shall Supersede Prior Agreements 19
ii
i
(e) "Garbage":
(1) animal , fruit and vegetable refuse;
(2) offal ;
(3) leaves and cuttings, trimmings from trees, shrubs and
grass;
(4) inorganic refuse and rubbish;
(5) anything thrown away as worthless; provided, however,
that garbage shall not be defined as or include Hazardous Waste, Septage
or Industrial Waste.
(f) "Hazardous Waste": A waste, or combination of wastes,
which because of its quantity, concentration, or physical , chemical , or
infectious characteristics may either:
(1) cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or incapacitating
reversible, illness; or
(2) pose a substantial present or potential hazard to
human health or environment when improperly treated, stored, transported,
or disposed of, or otherwise managed.
( This definition will include, but not be limited to, hazardous
waste as defined by the State of California and its agencies, or the
United States or its agencies.
(g) "Industrial Waste": Non-sewered liquid waste and solid
waste produced as by-products of industrial processes, or other refuse
produced or accumulated as a result of industrial processes, including
waste produced by the District and other public entities as a result of
treatment or other processes undertaken in providing public utility
services.
(h) "Septage": Non-sewered liquid or semi-liquid waste which
may be trucked to the District or other treatment facility for disposal,
to include, but not limited to, waste from residential septic tanks,
commercial grease cleanouts, and industrial waste holding facilities.
( i) "Waste stream": The garbage to be collected under this
Agreement from the time of the collection by the Contractor to the
disposal of same by the Contractor.
(j) "Zone": The geographic area generally described in
Exhibit A to this Agreement, which exhibit is attached hereto and
Incorporated herein by reference, and more particularly as set forth in
the six hundred (600) scale maps maintained and available for inspection
at the office of the Secretary of the District, excepting therefrom any
geographic area which is within the boundaries of another jurisdiction,
including any military base, which is exercising its authority to
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regulate garbage collection. Said six hundred (600) scale maps shall
reflect changes of boundaries of the Zone in such a manner as to identify
each alteration to the Zone and the effective date thereof.
2. EXCLUSIVE PRIVILEGE
The District, by this Agreement, grants to the Contractor for the
term as set forth in paragraph 34 of this Agreement, unless terminated in
accordance with this Agreement, the exclusive privilege and duty to
collect, remove and dispose of all garbage as said term is defined in
this Agreement within the Zone. This exclusive privilege to collect,
remove, and dispose of garbage is only qualified as set forth in this
Agreement.
The Zone may be expanded or reduced in size (a) by mutual agreement
of the parties; or (b) as provided in paragraphs 28 and 29 of this
Agreement.
3. INTENT TO REGULATE ALL GARBAGE COLLECTION, REMOVAL OR DISPOSAL:
The parties hereto agree that the District currently has
jurisdiction to regulate the collection, removal and disposal of all
garbage in the Zone. The parties further agree that by the terms of this
Agreement the District has exercised its jurisdiction and is regulating
the collection, removal and disposal of all garbage in the Zone. This
Agreement does not regulate the collection, removal and disposal of
industrial waste, hazardous waste or septage.
Whether a particular garbage collection activity is regulated by
this Agreement or not, is within the sole determination of the District.
If there is any question as to whether the garbage collection activity is
regulated or unregulated, it shall be the responsibility of the
Contractor to inquire of the District and thereafter provide such
information as the District may require to enable the District to provide
Contractor with a formal written opinion as to whether the garbage
collection activity is regulated or unregulated.
4. EXCEPTIONS TO EXCLUSIVE PRIVILEGE:
The exclusive privilege granted by this Agreement shall not apply
if:
(a) The person or entity generating garbage personally
collects, removes and disposes of such in a clean and sanitary manner in
conformance with all applicable laws and regulations, or
(b) The person or entity generating inorganic refuse or
rubbish contacts the Contractor to arrange for the collection, removal
and disposal of such and the Contractor declines to do so or is unable to
do so in a.timely manner, or
(c) The person generating the garbage contracts with another
to remove and dispose of ( i) inorganic refuse or rubbish, or (ii) leaves,
cuttings, trimmings from trees, shrubs or grass by truck or other
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` vehicular means, when such removal is incidental to other contract work
being performed.
Nothing in this paragraph shall be construed to eliminate or qualify
the exclusive privilege of the Contractor to provide drop boxes and/or
bulk collection containers for collection of garbage within the Zone.
5. RIGHT TO SELL VALUABLE COMMODITY:
This Agreement is not intended to and does not affect or limit the
right of any person to sell any valuable commodity to the Contractor or
to any other person lawfully doing business within the Zone at prices
agreed upon by the parties to such transaction, provided that the
valuable commodity is separated at the source by the generator and that
the person purchasing the valuable commodity does not collect and dispose
of other garbage.
6. RATES:
Contractor shall perform the responsibilities and duties herein
agreed in the Zone in accordance with and in consideration of the
reasonable rates fixed by the District from time to time. The statement
that the actions in paragraphs 12, 24, 25, and 27 may be directed "at no
cost to the District" shall not be construed to mean that the Contractor
is prohibited, subject to the District's approval, from passing on its
costs of taking those actions to- the Customers. It is the intent of the
parties that the rates fixed shall be in conformity with applicable law.
7. DUTY OF CONTRACTOR TO MAINTAIN RECORDS -- RIGHT OF DISTRICT TO
EXAMINE CONTRACTOR'S RECORDS:
Contractor shall maintain a proper set of books and records in
accordance with generally accepted accounting principles, accurately
reflecting the business done by it under this Agreement.
Contractor shall further maintain records as to its total number of
customers, said records to detail the types of customers and such other
operating statistics in such manner and with such detail as the District
may require.
The Contractor shall, by March 31 of each year, submit to the
District an operating statement for Zone 3 for the most recent reporting
year, prepared on a compiled basis by a Certified Public Accountant which
will comply with the following requirements:
(a) A statement by the Certified Public Accountant that the
operating statement was prepared on a compiled basis, as defined in
American Institute of Certified Public Accountants' Statement on
Standards for Accounting and Review Services No. 1, will be affixed to
the operating statement.
(b) The operating statement will be based on revenue and expense
accounts which will be established to determine the results of such
operation as a separate division within the Contractor's single entity.
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(c) The operating statement will present revenues by category of
regulated service, and expenses will be reported in accordance with the
formats developed in the Price Waterhouse report dated February 70 1983.
(d) Customary footnote disclosure should be provided with the
statement of operations, and should include an explanation of the
allocation bases used for all expense accounts.
In the event the Contractor is required by another public entity or
regulator to provide audited financial statements, the Contractor will
transmit a copy of the audited financial statements to the District and
thereafter submit such audited financial statements to the District by
March 31 each year, in lieu of the compiled operating statement.
The Contractor shall further furnish to the District a report of its
total number of customers within the Zone by types .of customers and such
other operating statistics in such manner and with such detail as the
District may request.
The District may, at its own expense, at any time during the term of
this Agreement, examine the books and records of the Contractor, or have
the books and records of the Contractor examined by a person appointed
for that purpose by the District. District shall give thirty (30) days
written notice to the Contractor in advance of such examination date.
The information required by this paragraph shall pertain to lie
Contractor's operations in the Zone. Nothing contained herein shall
require the Contractor to provide the District with information
pertaining to the Contractor's operations which are not regulated by the
District; provided that the District's agent may examine the Contractor's
books, records and financial statements pertaining to operations not
regulated by the District for the sole purpose of gathering information
necessary to allow the agent to ascertain and communicate to the District
whether income, expenses, assets and liabilities are reasonably and
consistently allocated among operations regulated by the District and
operations not regulated by the District. As used in this paragraph
"District Agent" shall mean an independent Certified Public Accountant,
as agreed upon by the parties, or, failing agreement, appointed by the
Presiding Judge of the Contra Costa County Superior Court.
Notwithstanding this requirement to use an independent Certified Public
Accountant as the "District Agent," the District may use District
employees, or any other person designated by the District, to examine
records of the Contractor otherwise available to other public entities.
Information gained from such examination of records pertaining
to operations not regulated by the District shall be treated by the
District and its agents as confidential information. However, nothing in
this paragraph will prevent the District allowing public access to
District records as provided for under the California Government Code,
and in the event any dispute arises as to the public access to
information provided by the Contractor under the terms of this Agreement,
the District shall in its discretion provide public access to said
information according to law or tender the defense of any claims made
against the District concerning said information to the Contractor.
t
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8. APPLICATIONS BY CONTRACTOR FOR RATE INCREASE:
Any and all requests for rate increases, excepting those provided
for under paragraphs 12, 24, 25, and 27 of this Agreement, may be made no
more frequently than on an annual basis. Any such request for rate
increase by the Contractor, excepting those provided for in paragraphs
12, 24, 25, and 27 of this Agreement, shall be submitted together with
the compiled operating statement required under paragraph 7 of this
Agreement by March 31 of that year. Approval of the rate increase, or
other action by the Board on the application, shall occur only after the
District- has had sufficient time to review the application and financial
statement, and in no event will a rate increase take effect before July 1
of the year in question.
Rate increase applications submitted by Contractor will be prepared
using such formats, including such operating statistics as the District
may prescribe from time to time. Any rate increase application will be
accompanied by the compiled operating statement for the most recent
reporting year preceding the requested effective date of rate increase.
In the event the Contractor is required to make . changes in its
operation pursuant to the conditions set forth in paragraphs 12, 24, 25,
and 27 of this Agreement, the Contractor may petition the Board using the
format mentioned herein, at any time during the calendar year. The
District staff shall calendar the petition for rate increase within
( seventy-five (75) days of receipt of an extraordinary petition presented
pursuant to paragraphs 12, 24, 25, and 27 of this Agreement.
9. OPERATION BY CONTRACTOR:
Contractor shall furnish all necessary equipment for the operation
of refuse collection service in the Zone and shall maintain such
equipment in a sanitary condition at all times. Contractor shall furnish
all necessary labor in connection with the operation of a refuse
collection service in the Zone.
The Contractor, in performance hereof, shall use covered (by
tarpaulin or otherwise) water-tight bodied motor trucks with truck bodies
constructed of sufficient strength to withstand a fire within, without
endangering adjacent property. The trucks, drop boxes, bins, or similar
types of equipment shall be kept neat and clean and in good repair. The
Contractor shall paint its name, permit number and telephone number on
the side of each truck (in letters at least four (4) inches high) and
each drop box, bin or similar type equipment owned or leased by the
Contractor.
10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL ORDINANCES:
The Contractor shall comply with all applicable ordinances and rules
and regulations that are now in effect or may be promulgated or amended
from time to time by the Government of the United States, the State of
i California, the County of Contra Costa, the District and any other agency
now authorized or which may be authorized in the future to regulate the
services to be performed herein regarding the collection, removal and
disposal of garbage.
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11. LIMITATION ON TIME OF COLLECTION:
The Contractor shall make a systematic collection of garbage from
each place where collection is made in a manner that the person receiving
the service can predict the day on which collection will be made.
Contractor shall not collect garbage from an inhabited dwelling or
dwelling unit between the hours of 7 p.m. and 4 a.m.
12. DISTRICT MAY REQUIRE EFFICIENCIES IN OPERATION:
The District may from time to time at Its discretion and at Its
expense, examine the Contractor►s operation in order to insure that the
Contractor is operating at a satisfactory level of efficiency.
The Contractor agrees to cooperate in any such examination and shall
provide for inspection to the District or its designated representatives,
at the Contractor's principal place of business, such information as the
District may require, including but not limited to, such things as
collection routes and equipment records.
In addition, the District may require the Contractor to evaluate
alternative methods of garbage collection for the purpose of improved
efficiencies and to develop and submit a plan to implement the
efficiencies within one hundred and eighty (180) days of notice to the
Contractor, The District can require the Contractor to Implement the
l efficiencies within one (1) year of approval of the Contractor's plan,
unless the Contractor can demonstrate that one (1) year is unreasonable.
Should the District commence such a program as outlined in this
paragraph, Contractor agrees to not only do those things specified
herein, but also to act at the direction of the District on other matters
that may be necessary for the success and efficiency of such a
project(s).
13. SALVAGE:
District shall be entitled to the right of salvage at the expense of
the District from the garbage collected pursuant to this Agreement, but
at its sole discretion may delegate this right to, or waive the same In
favor of, the Contractor. District has temporarily waived its right of
salvage and has delegated such to Contractor; and such waiver and
delegation shall continue until notice in writing by the District to the
contrary is given. In the event the District independently wishes to
exercise its right to salvage, the District shall give in writing to the
Contractor notice of its intent and said right shall commence and accrue W
to the District ninety (90) days from the date of said notice. The
salvage rights set forth in this paragraph specifically are intended to
refer to salvage operations once the garbage is in the waste stream.
This paragraph should not be read to be in conflict with the rights to
recycle set forth in paragraph 24.
14. FAITHFUL PERFORMANCE BOND:
i
The Contractor shall submit to the District simultaneously with the
execution of this Agreement a corporate surety bond in the amount of
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$50,000.00. The bond shall be executed by a surety company licensed to
do business in the State of California and acceptable to the District.
The bond shall be approved by the District and shall be payable to the
District. The condition of the bond shall be that the Contractor will
faithfully perform the duties imposed by ordinance, this Agreement and
the rules and regulations of the District. Any action by the District to
proceed against the Bond shall not limit or affect the right of the
District to use other remedies available to the District under the
Agreement, or in courts of law or equity. Notwithstanding the foregoing,
in lieu of the corporate surety bond, Contractor may provide to District
a letter of credit or cash bond in a form satisfactory to the District.
15. INSURANCE:
The Contractor shall maintain and continue in force during the term
of this Agreement, public liability insurance, property damage insurance
and workers' compensation insurance in amounts as shall be annually set
by the General Manager-Chief Engineer after discussion with the
Contractor. The Contractor has the right within ten (10) days' notice of
the insurance coverage amounts, to appeal the decision of the General
Manager-Chief Engineer, to the Board of Directors.
Such insurance shall be obtained from a company or companies
licensed to do business in the State of California and acceptable to the
District. District shall be named as an additional insured on the public
liability and property damage policies and each policy, including
workers' compensation, shall contain a clause providing that the insurer
will not cancel or decrease the insurance coverage without first giving
thirty (30) days' notice in writing to the District. A certificate of
Insurance shall be provided to the District any time the Contractor
alters a policy or changes carriers. A copy of the certificate for each
policy, or at the District's request, a copy of each policy shall be
provided to the District by March 31 of each year. Failure of the
Contractor to maintain Insurance In the manner and amount stated herein
and as directed by the General Manager-Chief Engineer, subject to the
approval of the Board, will constitute a breach of this Agreement.
16. LEGAL LIABILITY:
All work and performance covered by this Agreement shall be at the
risk of the Contractor.
Contractor agrees to save, indemnify and keep harmless the
District, 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 here undertaken or out of the
operations conducted by the Contractor, save and except claims or
litigation arising through the sole negligence or willful misconduct of
the District, and will make good to and reimburse District for any
expenditures, including reasonable attorneys' fees, that the District may
make by reason of such matters and, if requested by District shall defend
any suit at the sole cost and expense of Contractor.
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Upon request by the District, the Contractor shall appear for and
defend the District in any action which challenges the validity of this
Agreement or the procedure by which this Agreement was entered into, or
the validity of any District ordinance which authorizes District to enter
into this Agreement. Defense of the District shall be provided by
counsel satisfactory to the District. All costs of litigation including
attorneys' fees, and, to the extent permitted by law, any money Judgment
entered against District, its Board members, officers or employees or
agents, shall be borne by the Contractor. In each case the District
shall have the sole and final authority to determine whether such costs
and/or Judgment be chargeable as an operating expense or chargeable
against Contractor's profits.
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 District ordinance which authorizes the District to
enter into this Agreement, then in such case the Contractor shall have no
cause of action for damages or any other relief against the District as a
result of such successful challenge.
17. ATTORNEYSt FEES:
In the event of litigation between the parties arising hereunder,
the prevailing party shall recover its reasonable costs of litigation,
including attorneys' fees and costs as determined by the Court.
18. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR:
The Contractor shall maintain an office with adequate telephone
service within the District, and shall keep the office open during usual
business hours for the transaction of business with its Customers and the
public.
No less than once every twenty-four (24) months, and each time the
Contractor requests a rate increase, the Contractor shall notify each
Customer with printed information setting forth the rates, days of
collections, Contractor's complaint procedures, and the amount and manner
of refuse to be collected. The Contractor shall consult with the General
Manager-Chief Engineer, or his designee, to determine the appropriate
manner of notifying each Customer.
The Contractor shall provide three additional all-purpose pickups
per year not to exceed two cubic yards per residential unit in the
residential areas of the Zone. The dates for said additional pickups may
be set by the Contractor, however it is the intent of this Agreement that
they shall be as evenly spaced throughout the year as is practicable and
that the Contractor will provide notice to the Customers of said pickup
dates.
19. FEE FOR EXCLUSIVE PRIVILEGE:
�. The Contractor shall pay to the District for the privilege granted
by this Agreement an annual fee fixed by the District which is reasonably
calculated to reimburse the District for its direct costs in
administering this Agreement, including, but not limited to, outside
professional fees incurred by the District, plus a reasonable allowance
for . overhead of the District as said overhead relates to garbage
franchising; which sums shall be fixed by the District and paid annually
In advance by the contractors, in proportion to the number of customers
served by each franchised contractor.
Amounts due each year shall be paid in advance within thirty (30)
days after July 1 of each fiscal year following the effective date of
this Agreement or within thirty (30) days after the District gives notice
of the amount of the annual fee, whichever comes later.
The fee for the fiscal year beginning July 1, 1985, is hereby fixed
at $4,665, and has been paid. The last payment pursuant to this
paragraph shall be prorated from the beginning of the fiscal year in
which this Agreement ends to the date this Agreement ends.
20. BILLING:
The Contractor may bill its Customers in advance or in arrears.
Bills in advance shall be due and payable thirty (30) days after the
beginning of the billing period. The billing periods for advance billing
shall be at least quarterly unless the District approves a less frequent
billing. Contractor agrees not to discontinue service to a Customer
until a Customer's account billed in advance has been delinquent for a
period of at least sixty (60) days, and notice of the termination is
provided to the Customer thirty (30) days prior to the termination.
Where the Contractor bills in arrears, the bill shall be due and
payable upon presentation and the Contractor agrees not to terminate
service until the Customer's account billed in arrears has been
delinquent for thirty (30) days.
Full payment for debris boxes may be required by the Contractor
prior to delivery of debris box to Customer.
21. ASSIGNABILITY OF AGREEW NT:
The Contractor shall not sell, assign, or transfer this Agreement or
any part hereof, including probate proceedings, to a person other than
David Olney, without the written consent of the District.
Neither this Agreement nor any part hereof, nor any obligation or
service to be performed hereunder shall be assigned or subcontracted
without written consent of District. The term assignment shall include
any dissolution; merger, consolidation or other reorganization of the
Contractor, which results in change of control of the Contractor, or the
sale or other transfer by probate proceeding or otherwise of a
controlling percentage of the Contractor's capital stock to a person not
a shareholder on the date of the execution of this Agreement. In the
event the Contractor herein attempts to assign or subcontract this
Agreement or any part hereof or any obligation hereunder, the District
shall , have the right to elect to terminate forthwith, without suit or
other proceeding.
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t The District may, following a properly noticed public hearing,
assign or transfer this Agreement, or any part hereof, without the
consent of the Contractor to any legally authorized public entity,
including, but not limited to, the County of Contra Costa or any Joint
powers authority created pursuant to Chapter 5, Division 7, Title I of
the California Government Code.
22. INVOLUNTARY ASSIGNMENT:
No interest of Contractor in this Agreement shall be assignable by
operation of law. Each or any of the following acts should be considered
an involuntary assignment providing the District with the right to elect
to terminate the Agreement forthwith, without suit or other proceeding:
(1) If the Contractor is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors or institutes a proceeding under
the Bankruptcy Act in which the Contractor is the bankrupt,
(2) If Writ of Attachment or Execution is levied on this Agreement,
(3) If in any proceeding to which the Contractor is a party a
Receiver is appointed with authority to take possession of the
Contractor's property,
(4) In the event of a probate proceeding where the rights of the
Contractor under the Agreement would pass to another individual or other
individuals.
23. NOTICE PROVISIONS:
Any notice required or permitted under this Agreement shall be in
writing and shall be deemed to have been given if delivered personally or
ten (10) days after posted by certified mail , return receipt requested,
addressed as appropriate, either to the Contractor at: 441 No. Buchanan
Circle, Pacheco, California 94553, or to the District at 5019 Imhoff
Place, Martinez, California 94553, Attention: General Manager-Chief
Engineer.
24. RECYCLING:
District is currently studying refuse recycling as a means to
conserve resources, energy, money and to further enhance the environment.
The parties hereto recognize that refuse recycling, use of waste or
garbage products and improvements in garbage collecting efficiencies are
changing and developing technologies. Notwithstanding anything in this
Agreement to the contrary, at any time during the term of this Agreement
the District may require the Contractor to prepare and submit a plan to
provide refuse recycling in the Zone. The Contractor shall provide such
a recycling plan within 180 days of receiving the written notice
requiring preparation of a recovery plan. The District shall review and
comment upon the proposed recycling plan within sixty (60) days. The
` Contractor shall have thirty (30) days from receipt of District's
comments to modify the Contractor's proposed plan in order to make said
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Qd
� J '
proposed plan acceptable to the District. If the plan is approved by the
District Board of Directors, the Contractor shall implement the plan
within ninety (90) days unless that is impracticable under the
circumstances. . Implementation of a refuse recycling plan will be at no
cost to the District..
The District may require, as an element of a program to recycle
refuse among other things, that the Contractor undertake curbside or home
pickup of recyclable material , and segregate the garbage into elements
suitable for recycling and elements not so suited. The District may
further require that the Contractor deliver the segregated recyclable
refuse to locations or sites selected by the District.
Contractor agrees to not only do those things specified herein, but
also to act at the direction of the District on other matters that may be
necessary for the success and efficiency of a recycling project. The
District shall give reasonable advance notice to Contractor of changes in
the Contractor's operations which may, in the District's discretion,
become necessary due to the implementation of a recycling program.
In the event the Contractor fails to submit or implement a plan in a
timely manner as set forth in this section of the Agreement, or fails to
reasonably act at the direction of District on matters relating to
recycling, any and all such failures will be treated as a breach of this
Agreement and the District shall have the right to elect to terminate
forthwith, without suit or other proceeding.
25. WASTE TO ENERGY PROGRAM:
The District may evaluate the feasibility of a waste to energy
` project as a means to conserve resources, energy and further enhance the
` environment. The parties hereto recognize the technologies in regard to
production of energy from waste refuse are changing and developing. The
i District may, at any time during the term of this Agreement, undertake a
waste to energy project singularly or in conjunction with another entity.
In the event the District undertakes such a waste to energy project, or
determines that the waste stream under this Agreement should be diverted
to another entity's waste to energy facility, the District shall give
thirty-six (36) months' notice to the Contractor of its intent to
commence or participate in such a program. At the expiration of the
thirty-six (36) months, the Contractor shall implement the changes in the
Contractor's operations which may become necessary due to the waste to
energy project.
The District may require, as an element of the waste to energy
project, that the Contractor deliver the garbage collected under this
Agreement, or portion thereof, as directed by the District, to locations
or sites selected by the District for waste to energy production. The
Contractor agrees also to act at the direction of the District on other
matters that may be necessary for the success and efficiency of a waste
to energy project. In this regard, the District shall give reasonable
advance . notice to the Contractor of changes in the Contractor's
operations which may, in the District's discretion, become necessary due
to the implementation of the waste to energy project.
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The Contractor shall have the right and duty to collect and dispose
of nonhazardous waste or refuse produced as a result of operations of a
District owned or controlled waste to energy facility, including, but not
limited to, ash and other solid noncombustible material . The Contractor
shall collect and dispose of a share of the refuse produced by the
facility and said share shall be in proportion to the Contractor's share
of the total garbage delivered to the facility.
In the event that District directs the Contractor to deliver the
garbage to a publicly-owned waste to energy facility, not controlled by
the District, the District will make reasonable effort to secure for the
Contractor the right to collect any waste or refuse produced, or at least
a proportional share thereof.
The District may, in its discretion, undertake a waste to energy
project in conjunction with a recycling program or other garbage program
as set forth in paragraphs 13 and 24 of this Agreement. Nothing in this
paragraph shall be read to be in conflict with the provisions set forth
In paragraphs 13 and 24.
26. HAZARDOUS WASTE:
The parties hereto recognize that federal, state and local agencies
with responsibility for the defining of hazardous waste and for
regulating the collection, hauling or disposing of such substances, are
continually providing new definitions, tests and regulations concerning
these substances. Under this Agreement, it is the Contractor's
responsibility to keep current with the regulations and tests on such
substances and to identify such substances and to comply with all
federal, state and local regulations concerning such substances.
Contractor agrees to provide to the District upon its request the
Contractor's program for identifying hazardous waste and complying with
all federal, state and local statutes and regulations dealing with
hazardous waste.
The Contractor shall make every reasonable effort to prohibit the
collection and the disposal of hazardous waste in any manner inconsistent
with applicable law.
27. DISPOSAL OF GARBAGE:
Throughout the term of the Agreement, unless District gives notice
as provided for' herein, it shall be the Contractor's sole responsibility
and duty to dispose of the garbage and waste and other material collected
by virtue of this Agreement, including any extension granted by the
Board, in a safe manner in compliance with all federal, state and local
regulations.
(a) Prior to April 1, 1991, the Contractor must provide the
District with conclusive proof that: (1) the Contractor has ownership
i of, or a legally binding right to use, a properly approved and permitted
disposal site(s); (2) that said disposal site(s) has sufficient capacity
available to the Contractor to provide for disposal of all garbage to be
-13-
collected under this Agreement; (3) and that said site(s) provides an
economically satisfactory disposal alternative. Proof of each of these
conditions shall be provided in writing to the satisfaction of the
District Board of Directors.
In the event said conditions have not been met to the Board's
satisfaction by April 1, 1991, the District shall have the right to
declare a breach or default of said Agreement and may proceed, pursuant
to paragraph 31 of this Agreement, to terminate this Agreement.
Subject to the provisions set forth hereinafter in subsection (b),
the District, in its sole discretion, may direct the garbage collected
under this Agreement to be delivered to any site of . its choosing. This
shall include the right of the District to direct the disposal, at no
cost to the District, of all garbage collected by virtue of this
Agreement, to a transfer station or stations, disposal site or sites
selected by the District, including disposal sites that may be owned and
operated by the District, provided that the disposal of garbage at such
transfer station(s) or site(s) is authorized by law. Contractor agrees
that the District may charge the Contractor a reasonable fee for the
disposal of garbage collected by virtue of this Agreement, if such
garbage is disposed of at the site(s) owned by or controlled by the
District and said charge shall be passed on to the Customer by means of
rates fixed by the District.
(b) District agrees in the -event that the Contractor becomes owner
of or interest holder in a privately owned disposal site, other than the
current ACME Landfill Corporation disposal site in Martinez, and
secondly, that the Contractor tenders to the District all rights and
legal authority to regulate rates and charges for use of such site by all
persons or entities, including but not limited to site inspections and
audits, the District will direct all garbage collected under this
Agreement to be delivered to said privately owned disposal site for the
term of the Agreement, including any extensions which may be granted.
The District may thereafter, in its discretion, assume the rate setting
authority or any portion thereof. This Agreement on the part of the
District is conditioned upon the privately owned disposal site being
properly approved and permitted by the necessary public boards and
entities. The District in all instances retains the right to direct the
garbage collected under this Agreement to a transfer station prior to the
delivery to a privately owned disposal site. Nothing in this subsection
shall be construed to be in conflict with or eliminate the rights and
obligations provided for in paragraphs 24 and 25.
28. ANNEXATION AND CHANGE OF ZONE BOUNDARIES:
The District agrees to give notice to the Contractor by April 1 of
the next calendar year of any geographic area which has been annexed to
or deannexed from the District during the preceding calendar year or
which has been included in, or excluded from, the Zone. Such notice
shall specifically describe the changed boundaries of the Zone. If such
notice is given to the Contractor, all of the provisions of this
Agreement shall apply to the collection, removal , and disposal of garbage
within such changed boundaries of the Zone beginning on July 1 of the
-14-
calendar year following the preceding calendar year during which such
annexation or deannexation occurred.
The Contractor shall give notice to the District by April 1 of the
next calendar year of any geographic area in the Zone or immediately
contiguous to the Zone, in which the Contractor has commenced service
within the preceding year, notwithstanding whether the Contractor deems
that area to be regulated or unregulated.
The Contractor realizes that the District and Zone boundaries may be
altered by virtue of actions taken by the Contra Costa County Local
Agency Formation Commission (LAFCO). The Contractor agrees that should a
municipal corporation, which at the date of the signing of this Agreement
exercises its lawful authority to franchise garbage collection, lawfully
annex territory which is within the Zone, the District may make such
alterations to the Zone as the annexation necessitates. Should the
District boundaries be amended so as to change the boundaries of the
Zone, the Contractor agrees that it will abide by whatever changes in the
Zone which become necessary due to changes in the District boundaries
made by the Local Agency Formation Commission. The Contractor agrees
that the District Board of Directors may make such alterations to the
Zone as are necessitated by such Local Agency Formation Commission
actions and shall have no right or claim to damages or other relief
against the , District for such alterations to the Zone. The District
shall provide notice to the Contractor of all petitions or resolutions
sent by the District to LAFCO for annexation or deannexations which may
directly affect the territories included in the Zone.
29. TAKEOVER OF FRANCHISE RIGHTS BY OTHER PUBLIC ENTITY:
In the event that the County, or a municipal corporation, which at
the date of the signing of this Agreement has boundaries within the Zone
which areas are franchised under this Agreement, takes action, after such
date of signing, to assume the powers and responsibilities of the
franchisor in relation to garbage collection and disposal in those areas
within the Zone, the rights of the respective parties in regard to this
Agreement shall be set forth in Health and Safety Code 4270 et seq. and
other applicable law of the State of California.
Notwithstanding any lawful action by another public entity to take
over the right to franchise solid waste handling, collection and
disposal , the District shall retain the right at all times during the
term of this Agreement, including any extensions granted by the District
Board, to direct the disposition of. all garbage collected within the
Zone. Contractor agrees, notwithstanding any actions taken by another
public entity in regard to assuming the role of the solid waste
franchisor, to deliver the garbage collected under this Agreement to the
location or locations designated by the District during the term of this
Agreement, including any extensions granted by the District Board.
30. AFFILIATED ENTITIES:
The Contractor shall provide information necessary to satisfy the
District that the charges made by any affiliated entity are reasonable.
-15-
L
"Affiliated entity" shall be defined, for purposes of this paragraph, as
( any entity which provides products or services to the Contractor and in
which the Contractor owns a ten percent <10%> or greater interest. The
District shall have the right to inspect the financial records of any
affiliated entity in which the Contractor owns a ,majority interest. For
purposes of this paragraph the term "Contractor" shall include the
Contractor, if an individual, and all members of his or her immediate
family; or if a corporation, the controlling shareholder and the
controlling shareholder's immediate family members. For the purpose of
this paragraph, "Immediate Family" includes spouses, children, and
relatives of the first degree of sanguinity.
31. BREACH AND TERMINATION:
The General Manager-Chief Engineer of the District shall have
authority, subject to review by the Board of Directors of the District
upon appeal, to determine whether a breach of any provision of this
Agreement by the Contractor has occurred. Any waiver or breach shall not
be deemed to be a waiver of any subsequent breach or to be construed as
approval of a course of conduct. In the event that a breach occurs, the
District shall give the Contractor notice of the breach, in writing,
setting forth the breach or default. The Contractor shall have a
reasonable period to cure the noticed breach, said period not to exceed
sixty (60) days. In the event the breach or default is cured to the
satisfaction of the General Manager-Chief Engineer of the District within
the period of time allotted, the breach shall not be deemed a material
( breach. In the event that the General Manager-Chief Engineer determines
that the Contractor has failed to satisfactorily cure the breach or
default within the period of time allotted, the General Manager-Chief
Engineer may determine such breach or default to be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall provide an
adequate basis for the General Manager-Chief Engineer, in his discretion,
to declare any subsequent breach to be material, notwithstanding whether
or not that breach is ultimately cured by the Contractor.
If such a determination of material breach is made, the General
Manager-Chief Engineer's determination shall be automatically appealed to
the Board for final action.
A material breach shall be cause for termination of this Agreement
by the Board of Directors of the District.
In the event of a termination prior to the natural expiration of the
term of this Agreement, the District shall have the right to temporarily
assume the obligations of the Contractor and shall therefor have the
right to forthwith take possession of all trucks and other equipment of
the Contractor and exercise the Contractor's right to enter and use any
disposal facilities for the purpose of performing the services agreed to
be performed by the Contractor herein until such time as the District can
make other arrangements for the performance of said services. However,
such temporary assumption of Contractor's obligations under the Agreement
shall not be continued by the District for a period exceeding twelve (12)
months from the date such operations are undertaken by the District.
-16-
t Lei '5H,
During any period in which District has temporarily assumed the
obligations of Contractor under this Agreement, District shall be
entitled to the gross revenue attributable to operations during such
period and shall pay therefrom only those costs and expenses applicable
or allocable to said period, including the reasonable rental value of the
trucks and equipment to be paid to the Contractor. The excess, if any,
of revenue over applicable or allocable costs and expenses during such
period shall be deposited with the District funds to the credit of the
operation and maintenance account. The loss, if any, during such period
shall be a charge against Contractor, and shall be paid to the District
by the Contractor upon demand. Final adjustment and allocation of gross
revenue, costs, and expenses to the period during which the District
temporarily assumed the obligations of Contractor shall be determined by
an audit by a Certified Public Accountant and prepared in report form
with his unqualified opinion annexed thereto.
District shall indemnify Contractor against and hold it harmless
from, 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 operations and
obligations of Contractor which District assumes pursuant to the
provisions of this paragraph 31, save and except claims or litigation
arising through the sole negligence or willful misconduct of Contractor
and will make good to and reimburse Contractor for any expenditures,
Including reasonable attorneys' fees, that the Contractor may make by
reason of such matters and, if requested by Contractor, shall defend any
suit at the sole cost and expense' of District.
Nothing in this Agreement shall prevent the District during any
period in which District temporarily assumes the obligations of the
Contractor under this Agreement, from employing persons who were employed
by the Contractor for the collection of garbage under this Agreement.
Upon the occurrence of said breach and the declaration of such by
the Board of. Directors of the District, this Agreement and the franchise
granted thereunder shall be of no further force and effect, excepting
these provisions concerning District's right to temporarily assume the
Contractor's obligations and to use Contractor's facilities upon early
termination as provided herein. The District then shall be free to enter
Into whatever other arrangements are deemed justified and necessary for
the collection, removal and disposal of garbage within the Zone.
Failure by the District to provide the Contractor with the exclusive
franchise to collect and dispose of garbage within the Zone, as defined
in this Agreement, and except as set forth in paragraph 32, shall
constitute a material breach of this Agreement which will allow the
Contractor, in its discretion, to terminate the Agreement and be relieved
of all obligations and duties hereunder. Notice of termination by the.
Contractor must be provided to the District one (1) year prior to
cessation of the duties and responsibilities of the Contractor hereunder.
32. EWMENCY:
Notwithstanding the Contractor's exclusive franchise rights set
forth in paragraph 31, in the event of an emergency due to natural
-17-
disaster or labor strike which interrupts the collection of garbage by
the Contractor, the Board of Directors of the District shall have the
right to declare a temporary suspension of this Agreement for the
reasonable duration of the emergency and until such time as the District
determines that the Contractor is able to reassume all obligations under
this Agreement. Should Contractor fail to demonstrate to the
satisfaction of the Board of Directors of the District that required
services can be resumed by Contractor prior to the expiration of a six
(6) month period, this Agreement may be terminated at the direction of
the Board of Directors.
An emergency or a declaration terminating the Agreement may be
declared by a resolution adopted by a four-fifths <4/5> vote by the
District's Board of Directors.
33. DISTRICT CODE:
This Agreement is entered into under and by virtue of the authority
of and pursuant to Title 8 of the Code of the District and in accordance
with the provisions thereof, and any subsequent amendment thereto, which
are hereby incorporated in this Agreement by reference.
34. TERM OF THE AGREEMENT:
The term of this Agreement and the exclusive franchise granted
hereunder shall be for a period. of ten (10) years from April 1, 1986, to
March 31, 1996, subject to the provisions of paragraphs 27 and 31 of this
Agreement.
In the event that the three (3) conditions set forth in paragraph
27(a) have been met to the satisfaction of the Board by April 10 1991,
and the further event that the Board thereafter determines that the
Contractor has provided a satisfactory level of service at rates
reasonable to the ratepayers, the Board may, in its discretion, extend
the term of this Agreement for a period not to exceed five (5) additional
years, or for a total term not to exceed fifteen (15) years.
If the Board wishes to take action concerning this option to extend,
such Board action shall be taken and notice given to the Contractor of
such action prior to April 1, 1994. The Board has the option to:
(a) Extend the franchise for a period up to five (5) years under
the terms of this Agreement, or;
(b) Extend the franchise for a period of up to five (5) years,
under the terms of this Agreement including any modifications thereof as
may be required in the discretion of the Board, or;
(c) Refuse to extend the term beyond March 31, 1996.
Failure of the Board to take action with regard to the extension of
term under this paragraph by April 1, 1994 shall constitute a rejection
by the District of the option to extend and the Agreement shall terminate
in due course on March 31, 1996.
-18-
All modifications of the Agreement which may become a condition of
an extension of the term shall be in writing and notice of such
modification shall be served upon the Contractor prior to April 1, 1994.
The Contractor shall give notice to the District as to acceptance or
rejection of the extension under the terms offered within three (3)
months of the date of service of the notice from the Board. Failure of
the Contractor to give timely notice will constitute a rejection of the
offer to extend.
35. CONTEST OF AGREEMENT' S TERMS BY THE PARTIES:
In the event either party to this Agreement attempts to challenge
the validity of any portion of this Agreement, such action in attempting
to challenge the Agreement shall constitute a material breach of this
Agreement and the nonbreaching party shall have the right to elect to
terminate forthwith without suit or other proceeding.
This paragraph 35 shall not be construed to prevent either party
from seeking redress to the courts for the purposes of legal review of
administrative procedures in regard to rate setting or District actions
taken pursuant to this Agreement, or for the purpose of enforcing the
provisions contained in this Agreement.
36. SEVERABILITY:
In the event legal action is brought by a person or entity, other
than the parties to this Agreement, to challenge, invalidate, contest or
set aside any of the provisions of this Agreement, each and every term
and condition, and each and every section and paragraph is severable from
the remaining terms, conditions, sections, and paragraphs. The
Invalidation of any term, condition, section or paragraph as a result of
a legal action, brought by a person or entity not a party to this
Agreement, shall not affect the validity or enforceability of the
remaining provisions. Each of said remaining provisions shall remain in
full force and effect.
37. TERMS OF AGREEMENT BARGAINED FOR:
All terms, conditions and obligations contained in this Agreement
have been bargained for and agreed upon by the parties in good faith.
Further, the parties have entered into this Agreement on the advice of
counsel .
38. THIS AGREEMENT SHALL SUPERSEDE PRIOR AGREEMENTS:
This Agreement shall supersede any and all agreements heretofore
entered into by the parties hereto.
i
-19-
A may'�,•�. �v .. _ �._� RFs
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in duplicate by its duly authorized officers and
representatives as of the date first above written.
CENTRAL CONTRA COSTA SANITARY DISTRICT
By:
Its: President of the Board of Directors
By:
Its: Sec' t ry of the District
Approved as t o'4L/avo/
hm:
unsel the gj.s ct
PLEASANT HILL BAY SHORE DISPOSAL
"-.'Z'
/
its: 6cJfyfd
Approved as to form:
Counsel to Pe Contractor Ua
-20-
NORTH CONCORD/PACHECO/CLYDE
SOLID WASTE
FRANCHISE AREA
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DISCLAIMER: This map shows generalized boundaries drawn according to information
provided to CCCSD prior to the above date. Discrepancies should be resolved with the
appropriate agency and sent to CCCSD to be included in the ne#edition of this map.
b
RECEIVED
April 26, 1996 .®.
APR 2 6 1996
To: Clerk of the Board
CLERK BOARD OF SUPERVISORS
CONTRA COSTA Co.
From: Mary Fleming
Solid Waste Program Manager
Subject: Assignment of Pleasant Hill Bayshore Disposal Franchise Agreement from Central C.C.
Sanitary District to County and Pleasant Hill Bayshore Disposal Consent;North Concord,
Pacheco, Clyde
Enclosed is an original of the Assignment with attachments ( Transitional Agreement
Between County of Contra Costa and Central Contra Costa Sanitary District for the Collection of
Solid Waste within Certain Unincorporated Areas of the North Concord/Pacheco/Clyde Solid
Waste Franchise Area) that was heard by the Board of Supervisors on Aug. 8, 1995 as item
SD.11- 3 and 4.
Also enclosed is the Transitional Agreement Between County of Contra Costa and Central
Contra Costa Sanitary District for the Collection of Solid Waste Within Certain Unincorporated
Areas the be Within the Jurisdiction of CCCSWA
COMMA MM ° COO& MUMS
CONNUM 7V DEVELOO PNCM7 DD EPARMEH7
ASSIGNNIENT OF PLEASANT HELL BAYSHORE DISPOSAL
FRANCHISE AGREEMENT FROM
CENTRAL CONTRA COSTA SANITARY DISTRICT
TO THE COUNTY OF CONTRA COSTA AND CONSENT TO
SAID ASSIGNMENT BY PLEASANT HH L BAYSHORE DISPOSAL, INC.
WHEREAS, Central Contra Costa Sanitary District (hereinafter "CCCSD") entered into
a franchise agreement dated April 1, 1986(hereinafter"PHBS Franchise Agreement")with Boyd
Olney, Jr., dba Pleasant Hill Bayshore Disposal (a sole proprietorship) (hereinafter "PHBS"),
granting PHBS the exclusive privilege to collect garbage within the CCCSD-PHBS Franchise
Area as defined in the Transitional Agreement, infra, for a term of ten (10) years, said PHBS
Franchise Agreement expiring March 31, 1996 and attached hereto as part of Exhibit "A."
(Exhibit "A" consists of the Transitional Agreement between County of Contra Costa and
Central Contra Costa Sanitary District for the Collection of Solid Waste Within Certain
Unincorporated Areas of North Concord/Pacheco/Clyde Solid Waste Franchise Area(hereinafter
"Transitional Agreement") and the PHBS Franchise Agreement); and
WHEREAS, Pleasant Hill Bayshore Disposal, Inc. (hereinafter "PHBS, Inc.) a wholly
owned subsidiary of Browning - Ferris Industries of California, Inc., is now operating as the
successor in interest to PHBS;
WHEREAS, as set forth in the Transitional Agreement, CCCSD and the County of
Contra Costa (hereinafter "County") have agreed to an assignment of the PHBS Franchise
Agreement from CCCSD to the .County; and
WHEREAS, the Board of Directors of CCCSD has, by Resolution No. 95-09$ effective
December 21 , 1995, authorized assignment of the PHBS Franchise Agreement from CCCSD
I f:\DMS\TCS.DIR\0125410.04
c
to the County, provided that certain conditions specified in the Transitional Agreement have been
met; and
WHEREAS, said conditions specified in the Transitional Agreement have been met; and
WHEREAS, PHBS benefits from the assignment of the PHBS Franchise Agreement from
CCCSD to the County; and
WHEREAS, PHBS consents to the.above assignment pursuant to the terms of the
Transitional Agreement and further agrees to waive and release any claim or other legal remedy
that it may have against CCCSD and County concerning any issues relating to exclusivity of the
Franchise Agreement and/or the jurisdictional boundaries of the franchise for all periods prior
to the effective date of assignment of the PHBS Franchise Agreement.
WHEREAS, the County has agreed to accept assignment of CCCSD's rights and
obligations in the PHBS Franchise Agreement pursuant to the terms of the Transitional
Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
Pursuant to the Transitional Agreement, CCCSD hereby assigns and transfers CCCSD's
rights and obligations as set forth in the PHBS Franchise Agreement to the County and its
assigns. Such assignment and transfer of the PHBS Franchise Agreement is not intended to
relieve the franchisee's successor in interest, PHBS, Inc., to the extent of any obligation set
forth in the said franchise agreement to indemnify CCCSD with respect to any occurrences
before the date of this Assignment Agreement and upon which any claim against CCCSD is
based.
2 F:\DMS\TCS.DIR\0125410.04
The County, in performance of its obligations as set forth in the Transitional Agreement,
consents to and hereby accepts assignment of the PHBS Franchise Agreement from CCCSD,
subject to the terms and conditions as set forth in the attached Transitional Agreement.
PHBS, Inc. consents herein to the assignment of the PHBS Franchise Agreement from
CCCSD to the County. PHBS, Inc. further agrees that it will not bring suit or seek any other
relief from CCCSD and/or the County concerning any issues relating to the exclusivity of the
PHBS Franchise Agreement and/or the jurisdictional boundaries of the franchise for all periods
prior to the effective date of assignment of the PHBS Franchise Agreement and does hereby
waive and release any such claims PHBS, Inc, may have against CCCSD, and/or the County.
The parties each respectively agree to the terms of this Assignment Agreement.
However, PHBS, Inc. does not waive any claim under the Franchise Agreement to seek a rate
increase if County improves additional franchise fees or takes additional action for which a rate
increase may be justified during the remaining term of the Franchise Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement
to be executed in triplicate by the respective duly authorized officers and representatives as of
the date last written below.
Dated: CENTRAL CONTRA COSTA SANITARY
DISTRI I'
By: Roger . Dol ,
General Manager
Dated: -- �' I b COUNTY OF CONTRA COSTA
• U
By: Valen
3 f:\DMS\TCS.DIR\0125410.04
Dated: PLEASA HIL B SHO DISPOSAL, INC.
By: `dN
APPRO ED AS TO FO
KE ON L. ALM,
General Counsel, Central Contra
Costa Sanitary District
vi T R J.W. Si't,1 ,tJ,Co s7ty Grun ,I
% Deouty._
LILLIAN T. FUJII
General Counsel, County of
Contra Costa
4 F:\DMS\TCS.DIR\0125410.04
EXHIBIT A
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
OF THE NORTH CONCORD/PACHECO/CLYDE
SOLID WASTE FRANCHISE AREA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection, transport and disposal of solid waste, and
franchising thereof within certain unincorporated areas within North Concord, Pacheco and
Clyde. The terms and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection, transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512 and as otherwise provided for in
Public Resources Code §§40000, et seq; and
F:\DMS\TCS.DIR\0118828.08
B. WHEREAS, CCCSD entered into a franchise agreement with Boyd Olney,Jr. dba
Pleasant Hill Bayshore Disposal, a sole proprietorship (hereinafter "PHBS")dated April 1, 1986
granting PHBS the exclusive franchise to collect garbage within the CCCSD-PHBS Franchise
Area, defined below, for a term of ten years expiring March 31, 1996 (hereinafter "PHBS
Franchise") attached hereto as Exhibit A; and
C. WHEREAS, Pleasant Hill Bayshore Disposal, Inc. (hereinafter PHBS, Inc.) a
wholly owned subsidiary of Browning-Ferris Industries of California, Inc. is now operating as
the successor in interest to PHBS; and
D. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
E. WHEREAS, Central Contra Costa Solid Waste Authority (hereinafter
"CCCSWA") is a joint powers authority and is formed pursuant to Government Code §§6500,
et seq. (currently comprised by member agencies of CCCSD and the City of Walnut Creek); and
F. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the First Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
G. WHEREAS, the County desires to have clear exclusive authority to franchise or
contract for the collection of solid waste within the CCCSD-PHBS Franchise Area; and
H. WHEREAS, the County, pursuant to California Government Code §25827, the
California Constitution and Public Resources Code §§40,000 eggs,, . has the authority to collect
2 F:\DMS\TCS.DIR\0118828.08
or contract for the collection, or both, of solid waste within the unincorporated areas of the
County; and
1. . WHEREAS, the County has requested by actions of the Board of Supervisors on
January 24, 1995 and thereafter to become a member of CCCSWA; and
J. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
K. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of the other
members of CCCSWA concerning collection, transfer and disposal of solid waste and certain
other AB 939 obligations; and
L. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal member of
CCCSWA, and provided further that the County delegates (in the same manner as the City of
Walnut Creek for its City area) to CCCSWA its authority to franchise solid waste collection,
transport and disposal in the unincorporated areas within -the jurisdictional boundaries of
CCCSWA set forth in the CCCSWA November, 1994 Franchising RFP, exclusive of the
unincorporated areas within the CCCSD-PHBS Franchise Area; and
M. WHEREAS, County previously indicated its intent to directly assume franchise
administration in unincorporated areas within CCCSD on and after the expiration of the CCCSD-
PHBS Franchise Agreement; and
3 F:\DMS\TCS.DIR\0118828.08
N. WHEREAS, CCCSD disputes County authority to assume franchise administration
in the unincorporated areas within CCCSD.
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
ARTICLE 1
Definitions
is 1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-PHBS Franchise Area
"CCCSD-PHBS Franchise Area" means and includes the unincorporated areas of the
County which are currently in the jurisdictional boundaries of CCCSD and which are
subject to the PHBS Franchise Agreement. The franchise area is further described by
the 600 scale maps as referenced in the franchise agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
4 F:\DMS\TCS.DIR\0118828.08
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
1.5 PHBS Franchise Agreement
"PHBS Franchise Agreement," for purposes herein, means the "Agreement for
Collection, Removal and Disposal of Garbage, Zone 3," dated April 1, 1986, between
PHBS and CCCSD.
1.6 RFP, RFP Process
"RFP" and "RFP Process" means the process by which CCCSWA solicited proposals for
solid waste handling and related AB 939 activities pursuant to a document dated
November, 1994, entitled Central Contra Costa Solid Waste Authority Request for
Prop sals for Integrated Solid Waste Management Services and the receipt and evaluation
process by CCCSWA of responses to the request for proposals.
1.7 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time, including
green waste and recyclables. (The term "garbage" is the defined term used within the
PHBS Franchise Agreement, which term is defined therein at section 1(e) and is
synonymous with the term "solid waste" within this agreement.)
5 F:\DMS\TCS.DIR\0118828.08
ARTICLE 2
Obligations of County
21
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this agreement.
22
Except as provided herein below, as between the County and CCCSD, the County shall
be responsible to the full extent allowed by law for all solid waste management of the
unincorporated areas of the CCCSD-PHBS Franchise Area as of the effective date of this
agreement. County shall accept the assignment of the PHBS Franchise Agreement from
CCCSD by the date specified in section 3.1.
2.3
Upon the expiration of the current unextended term of the PHBS Franchise Agreement,
as between the County and CCCSD, the County shall be responsible, to the full extent
allowed by law, for administration of all AB 939 activities including diversion and
recycling within the existing CCCSD-PHBS Franchise Area. As of the effective date of
this agreement, the County shall assume any and all responsibilities for AB 939 activities,
except for those specifically reserved in section 3.2 to CCCSD for the remainder of the
PHBS Franchise Agreement term.
6 F:\DMS\TCS.DIR\0118828.08
ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall file a resolution assigning the PHBS Franchise Agreement for the
remainder of its term and thereafter refraining from exercising its franchising authority
within the CCCSD-PHBS Franchise Area so long as the County exercises its franchising
authority within that area. This assignment and delegation and/or agreement to refrain
from further exercise of authority to franchise shall be effective on October 1, 1995;
provided that the conditions precedent in Article 8, section 8.1 have been satisfied. If
said conditions precedent have not been so satisfied, this agreement and the delegation
and/or agreement to refrain from further exercise of authority to franchise shall not be
effective until said conditions precedent have been met. The District agrees that once
the County joins the CCCSWA and the new franchise agreements with Browning Ferris
Industries and Waste Management begin, the District will not challenge the County's
right to franchise solid waste in unincorporated areas.
3.2
CCCSD shall continue to administer those AB 939 diversion and recycling activities
currently being undertaken pursuant to the PHBS Franchise Agreement and otherwise
currently being undertaken by CCCSD, or on its behalf within the CCCSD-PHBS
Franchise Area until March 31, 1996. CCCSD, notwithstanding the assignment of the
franchise agreement to County, shall continue to provide this service for the balance of
7 f:\DMS\TCS.DIR\0118828.08
the franchise term, for programs which have already been initiated, such as the home
composting workshops, and current recycling promotion.
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
PHBS Franchise Agreement as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-PHBS Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-PHBS Franchise Area shall not be subject to the jurisdiction of the
CCCSWA and it is not intended that this area be included within the CCCSWA
jurisdictional boundaries, nor is it included in the 1994-1995 CCCSWA collection,
transport and disposal franchise RFP process.
4.2
County shall, in good faith, participate as a member of CCCSWA in the RFP process,
including the execution (along with the City of Walnut Creek) of the franchise
agreements providing for solid waste services within the CCCSWA jurisdiction
contemplated by the RFP; provided that the CCCSWA Board of Directors determines
8 f:\DMS\TCS.DIR\0118828.08
that such solid waste franchise agreements are acceptable and the CCCSWA Board takes
the actions appropriate for entering into such agreements.
ARTICLE 5
Franchise Fees
5.1
CCCSD has received all franchise fee payments pursuant to the PHBS Franchise
Agreement for the remainder of the current term expiring in March 31, 1996, which
franchise agreement shall not be extended. Such fees have already been allocated by
CCCSD to programs for carrying out AB 939 activities within the CCCSD-PHBS
Franchise Area through the remaining term of the PHBS Franchise Agreement. County
shall receive no payment of said previously collected franchise fees; however, nor shall
County be required to pay any membership fee for participation in CCCSWA for the
remainder of the term of the PHBS Franchise Agreement. Nothing in this agreement is
intended to limit County from imposing additional franchise fees or taking any other
action in administration of the PHBS Franchise Agreement during its remaining term
following the effective date of assignment of said franchise to the County.
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical, Inc., US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
9 F:\DMS\TCS.DIR\0118828.08
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-PHBS Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base of the
existing CCCSD-PHBS Franchise Area, notwithstanding the assignment/transfer of the
franchise authority to the County. The proportionate share of responsibility for the
constituents/customers in the CCCSD-PHBS Franchise Area shall be based on the waste
derived historically from the wasteshed area. By entering this agreement, the County is
not assuming any responsibility or liability for the defense of the Acme Lawsuit for this
wasteshed area.
6.2
The County as the future rate setting entity, agrees that the proportionate share of any
liability or settlement costs (including a proportionate share of net legal costs and
expenses incurred after the termination of the Franchise Agreement) shall be borne by
the customer/constituent base of the CCCSD-PHBS Franchise Area, and amounts
sufficient to pay for the net proportionate liability, costs and expenses, if any, after
deducting all insurance and contribution proceeds allocable to this wasteshed, shall be
provided and collected to the fullest extent allowed by law as a pass-through in the
collector franchise rates for the area, whether the liability and/or settlement costs for this
wasteshed be directly imposed on CCCSD and/or the County in the Acme Lawsuit. If
10 F:\DHS\TCS.D1R\0118828.08
deemed appropriate, the County may (at its discretion) collect such proceeds as charges.
or fees imposed at any County franchised landfill and/or transfer station facility receiving
solid waste from the PHBS Franchise Area.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively,
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current PHBS Franchise Agreement or arising from other
solid waste administration activities within the CCCSD-PHBS Franchise Area as a result
of occurrences during such term, shall be the responsibility of CCCSD with respect to
occurrences prior to the effective date of assignment of the PHBS Franchise Agreement,
as set forth in section 3.1. As between County and CCCSD, County shall be responsible
for any liability arising as a result of occurrences after said date of assignment of the
PHBS Franchise Agreement and during County franchise administration. In no event is
County, by entering this agreement, assuming any legal liability for the said wasteshed
area for any period prior to the said effective date of assignment of the PHBS Franchise
Agreement except as specifically set forth above.
11 _ F:\DMS\TCS.DIR\0118828.08
ARTICLE 7
In emni
71
CCCSD shall indemnify,defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 arising at any time
from occurrences prior to the effective date of the assignment the current PHBS franchise
agreement. The liabilities, damages and expenses, as set forth herein, arising from the
Acme Lawsuit shall be excepted from this indemnity and handled as set forth in
paragraphs 6.1 through 6.3, inclusive.
7.2
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above arising from
occurrences after the effective date of the assignment of the current PHBS Franchise
Agreement.
12 F:\DMS\TCS.DIR\0118828.08
ARTICLE 8
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this agreement becoming
legally effective (in addition to the proper execution of this agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall in the same manner
as the City of Walnut Creek take such legal action as may be required to delegate the
County's solid waste collection, transport and disposal franchise authority for the
unincorporated areas within the jurisdictional boundaries of the CCCSWA (as such areas
are further described in the CCCSWA 1994-1995 RFP documents and the map attached
hereto as Exhibit B) to the CCCSWA to enable the CCCSWA to enter into regional
franchises pursuant to the CCCSWA 1994-1995 RFP process.
ARTICLE 9
Consent to Assi ng ment
9.1
This agreement is subject to CCCSD obtaining consent by PHBS, Inc. to the assignment
of the franchise agreement from CCCSD to the County, said written consent to be
acceptable to and approved by CCCSD and the County. Said consent shall include a
provision from PHBS, Inc. that PHBS, Inc. will not bring suit or seek any other relief
from CCCSD concerning any issues relating to the exclusivity of the franchise agreement
13 F:\DMS\TCS.D1R\0118828.08
and/or the jurisdictional boundaries of the franchise for all periods prior to the effective
date of assignment of the PHBS franchise agreement. If this consent is not obtained and
approved by CCCSD and the County by the expiration (March 31, 1996)of the CCCSD-
PHBS Franchise Agreement, nothing herein shall be construed to prevent the County's
exercising of whatever franchising authority it has in the Franchise Area.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
10.2 Parag_Wh headings
The article headings and paragraph headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
10.3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
10.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
14 F:\DMS\TCS.DIR\0118828.08
10.5 Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
10.6 Attorney's
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
10.7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
10.8 Future Franchising Authority
Except for the up-to-one-year extension period allowed by a separate County-CCCSD
Transitional Agreement for CCCSD administration of the current Waste Management
Collection and Recycling, Inc. (Valley Waste Management) franchise, it has been and
remains the County's position that on and after the expiration of the CCCSD-PHBS
Franchise Agreement, CCCSD has no franchise authority for the unincorporated areas
covered by this agreement to the extent the County thereafter franchises and/or regulates
15 F:\DMS\TCS.D1R\0118828.08
(e.g., delegates, etc.) for said areas. Nothing herein shall be construed as a waiver or
modification of past County actions or its position in this regard, except for the said up-
to-one-year extension period. It is understood and recognized that CCCSD does not
agree with this County position.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of
the date last written below.
Dated: , 1995 C O A ARY DISTRICT
BY: '
Roger Dolan, neralanager
Dated: g-2 , 1995 COUNTY OF CONTRA OSTA
BY:
APPROVED AS TO FORM: `, J
Kenton L. Alm, e . ounsel
Central Contra Costa Sanitary District
ictor J. estman, County Counsel
County of Contra Costa
16 f:\DMS\TCS.D I R\0118828.08
7�
1 -
AGREEMENT FOR COLLECTION, REMOVAL
AND DISPOSAL OF GARBAGE
ZONE_ 3
LJ U�DD
is �• \=� r
TABLE OF CONTENTS
Section Page
1. Definitions 1
2. Exclusive Privilege 3
3. Intent to Regulate All Garbage Collection, 3
Removal or Disposal
4. Exceptions to Exclusive Privilege 3
5. Right to Sell Valuable Commodity 4
6. Rates 4
7. Duty of Contractor to Maintain Records-- 4
Right of District to Examine Contractors Records
8. Applications by Contractor for Rate Increase 6
9. Operation By Contractor 6
10. Compliance with Federal, State and Local Ordinances 6
11. Limitation of Time on Collection 7
12. District May Require Efficiencies in Operation 7
13. Salvage 7
14. Faithful Performance Bond 7
15. Insurance 8
16. Legal Liability 8
17. Attorneys' Fees 9
18. Miscellaneous Obligations of Contractor 9
19. Fee for Exclusive Privilege 9
20. Billing 10
21. Assignability of Agreement 10
22. Involuntary Assignment 11
23. Notice Provisions 11
24. Recycling 11
25. Waste to Energy Program 12
26. Hazardous Waste 13
27. Disposal of Garbage 13
i
Section Pam
28. Annexation and Change of Zone Boundaries 14
29. Takeover of Franchise Rights by Other Public 15
Entity
30. Affiliated Entities 15
31. Breach and Termination 16
32. Emergency 17
33. District Code 18
34. Term of the Agreement 18
35. Contest of Agreement's Term by the Parties 19
36. Severability 19
37. Terms of Agreement Bargained For 19
38. This Agreement Shall Supersede Prior Agreements 19
{
AGREEMENT FOR COLLECTION, REMOVAL
AND DISPOSAL OF GARAGE
ZONE 3
This Agreement made and entered into this 1st day of April, 1986, by
and between the District and the Contractor,
WHEREAS the District and Contractor have entered into a Second
Amended Agreement for Collection, Removal and Disposal of Garbage dated
the 1st day of July, 1976, (hereinafter referred to as "said Agreement")
granting to Contractor the exclusive privilege to collect, remove and
dispose of garbage in the Zone until November 30, 1986; and
WHEREAS, said Agreement provides that it may be extended on November
30, 1986 at the option of the Contractor, unless at least two years prior
to the termination of said Agreement the District has notified the
Contractor in writing that it does not desire said Agreement to be
extended for an additional period; and
WHEREAS, the Contractor exercised its option to extend said
Agreement; and
( WHEREAS, the District has notified the Contractor that it does not
desire said Agreement to be extended under the same terms and conditions.
NOW, THEREFORE, in consideration of the covenants and agreements of
the parties hereto and the payment of certain fees as hereinafter set
forth, it is mutually covenanted and agreed as follows:
1. DEFINITIONS:
As used herein, the following terms shall have the meanings set
forth below:
(a) "Agreement": This Agreement for the collection, removal,
recycling and disposal of garbage by and between the District and the
Contractor entered into as of the date first written above.
(b) "Contractor": Boyd M. Olney, Jr. , dba Pleasant Hill Bay
Shore Disposal .
(c) "Customers": Those who have contracted with the
Contractor for the collection, removal, recycling or disposal of garbage
as provided herein, or who may be required to accept and pay for said
service by local ordinance.
(d) "District": The Central Contra Costa Sanitary District, a
public corporation.
-1-
(e) "Garbage":
(1) animal, fruit and vegetable refuse;
(2) offal ;
(3) leaves and cuttings, trimmings from trees, shrubs and
grass;
(4) inorganic refuse and rubbish;
(5) anything thrown away as worthless; provided, however,
that garbage shall not be defined as or include Hazardous Waste, Septage
or Industrial Waste.
(f) "Hazardous Waste": A waste, or combination of wastes,
which because of its quantity, concentration, or physical , chemical, or
Infectious characteristics may either:
(1) cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or incapacitating
reversible, illness; or
(2) pose a substantial present or potential hazard to
human health or environment when improperly treated, stored, transported,
or disposed of, or otherwise managed.
( This definition will include, but not be limited to, hazardous
waste as defined by the State of California and its agencies, or the
United States or its agencies.
(g) "Industrial Waste": Non-sewered liquid waste and solid
waste produced as by-products of industrial processes, or other refuse
produced or accumulated as a result of industrial processes, including
waste produced by the District and other public entities as a result of
treatment or other processes undertaken in providing public utility
services.
(h) "Septage": Non-sewered liquid or semi-liquid waste which
may be trucked to the District or other treatment facility for disposal,
to include, but not limited to, waste from residential septic tanks,
commercial grease cleanouts, and industrial waste holding facilities.
(i) "Waste stream": The garbage to be collected under this
Agreement from the time of the collection by the Contractor to the
disposal of same by the Contractor.
(J) "Zone": The geographic area generally described in
Exhibit A to this Agreement, which exhibit is attached hereto and
incorporated herein by reference, and more particularly as set forth in
the six hundred (600) scale maps maintained and available for inspection
at the office of the Secretary of the District, excepting therefrom any
l geographic area which is within the boundaries of another Jurisdiction,
including any military base, which is exercising its authority to
-2-
4-1
regulate garbage collection. Said six hundred (600) scale maps shall
reflect changes of boundaries of the Zone in such a manner as to identify
each alteration to the Zone and the effective date thereof.
2. EXCLUSIVE PRIVILEGE
The District, by this Agreement, grants to the Contractor for the
term as set forth in paragraph 34 of this Agreement, unless terminated in
accordance with this Agreement, the exclusive privilege and duty to
collect, remove and dispose of all garbage as said term is defined in
this Agreement within the Zone. This exclusive privilege to collect,
remove, and dispose of garbage is only qualified as set forth in this
Agreement.
The Zone may be expanded or reduced in size (a) by mutual agreement
of the parties; or (b) as provided in paragraphs 28 and 29 of this
Agreement.
3. INTENT TO REGULATE ALL GARBAGE COLLECTION, REMOVAL OR DISPOSAL:
The parties hereto agree that the District currently has
Jurisdiction to regulate the collection, removal and disposal of all
garbage in the Zone. The parties further agree that by the terms of this
Agreement the District has exercised its Jurisdiction and is regulating
the collection, removal and disposal of all garbage in the Zone. This
Agreement does not regulate the collection, removal and disposal of
industrial waste, hazardous waste or septage.
Whether a particular garbage collection activity is regulated by
this Agreement or not, is within the sole determination of the District.
If there is any question as to whether the garbage collection activity is
regulated or unregulated, it shall be the responsibility of the
Contractor to inquire of the District and thereafter provide such
information as the District may require to enable the District to provide
Contractor with a formal written opinion as to whether the garbage
collection activity is regulated or unregulated.
4. EXCEPTIONS TO EXCLUSIVE PRIVILEGE:
The exclusive privilege granted by this Agreement shall not apply
if:
(a) The person or entity generating garbage personally
collects, removes and disposes of such in a clean and sanitary manner in
conformance with all applicable laws and regulations, or
(b) The person or entity generating inorganic refuse or
rubbish contacts the Contractor to arrange for the collection, removal
and disposal of such and the Contractor declines to do so or is unable to
do so in a.timely manner, or
(c) The person generating the garbage contracts with another
to remove and dispose of (1) inorganic refuse or rubbish, or (ii) leaves,
cuttings, trimmings from trees, shrubs or grass by truck or other
-3-
vehicular means, when such removal is incidental to other contract work
being performed.
Nothing in this paragraph shall be construed to eliminate or qualify
the exclusive privilege of the Contractor to provide drop boxes and/or
bulk collection containers for collection of garbage within the Zone.
5. RIGHT TO SELL VALUABLE COMMODITY:
This Agreement is not intended to and does not affect or limit the
right of any person to sell any valuable commodity to the Contractor or
to any other person lawfully doing business within the Zone at prices
agreed upon by the parties to such transaction, provided that the
valuable commodity is separated at the source by the generator and that
the person purchasing the valuable commodity does not collect and dispose
of other garbage.
6. RATES:
Contractor shall perform the responsibilities and duties herein
agreed in the Zone in accordance with and in consideration of the
reasonable rates fixed by the District from time to time. The statement
that the actions in paragraphs 12, 24, 25, and 27 may be directed "at no
cost to the District" shall not be construed to mean that the Contractor
is prohibited, subject to the District's approval, from passing on its
costs of taking those actions to the Customers. It is the intent of the
parties that the rates fixed shall be in conformity with applicable law.
7. DUTY OF CONTRACTOR TO MAINTAIN RECORDS -- RIGHT OF DISTRICT TO
EXAMINE CONTRACTOR'S RECORDS:
Contractor shall maintain a proper set of books and records in
accordance with generally accepted accounting principles, accurately
reflecting the business done by it under this Agreement.
Contractor shall further maintain records as to its total number of
customers, said records to detail the types of customers and such other
operating statistics in such manner and with such detail as the District
may require.
The Contractor shall, by March 31 of each year, submit to the
District an operating statement for Zone 3 for the most recent reporting
year, prepared on a compiled basis by a Certified Public Accountant which
will comply with the following requirements:
(a) A statement by the Certified Public Accountant that the
operating statement was prepared on a compiled basis, as defined in
American Institute of Certified Public Accountants' Statement on
Standards for Accounting and Review Services No. 1, will be affixed to
the operating statement.
(b) The operating statement will be based on revenue and expense
accounts which will be established to determine the results of such
operation as a separate division within the Contractor's single entity.
-4-
(c) The operating statement will present revenues by category of
regulated service, and expenses will be reported in accordance with the
formats developed in the Price Waterhouse report dated February 7, 1983.
(d) Customary footnote disclosure should be provided with the
statement of operations, and should include an explanation of the
allocation bases used for all expense accounts.
In the event the Contractor is required by another public entity or
regulator to provide audited financial statements, the Contractor will
transmit a copy of the audited financial statements to the District and
thereafter submit such audited financial statements to the District by
March 31 each year, in lieu of the compiled operating statement.
The Contractor shall further furnish to the District a report of its
total number of customers within the Zone by types of customers and such
other operating statistics in such manner and with such detail as the
District may request.
The District may, at its own expense, at any time during the term of
this Agreement, examine the books and records of the Contractor, or have
the books and records of the Contractor examined by a person appointed
for that purpose by the District. District shall give thirty (30) days
written notice to the Contractor in advance of such examination date.
The information required by this paragraph shall pertain to the
Contractor's operations in the Zone. Nothing contained herein shall
require the Contractor to provide the District with information
�. pertaining to the Contractor's operations which are not regulated by the
District; provided that the District's agent may examine the Contractor' s
books, records and financial statements pertaining to operations not
regulated by the District for the sole purpose of gathering information
necessary to allow the agent to ascertain and communicate to the District
whether income, expenses, assets and liabilities are reasonably and
consistently allocated among operations regulated by the District and
operations not regulated by the District. As used in this paragraph
"District Agent" shall mean an independent Certified Public Accountant,
as agreed upon by the parties, or, failing agreement, appointed by the
Presiding Judge of the Contra Costa County Superior Court.
Notwithstanding this requirement to use an independent Certified Public
Accountant as the, "District Agent," the District may use District
employees, or any other person designated by the District, to examine
records of the Contractor otherwise available to other public entities.
Information gained from such examination of records pertaining
to operations not regulated by the District shall be treated by the
District and its agents as confidential information. However, nothing in
this paragraph will prevent the District allowing public access to
District records as provided for under the California Government Code,
and in the event any dispute arises as to the public access to
information provided by the Contractor under the terms of this Agreement,
the District shall in its discretion provide public access to said
information according to law or tender the defense of any claims made
against the District concerning said information to the Contractor.
-5-
8. APPLICATIONS BY CONTRACTOR FOR RATE INCREASE:
Any and all requests for rate increases, excepting those provided
for under paragraphs 12, 24, 25, and 27 of this Agreement, may be made no
more frequently than on an annual basis. Any such request for rate
increase by the Contractor, excepting those provided for in paragraphs
12, 24, 25, and 27 of this Agreement, shall be submitted together with
the compiled operating statement required under paragraph 7 of this
Agreement by March 31 of that year. Approval of the rate increase, or
other action by the Board on the application, shall occur only after the
District has had sufficient time to review the application and financial
statement, and in no event will a rate increase take effect before July 1
of the year in question.
Rate increase applications submitted by Contractor will be prepared
using such formats, including such operating statistics as the District
may prescribe from time to time. Any rate increase application will be
accompanied by the compiled operating statement for the most recent
reporting year preceding the requested effective date of rate increase.
In the event the Contractor is required to make . changes in its
operation pursuant to the conditions set forth in paragraphs 12, 24, 25,
and 27 of this Agreement, the Contractor may petition the Board using the
format mentioned herein, at any time during the calendar year. The
District staff shall calendar the petition for rate increase within
( seventy-five (75) days of receipt of an extraordinary petition presented
pursuant to paragraphs 12, 24, 25, and 27 of this Agreement.
9. OPERATION BY CONTRACTOR:
Contractor shall furnish all necessary equipment for the operation
of refuse collection service in the Zone and shall maintain such
equipment in a sanitary condition at all times. Contractor shall furnish
all necessary labor in connection with the operation of a refuse
collection service in the Zone.
The Contractor, in performance hereof, shall use covered (by
tarpaulin or otherwise) water-tight bodied motor trucks with truck bodies
constructed of sufficient strength to withstand a fire within, without
endangering adjacent property. The trucks, drop boxes, bins, or similar
types of equipment shall be kept neat and clean and in good repair. The
Contractor shall paint its name, permit number and telephone number on
the side of each truck (in letters at least four (4) inches high) and
each drop box, bin' or similar type equipment owned or leased by the
Contractor.
10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL ORDINANCES:
The Contractor shall comply with all applicable ordinances and rules
and regulations that are now in effect or may be promulgated or amended
from time to time by the Government of the United States, the State of
l California, the County of Contra Costa, the District and any other agency
now authorized or which may be authorized in the future to regulate the
services to be performed herein regarding the collection, removal and
disposal of garbage.
-6-
t
11. LIMITATION ON TIME OF COLLECTION:
The Contractor shall make a systematic collection of garbage from
each place where collection is made in a manner that the person receiving
the service can predict the day on which collection will be made.
Contractor shall not collect garbage from an inhabited dwelling or
dwelling unit between the hours of 7 p.m. and 4 a.m.
12. DISTRICT MAY REQUIRE EFFICIENCIES IN OPERATION:
The District may from time to time at its discretion and at its
expense, examine the Contractor's operation in order to insure that the
Contractor is operating at a satisfactory level of efficiency.
The Contractor agrees to cooperate in any such examination and shall
provide for inspection to the District or its designated representatives,
at the Contractor's principal place of business, such information as the
District may require, including but not limited to, such things as
collection routes and equipment records.
In addition, the District may require the Contractor to evaluate
alternative methods of garbage collection for the purpose of improved
efficiencies and to develop and submit a plan to implement the
efficiencies within one hundred and eighty (180) days of notice to the
Contractor. The District can require the Contractor to implement the
efficiencies within one (1) year of approval of the Contractor's plan,
unless the Contractor can demonstrate that one (1) year is unreasonable.
Should the District commence such a program as outlined in this
paragraph, Contractor agrees to not only do those things specified
herein, but also to act at the direction of the District on other matters
that may be necessary for the success and efficiency of such a
project(s).
13. SALVAGE:
District shall be entitled to the right of salvage at the expense of
the District from the garbage collected pursuant to this Agreement, but
at its sole discretion may delegate this right to, or waive the same in
favor of, the Contractor. District has temporarily waived its right of
salvage and has delegated such to Contractor; and such waiver and
delegation shall continue until notice in writing by the District to the
contrary is given. In the event the District independently wishes to
exercise its right to salvage, the District shall give in writing to the
Contractor notice of its intent and said right shall commence and accrue
to the District ninety (90) days from the date of said notice. The
salvage rights set forth in this paragraph specifically are intended to,
refer to salvage operations once the garbage is in the waste stream.
This paragraph should not be read to be in conflict with the rights to
recycle set forth in paragraph 24.
14. FAITHFUL PERFORMANCE BOND: i
i
The Contractor shall submit to the District simultaneously with the
execution of this Agreement a corporate surety bond in the amount of
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S50,000.00. The bond shall be executed by a surety company licensed to
do business in the State of California and acceptable to the District.
The bond shall be approved by the District and shall be payable to the
District. The condition of the bond shall be that the Contractor will
faithfully perform the duties imposed by ordinance, this Agreement and
the rules and regulations of the District. Any action by the District to
proceed against the Bond shall not limit or affect the right of the
District to use other remedies available to the District under the
Agreement, or in courts of law or equity. Notwithstanding the foregoing,
in lieu of the corporate surety bond, Contractor may provide to District
a letter of credit or cash bond in a form satisfactory to the District.
15. INSURANCE:
The Contractor shall maintain and continue in force during the term
of this Agreement, public liability insurance, property damage insurance
and workers' compensation insurance in amounts as shall be annually set
by the General Manager-Chief Engineer after discussion with the
Contractor. The Contractor has the right within ten (10) days' notice of
the insurance coverage amounts, to appeal the decision of the General
Manager-Chief Engineer, to the Board of Directors.
Such insurance shall be obtained from a company or companies
licensed to do business in the State of California and acceptable to the
District. District shall be named as an additional insured on the public
liability and property damage policies and each policy, including
workers' compensation, shall contain a clause providing that the insurer
will not cancel or decrease the insurance coverage without first giving
thirty (30) days' notice in writing to the District. A certificate of
Insurance shall be provided to the District any time the Contractor
alters a policy or changes carriers. A copy of `the certificate for each
policy, or at the District's request, a copy of each policy shall be
provided to the District by March 31 of each year. Failure of the
Contractor to maintain insurance in the manner and amount stated herein
and as directed by the General Manager-Chief Engineer, subject to the
approval of the Board, will constitute a breach of this Agreement.
16. LEGAL LIABILITY:
All work and performance covered by this Agreement shall be at the
risk of the Contractor.
Contractor agrees to save, indemnify and keep harmless the
District, 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 here undertaken or out of the
operations conducted by the. Contractor, save and except claims or
litigation arising through the sole negligence or willful misconduct of
the District, and will make good to and reimburse District for any
expenditures, including reasonable attorneys' fees, that the District may
make by reason of such matters and, if requested by District shall defend
any suit at the sole cost and expense of Contractor.
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Upon request by the District, the Contractor shall appear for and
defend the District in any action which challenges the validity of this
Agreement or the procedure by which this Agreement was entered into, or
the validity of any District ordinance which authorizes District to enter
Into this Agreement. Defense of the District shall be provided by
counsel satisfactory to the District. All costs of litigation including
attorneys' fees, and, to the extent permitted by law, any money judgment
entered against District, its Board members, officers or employees or
agents, shall be borne by the Contractor. In each case the District
shall have the sole and final authority to determine whether such costs
and/or judgment be chargeable as an operating expense or chargeable
against Contractor's profits.
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 District ordinance which authorizes the District to
enter into this Agreement, then in such case the Contractor shall have no
cause of action for damages or any other relief against the District as a
result of such successful challenge.
17. ATTORNEYS' FEES:
In the event of litigation between the parties arising hereunder,
the prevailing party shall recover its reasonable costs of litigation,
including attorneys' fees and costs as determined by the Court.
18. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR:
The Contractor shall maintain an office with adequate telephone
service within the District, and shall keep the office open during usual
business hours for the transaction of business with its Customers and the
public.
No less than once every twenty-four (24) months, and each time the
Contractor requests a rate increase, the Contractor shall notify each
Customer with printed information setting forth the rates, days of
collections, Contractor's complaint procedures, and the amount and manner
of refuse to be collected. The Contractor shall consult with the General
Manager-Chief Engineer, or his designee, to determine the appropriate
manner of notifying each Customer.
The Contractor shall provide three additional all-purpose pickups
per year not to exceed two cubic yards per residential unit in the
residential areas of the Zone. The dates for said additional pickups may
be set by the Contractor, however it is the intent of this Agreement that
they shall be as evenly spaced throughout the year as is practicable and
that the Contractor will provide notice to the Customers of said pickup
dates.
19. FEE FOR EXCLUSIVE PRIVILEGE:
�. The Contractor shall pay to "the District for the privilege granted
by this Agreement an annual fee fixed by the District which is reasonably
calculated to reimburse the District for its direct costs in
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administering this Agreement, including, but not limited to, outside
professional fees incurred by the District, plus a reasonable allowance
for overhead of the District as said overhead relates to garbage
franchising; which sums shall be fixed by the District and paid annually
in advance by the contractors, in proportion to the number of customers
served by each franchised contractor.
Amounts due each year shall be paid in advance within thirty (30)
days after July 1 of each fiscal year following the effective date of
this Agreement or within thirty (30) days after the District gives notice
of the amount of the annual fee, whichever comes later.
The fee for the fiscal year beginning July 1, 1985, is hereby fixed
at $4,665, and has been paid. The last payment pursuant to this
paragraph shall be prorated from the beginning of the fiscal year in
which this Agreement ends to the date this Agreement ends.
20. BILLING:
The Contractor may bill its Customers in advance or in arrears.
Bills in advance shall be due and payable thirty (30) days after the
beginning of the billing period. The billing periods for advance billing
shall be at least quarterly unless the District approves a less frequent
billing. Contractor agrees not to discontinue service to a Customer
until a Customer's account billed in advance has been delinquent for a
period of at least sixty (60) days, and notice of the termination is
provided to the Customer thirty (30) days prior to the termination.
Where the Contractor bills in arrears, the bill shall be due and
payable upon presentation and the Contractor agrees not to terminate
service until the Customerts account billed in arrears has been
delinquent for thirty (30) days.
Full payment for debris boxes may be required by the Contractor
prior to delivery of debris box to Customer.
21. ASSIGNABILITY OF AGREEMENT:
The Contractor shall not sell, assign, or transfer this Agreement or
any part hereof, including probate, proceedings, to a person other than
David Olney, without the written consent of the District.
Neither this Agreement nor any part hereof, nor any obligation or
service to be performed hereunder shall be assigned or subcontracted
without written consent of District. The term assignment shall include
any dissolution, merger, consolidation or other reorganization of the
Contractor, which results in change of control of the Contractor, or the
sale or other transfer by probate proceeding or otherwise of a
controlling percentage of the Contractor's capital stock to a person not
a shareholder on the date of the execution of this Agreement. In the
event the Contractor herein attempts to assign or subcontract this
Agreement or any part hereof or any obligation hereunder, the District
shall , have the right to elect to terminate forthwith, without suit or
other proceeding.
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Qj
The District may, following a properly noticed public hearing,
assign or transfer this Agreement, or any part hereof, without the
consent of the Contractor to any legally authorized public entity,
including, but not limited to, the County of Contra Costa or any Joint
powers authority created pursuant to Chapter 5, Division 7, Title I of
the California Government Code.
22. INVOLUNTARY ASSIGNMENT:
No interest of Contractor in this Agreement shall be assignable by
operation of law. Each or any of the following acts should be considered
an involuntary assignment providing the District with the right to elect
to terminate the Agreement forthwith, without suit or other proceeding:
(1) If the Contractor is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors or institutes a proceeding under
the Bankruptcy Act in which the Contractor is the bankrupt,
(2) If Writ of Attachment or Execution is levied on this Agreement,
(3) If in any proceeding to which the Contractor is a party a
Receiver is appointed with authority to take possession of the
Contractor's property,
(4) In the event of a probate proceeding where the rights of the
( Contractor under the Agreement would pass to another individual or other
individuals.
23. NOTICE PROVISIONS:
Any notice required or permitted under this Agreement shall be in
writing and shall be deemed to have been given if delivered personally or
ten (10) days after posted by certified mail, return receipt requested,
addressed as appropriate, either to the Contractor at: 441 No. Buchanan
Circle, Pacheco, California 94553, or to the District at 5019 Imhoff
Place, Martinez, California 94553, Attention: General Manager-Chief
Engineer.
24. RECYCLING:
District is currently studying refuse recycling as a means to
conserve resources, energy, money and to further enhance the environment.
The parties hereto recognize that refuse recycling, use of waste or
garbage products and improvements in garbage collecting efficiencies are
changing and developing technologies. Notwithstanding anything in this
Agreement to the contrary, at any time during the term of this Agreement
the District may require the Contractor to prepare and submit a plan to
provide refuse recycling in the Zone. The Contractor shall provide such
a recycling plan within 180 days of receiving the written notice
requiring preparation of a recovery plan. The District shall review and
comment upon the proposed recycling plan within sixty (60) days. The
Contractor shall have thirty (30) days from receipt of District's
comments to modify the Contractor's proposed plan in order to make said
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• J
proposed plan acceptable to the District. If the plan is approved by the
District Board of Directors, the Contractor shall implement the plan
within ninety (90) days unless that is impracticable under the
circumstances. Implementation of a refuse recycling plan will be at no
cost to the District.
The District may require, as an element of a program to recycle
refuse among other things, that the Contractor undertake curbside or home
pickup of recyclable material and segregate the garbage into elements
suitable for recycling and elements not so suited. The District may
further require that the Contractor deliver the segregated recyclable
refuse to locations or sites selected by the District.
Contractor agrees to not only do those things specified herein, but
also to act at the direction of the District on other matters that may be
necessary for the success and efficiency of a recycling project. The
District shall give reasonable advance notice to Contractor of changes in
the Contractor's operations which may, in the District's discretion,
become necessary due to the implementation of a recycling program.
In the event the Contractor fails to submit or implement a plan in a
timely manner as set forth in this section of the Agreement, or fails to
reasonably act at the direction of District on matters relating to
recycling, any and all such failures will be treated as a breach of this
Agreement and the District shall have the right to elect to terminate
forthwith, without suit or other proceeding.
25. WASTE TO ENERGY PROGRAM:
The District may evaluate the feasibility of a waste to energy
project as a means to conserve resources, energy and further enhance the
environment. The parties hereto recognize the technologies in regard to
production of energy from waste refuse are changing and developing. The
District may, at any time during the term of this Agreement, undertake a
waste to energy project singularly or in conjunction with another entity.
In the event the District undertakes such a waste to energy project, or
determines that the waste stream under this Agreement should be diverted
to another entity's waste to energy facility, the District shall give
thirty-six (36) months' notice to the Contractor of its intent to
commence or participate in such a program. At the expiration of the
thirty-six (36) months, the Contractor shall implement the changes in the
Contractor's operations which may become necessary due to the waste to
energy project.
The District may require, as an element of the waste to energy
project, that the Contractor deliver the garbage collected under this
Agreement, or portion thereof, as directed by the District, to locations
or sites selected by the District for waste to energy production. The
Contractor agrees also to act at the direction of the District on other
matters that may be necessary for the success and efficiency of a waste
to energy project. In this regard, the District shall give reasonable
advance notice to the Contractor of changes in the Contractor's
operations which may, in the District's discretion, become necessary due
to the implementation of the waste to energy project.
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The Contractor shall have the right and duty to collect and dispose
of nonhazardous waste or refuse produced as a result of operations of a
District owned or controlled waste to energy facility, including, but not
limited to, ash and other solid noncombustible material . The Contractor
shall collect and dispose of a share of the refuse produced by the
facility and said share shall be in proportion to the Contractor's share
of the total garbage delivered to the facility.
In the event that District directs the Contractor to deliver the
garbage to a publicly-owned waste to energy facility, not controlled by
the District, the District will make reasonable effort to secure for the
Contractor the right to collect any waste or refuse produced, or at least
a proportional share thereof.
The District may, in its discretion, undertake a waste to energy
project in conjunction with a recycling program or other garbage program
as set forth in paragraphs 13 and 24 of this Agreement. Nothing in this
paragraph shall be read to be in conflict with the provisions set forth
in paragraphs 13 and 24.
26. HAZARDOUS WASTE:
The parties hereto recognize that federal, state and local agencies
with responsibility for the defining of hazardous waste and for
regulating the collection, hauling or disposing of such substances, are
continually providing new definitions, tests and regulations concerning
these substances. Under this Agreement, it is the Contractor's
responsibility to keep current with the regulations and tests on such
substances and to identify such substances and to comply with all
federal, state and local regulations concerning such substances.
Contractor agrees to provide to the District upon its request the
Contractor's program for identifying hazardous waste and complying with
all federal, state and local statutes and regulations dealing with
hazardous waste.
The Contractor shall make every reasonable effort to prohibit the
collection and the disposal of hazardous waste in any manner inconsistent
with applicable law.
27. DISPOSAL OF GARBAGE:
Throughout the term of the Agreement, unless District gives notice
as provided for herein, it shall be the Contractor's sole responsibility
and duty to dispose of the garbage and waste and other material collected
by virtue of this Agreement, including any extension granted by the
Board, in a safe manner in compliance with all federal, state and local
regulations.
(a) Prior to April 1, 1991, the Contractor must provide the
District with conclusive proof that: (1) the Contractor has ownership
of, or a legally binding right to use, a properly approved and permitted
disposal site(s); (2) that said disposal site(s) has sufficient capacity
available to the Contractor to provide for disposal of all garbage to be
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collected under this Agreement; (3) and that said site(s) provides an
economically satisfactory disposal alternative. Proof of each of these
conditions shall be provided in writing to the satisfaction of the
District Board of Directors.
In the event said conditions have not been met to the Board's
satisfaction by April 1, 1991, the District shall have the right to
declare a breach or default of said Agreement and may proceed, pursuant
to paragraph 31 of this Agreement, to terminate this Agreement.
Subject to the provisions set forth hereinafter in subsection (b),
the District, in its sole discretion, may direct the garbage collected
under this Agreement to be delivered to any site of A is choosing. This
shall include the right of the District to direct the disposal, at no
cost to the District, of all garbage collected by virtue of this
Agreement, to a transfer station or stations, disposal site or sites
selected by the District, including disposal sites that may be owned and
operated by the District, provided that the disposal of garbage atsuch
transfer station(s) or site(s) is authorized by law. Contractor agrees
that the District may charge the Contractor a reasonable fee for the
disposal of garbage collected by virtue of this Agreement, if such
garbage is disposed of at the site(s) owned by or controlled by the
District and said charge shall be passed on to the Customer by means of
rates fixed by the District.
t (b) District agrees in the -event that the Contractor becomes owner
of or interest holder in a privately owned disposal site, other than the
current ACME Landfill Corporation disposal site in Martinez, and
secondly, that the Contractor tenders to the District all rights and
legal authority to regulate rates and charges for use of such site by all
persons or entities, including but not limited to site inspections and
audits, the District will direct all garbage collected under this
Agreement to be delivered to said privately owned disposal site for the
term of the Agreement, including any extensions which may be granted.
The District may thereafter, in its discretion, assume the rate setting
authority or any portion thereof. This Agreement on the part of the
District is conditioned upon the privately owned disposal site being
properly approved and permitted by the necessary public boards and
entities. The District in all instances retains the right to direct the
garbage collected under this Agreement to a transfer station prior to the
delivery to a privately owned disposal site. Nothing in this subsection
shall be construed to be in conflict with or eliminate the rights and
obligations provided for in paragraphs 24 and 25.
28. ANNEXATION AND CHANGE OF ZONE BOUNDARIES:
The District agrees to give notice to the Contractor by April 1 of
the next calendar year of any geographic area which has been annexed to
or deannexed from the District during the preceding calendar year or
which has been included in, or excluded from, the Zone. Such notice
shall specifically describe the changed boundaries of the Zone. If such
t notice is given to the Contractor, all of the provisions of this
Agreement shall apply to the collection, removal, and disposal of garbage
within such changed boundaries of the Zone beginning on July 1 of the
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calendar year following the preceding calendar year during which such
annexation or deannexation occurred.'
The Contractor shall give notice to the District by April 1 of the
next calendar year of any geographic area in the Zone or immediately
contiguous to the Zone, in which the Contractor has commenced service
within the preceding year, notwithstanding whether the Contractor deems
that area to be regulated or unregulated.
The Contractor realizes that the District and Zone boundaries may be
altered by virtue of actions taken by the Contra Costa County Local
Agency Formation Commission (LAFCO). The Contractor agrees that should a
municipal corporation, which at the date of the signing of this Agreement
exercises its lawful authority to franchise garbage collection, lawfully
annex territory which is within the Zone, the District may make such
alterations to the Zone as the annexation necessitates. Should the
District boundaries be amended so as to change the boundaries of the
Zone, the Contractor agrees that it will abide by whatever changes in the
Zone which become necessary due to changes in the District boundaries
made by the Local Agency Formation Commission. The Contractor agrees
that the District Board of Directors may make such alterations to the
Zone as are necessitated by such Local Agency Formation Commission
actions and shall have no right or claim to damages or other relief
against the District for such alterations to the Zone. The District
shall provide notice to the Cont-actor of all petitions or resolutions
sent by the District to LAFCO for annexation or deannexations which may
directly affect the territories included in the Zone.
29. TAKEOVER OF FRANCHISE RIGHTS BY OTHER PUBLIC ENTITY:
In the event that the County, or a municipal corporation, which at
the date of the signing of this Agreement has boundaries within the Zone
which areas are franchised under this Agreement, takes action, after such
date of signing, to assume the powers and responsibilities of the
franchisor in relation to garbage collection and disposal in those areas
within the Zone, the rights of the respective parties in regard to this
Agreement shall be set forth in Health and Safety Code 4270 et seg. and
other applicable law of the State of California.
Notwithstanding any lawful action by another public entity to take
over the right to franchise solid waste handling, collection - and
disposal, the District shall retain the right at all times during the
term of this Agreement, including any extensions granted by the District
Board, to direct the disposition of. all garbage collected within the
Zone. ' Contractor agrees, notwithstanding any actions taken by another
public entity in regard to assuming the role of the solid waste
franchisor, to deliver the garbage collected under this Agreement to the
location or locations designated by the District during the term of this
Agreement, including any extensions granted by the District Board.
30. AFFILIATED ENTITIES%
The Contractor shall provide information necessary to satisfy the
District that the charges made by any affiliated entity are reasonable.
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"Affiliated entity" shall be defined, for purposes of this paragraph, as
any entity which provides products or services to the Contractor and in
which the Contractor owns a ten percent <10%> or greater interest. The
District shall have the right to inspect the financial records of any
affiliated entity in which the Contractor owns a majority interest. For
purposes of this paragraph the term "Contractor" shall include the
Contractor, if an individual, and all members of his or her immediate
family; or if a corporation, the controlling shareholder and the
controlling shareholder's immediate family members. For the purpose of
this paragraph, "Immediate Family" includes spouses, children, and
relatives of the first degree of sanguinity.
31. BREACH AND TERMINATION:
The General Manager-Chief Engineer of the District shall have
authority, subject to review by the Board of Directors of the District
upon appeal, to determine whether a breach of any provision of this
Agreement by the Contractor has occurred. Any waiver or breach shall not
be deemed to be a waiver of any subsequent breach or to be construed as
approval of a course of conduct. In the event that a breach occurs, the
District shall give the Contractor notice of the breach, in writing,
setting forth the breach or default. The Contractor shall have a
reasonable period to cure the noticed breach, said period not to exceed
sixty (60) days. In the event the breach or default is cured to the
satisfaction of the General Manager-Chief Engineer of the District within
the period of time allotted, the breach shall not be deemed a material
( breach. In the event that the General Manager-Chief Engineer determines
that the Contractor has failed to satisfactorily cure the breach or
default within the period of time allotted, the General Manager-Chief
Engineer may determine such breach or default to be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall provide an
adequate basis for the General Manager-Chief Engineer, in his discretion,
to declare any subsequent breach to be material, notwithstanding whether
or not that breach is ultimately cured by the Contractor.
If such a determination of material breach is made, the General
Manager-Chief Engineer's determination shall be automatically appealed to
the Board for final action. .
A material breach shall be cause for termination of this Agreement
by the Board of Directors of the District.
In.the event of a termination prior to the natural expiration of the
term of this Agreement, the District shall have the right to temporarily
assume the obligations of the Contractor and shall therefor have the
right to forthwith take possession of all trucks and other equipment of
the Contractor and exercise the Contractor's right to enter and use any
disposal facilities for the purpose of performing the services agreed to
be performed by the Contractor herein until such time as the District can
make other arrangements for the performance of said services. However,
t such temporary assumption of Contractor's obligations under the Agreement
shall not be continued by the District for a period exceeding twelve (12)
months from the date such operations are undertaken by the District.
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t IL
During any period in which District has temporarily assumed the
obligations of Contractor under this Agreement, District shall be
entitled to the gross revenue attributable to operations during such
period and shall pay therefrom only those costs and expenses applicable
or allocable to said period, including the reasonable rental value of the
trucks and equipment to be paid to the Contractor. The excess, if any,
of revenue over applicable or allocable costs and expenses during such
period shall be deposited with the District funds to the credit of the
operation and maintenance account. The loss, if any, during such period
shall be a charge against Contractor, and shall be paid to the District
by the Contractor upon demand. Final adjustment and allocation of gross
revenue, costs, and expenses to the period during which the District
temporarily assumed the obligations of Contractor shall be determined by
an audit by a Certified Public Accountant and prepared in report form
with his unqualified opinion annexed thereto.
District shall indemnify Contractor against and hold it harmless
from, 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 operations and
obligations of Contractor which District assumes pursuant to the
provisions of this paragraph 31, save and except claims or litigation
arising through the sole negligence or willful misconduct of Contractor
and will make good to and reimburse Contractor for any expenditures,
including reasonable attorneys' fees, that the Contractor may make by
reason of such matters and, if requested by Contractor, shall defend any
( suit at the sole cost and expense' of District.
Nothing in this Agreement shall prevent the District during any
period in which District temporarily assumes the obligations of the
Contractor under this Agreement, from employing persons who were employed
by the Contractor for the collection of garbage under this Agreement.
Upon the occurrence of said breach and the declaration of such by
the Board of Directors of the District, this Agreement and the franchise
granted thereunder shall be of no further force and effect, excepting
these provisions concerning District's right to temporarily assume the
Contractor's obligations and to use Contractor's facilities upon early
termination as provided herein. The District then shall be free to enter
into whatever other arrangements are deemed justified and necessary for
the collection, removal and disposal of garbage within the Zone.
Failure by the District to provide the Contractor with the exclusive
franchise to collect and dispose of garbage within the Zone, as defined
In this Agreement, and except as set forth in paragraph 32, shall
constitute a material breach of this Agreement which will allow the
Contractor, in its discretion, to terminate the Agreement and be relieved
of all obligations and duties hereunder. Notice of termination by the
Contractor must be provided to the District one (1) year prior to
cessation of the duties and responsibilities of the Contractor hereunder.
32. EMERGENCY:
Notwithstanding the Contractor's exclusive franchise rights set
forth in paragraph 31, in the event of an emergency due to natural
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disaster or labor strike which interrupts the collection of garbage by
the Contractor, the Board of Directors of the District shall have the
right to declare a temporary suspension of this Agreement for the
reasonable duration of the emergency and until such time as the District
determines that the Contractor is able to reassume all obligations under
this Agreement. Should Contractor fail to demonstrate to the
satisfaction of the Board of Directors of the District that required
services can be resumed by Contractor prior to the expiration of a six
(6) month period, this Agreement may be terminated at the direction of
the Board of Directors.
An emergency or a declaration terminating the Agreement may be
declared by a resolution adopted by a four-fifths <4/5> vote by the
District's Board of Directors.
33. DISTRICT CODE:
This Agreement is entered into under and by virtue of the authority
of and pursuant to Title 8 of the Code of the District and in accordance
with the provisions thereof, and any subsequent amendment thereto, which
are hereby incorporated in this Agreement by reference.
34. TERM OF THE AGREEMENT:
The term of this Agreement and the exclusive franchise granted
hereunder shall be for a period. of ten (10) years from April 1, 1986, to
March 31, 1996, subject to the provisions of paragraphs 27 and 31 of this
Agreement.
In the event that the three (3) conditions set forth in paragraph
27(a) have been met to the satisfaction of the Board by April 1, 1991,
and the further event that the Board thereafter determines that the
Contractor has provided a satisfactory level of service at rates
reasonable to the ratepayers, the Board may, in its discretion, extend
the term of this Agreement for a period not to exceed five (5) additional
years, or for a total term not to exceed fifteen (15) years.
If the Board wishes to take action concerning this option to extend,
such Board action shall be taken and notice given to the Contractor of
such action prior to April 1, 1994. The Board has the option to:
(a) Extend the franchise for a period up to five (5) years under
the terms of this Agreement, or;
(b) 'Extend the franchise for a period of up to five (5) years,
under the terms of this Agreement including any modifications thereof as
may be required in the discretion of the Board, or;
(c) Refuse to extend the term beyond March 31, 1996.
Failure of the Board to take action with regard to the extension of
term under this paragraph by April 1, 1994 shall constitute a rejection
by the District of the option to extend and the Agreement shall terminate
In due course on March 31, 1996.
-18-
All modifications of the Agreement which may become a condition of
an extension of the term shall be in writing and notice of such
modification shall be served upon the Contractor prior to April 18 1994.
The Contractor shall give notice to the District as to acceptance or
rejection of the extension under the terms offered within three (3)
months of the date of service of the notice from the Board. Failure of
the Contractor to give timely notice will constitute a rejection of the
offer to extend. ,
35. CONTEST OF AGREEMENT'S TERMS BY THE PARTIES:
In the event either party to this Agreement attempts to challenge
the validity of any portion of this Agreement, such action in attempting
to challenge the Agreement shall constitute a material breach of this
Agreement and the nonbreaching party shall have the right to elect to
terminate forthwith without suit or other proceeding.
This paragraph 35 shall not be construed to prevent either party
from seeking redress to the courts for the purposes of legal review of
administrative procedures in regard to rate setting or District actions
taken pursuant to this Agreement, or for the purpose of enforcing the
provisions contained in this Agreement.
36. SEVERABILITY:
In the event legal action is brought by a person or entity, other
than the parties to this Agreement, to challenge, invalidate, contest or
set aside any of the provisions of this Agreement, each and every term
and condition, and each and every section and paragraph is severable from
the remaining terms, conditions, sections, and paragraphs. The
invalidation of any term, condition, section or paragraph as a result of
a legal action, brought by a person or entity not a party to this
Agreement, shall not affect the validity or enforceability of the
remaining provisions. Each of said remaining provisions shall remain in
full force and effect.
37. TERMS OF AGREEMENT BARGAINED FOR:
All terms, conditions and obligations contained in this Agreement
have been bargained for and agreed upon by the parties in good faith.
Further* the parties have entered into this Agreement on the advice of
counsel.
38. THIS AGREEMENT SHALL SUPERSEDE PRIOR AGREEMENTS:
This Agreement shall supersede any and all agreements heretofore
entered into by the parties hereto.
i
-19-
J
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in duplicate by its duly authorized officers and
representatives as of the date first above written.
CENTRAL CONTRA COSTA SANITARY DISTRICT
By:
Its: President of the Board of Directors
By: L tL6.-/�ttratL/,�
Its: Seq",t ry of the District
Approved as t �",ohm:
,aAj:;j1 4Va:�l
t!!!i--1o
the 41,s ct
f
PLEASANT HILL BAY SHORE DISPOSAL
Its: bwr✓E/�
Approved as to form:
/0y
Counsel to pe Contractor ad
t
-20-
i
i
I
i
i
NORTH CONCORD/PACHECO/ CLYDE
SOLID WASTE
FRANCHISE AREA
SUISUN
�9y m
Cw= rr = v �.-.
i?:iyz» � is eoeo iw
4YDE
MARTINEZ « ; % CONCORD
PLEASANT d •
HILL °"tt°"
i
a o
\
ORINDA �" a, : '�\ yfALNUT
CREEK
LAFAYETTE
a
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\ I
+'° ��� ALAMO � w • BLACKHAWK
MORAGA eew •
q� °�DANVILLE
hw e
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e
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N °/
• z ls'
NIPS •
g
DtSCLkKR:This mop shows gorwalizd boundaries drown according b information
iprovided to CCCSD prior to the above date. Disvponaas should be resolved with the
g nsppropriab agency and wit to CCCSD to be indudd in the next edition of this mop.
I
i
RECEIVED
23 AUG 8 1995
CLERK BOARD OF SUPERVISORS
As between the County and CCCSD, the County shall S
allowed by law and except as delegated to CCCSWA for all solid waste management of
the unincorporated areas of the CCCSD-VWM Uninco=rated Franchise Area set forth
in this agreement beginning Mmh 1,
extensien f the GGGSD X15 M fi mne :9e-g the end of the VWM franchise term.
ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall delegate to the County and thereafter refrain from exercising its franchising
authority in the CCCSD-VWM Unincorporated Franchise Area so long as the County
exercises its franchising or equivalent authority (such as County's delegation to
CCCSWA) within that area. This delegation and/or agreement to refrain from further
exercise of authority to franchise shall be effective r!Effeh ' 1996, a on the date of
termination of the current franchise agreement with VWM, if extended, -whdeh extengie.,
provided that the conditions precedent in Article 8. section
8.1 have been satisfied. If said conditions precedent have not been so satisfied, this
aareement and the delegation and/or agreement to refrain from further exercise of
authority to franchise shall not be effective until said conditions precedent have been met.
The District agrees that once the County joins the CCCSWA and the new
ADDED 8/8/95 franchise .agreement with Browning Ferris Industries and Waste Management
begin, the District will not challenge the County's right to franchise
solid waste in unincorporated areas.
8 F:\DHS\TCS.DIR\0118669.06
r Ulu
e
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: July 24 , 1995
To: Kent Alm and Tom Sites, SELLAR, HAZARD, SNYDER,
KELLY, & FITZGERALD
From: Victor J. Westman, County CounselM.M. .
Re: "Transitional Agreements"
Attached are my proposed hand written revisions to pages 2,
3 , 5, 6, 7, 8 , 9, 10, 11, 12 , and 14 of your June 12, 1995 draft
for the CCCSD - VWM Franchise Area for your consideration. Similar
revisions are, of course, proposed for the North Concord/Pacheco/
Clyde June 12 , 1995 Transitional Agreement; except that all
references to "August 6, 1996" should be changed to "the expiration
of the . CCCSD - PHBS Franchise, " and see additional proposed
revisions to X9 . 1 on attached page 12 for this second agreement .
If possibly, we should meet later this week to discuss
these draft agreements . Depending on that meeting' s time and date,
I will attempt to determine if Val Alexeeff can also attend. At
this time, I can be available to meet Wednesday (7-26-95) from 3 : 30
to 5 : 00 p.m. or any time on Friday (7-28-95) except from 1 : 30 to
2 :30 p.m.
VJW:bmw
CC : Supervisor Gayle Bishop
Supervisor Jeff Smith
Val Alexeeff, GMEDA
Attachments
vjw-1:a:\tran-agr.me2
FILE URI I
r
/ — - DRAFT—June-12,-1995
C. WHEREAS, Waste Management Collection and Recycling, Inc., through its 1
Division, Valley Waste Management (hereinafter "VWM"), is the current franchisee under the
Valley Disposal Service, Inc. franchise agreement (hereinafter "VWM Franchise"); and
V/
D. WHEREAS, the County,pursuant to California Government Code §2582Ras the
authority to collect or contract for the collection, or both, of solid waste within the
unincorporated areas of the County; and
E. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
F. WHEREAS Central Contra Costa Solid Waste Authority(hereinafter"CCCSWA")
is a joint powers authority and is formed pursuant to Government Code §§6500, et seq.
(currently comprised of member agencies of CCCSD and the City of Walnut Creek; and
G. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
C,Max
V/ H. WHEREAS, the County desires to have *e exclusive authority to franchise or
contract for the collection of solid waste within the CCCSD-VWM Franchise Area;-and
- � � �� r
I. WHEREAS, the County, pursuant to California Government Code §25827�and
other authority found in §40000 et seq. of the California Public Resources Code, has the
2 F:\DMS\TCS.DIR\0118669.03
z
DRAFT- June 12, 1995
authority to collect or contract for the collection, or both of solid waste within the
unincorporated areas of the County; and
J. WHEREAS, the County has requested by action of the Board of Supervisors on
to become a member of CCCSWA; and
K. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
L. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of other members
of CCCSWA concerning collection, transfer and disposal of solid waste and certain other AB
939 obligations; and
M. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, providgJ that the County becomes a full and equal member of
� y
CCCSWA, and provided furtKer that the County * I`o CCCSWA its authority to franchise
solid waste collection, transport and disposal within the unincorporated areas within the
jurisdictional boundaries of the Authority as set forth in the CCCSWA 1994-1995 Franchising
RFP. V/
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
C F:\DMS\TCS.DIR\0118669.03
DRAFT- June 12, 1995
1.5 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code _
§40191 and regulations promulgated thereunder, as amended from time to time. (The
term "garbage" is the defined term used within the VWM Franchise, which term is
defined therein and is relatively synonymous with the use of the term "solid waste"
within this Agreement). ` Y`
ARTICLE 2 �
'w
Obligations of County
21
County agrees to apply for membership in, and become a full and equ4 signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously '
with the Effective Date of this Agreement.
2.2 `
Concurrent with the execution of this agreement, the County shall file a resolution with
respect to the CCCSD-VWM Franchise Area delegating its franchising authority as of
March 1, 1996 to the CCCSWA The County shall further execute any other reasonably
necessary documents for the purpose of enabling the/CCCS,WA/p undertal�e its role as
l�ej�a c P f A
the regional franchising authority If the current CCCSD franchise agreement with
VWM is extended for a period of time not to exceed one year, the effective date for the
5 F:\DMS\TCS.DIR\0118664.03
DRAFT-,lune 12, 1995
t.�
delegation of the franchise authority to CCCSWA by the County shall be extended by a
like period of time. l
2.3
County shall be responsiblifor all solid waste management of the unincorporated areas
of the CCCSD-VWM Franchise Area set forth in this agreement beginning March 1,
1996 or such later date resulting from the extension of the CCCSD-VWM franchise.
ARTICLE 3 .� ,t
-41
Obligations of CCCSD CY:
3_1 /
CCCSD shall delegate to the County and ther refrain from exercising its franchising
authority in the CCCSD-VWM Franchi Area so long as the County exercises its
franchising�authority within that ar This delegation and/or agreement to refrain from
further exercise of authority to franchise shall be effective March 1, 1996, or the date
of termination of the current franchise agreement with VWM if extended, which
extension may not exceed one year.
3.2
CCCSD shall be responsible for administration of the current VWM franchise agreement
for the remaining term of said agreement, including any extension thereof not exceeding
one year. In addition, CCCSD shall continue to administer all AB 939 diversion and
recycling activities currently being undertaken pursuant to the VWM franchise agreement
6 F:\DMS\7CS.DIR\0118669.03
DRAFT- June 12, 1995
and otherwise currently being undertaken by CCCSD, or on it behalf within the CCCSD-
VWM Franchise Area for the remaining term of said franchise, including any extension
thereof not to exceed one year.
3
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
VWM Franchise, as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-VWM Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-VWM Franchise Area shall be subject to the jurisdiction of the CCCSW ti'
4.2
Y
County and CCCSD shall; in good faith, participate as members of CCCSWA in the RFP
process, including the executio Vof the franchise agreements providing for solid waste
services within the CCCSWA jurisdictions contemplated by the RFP; provided that
CCCSWA Board of Directors determines that such solid waste franchise agreements are
7 F:\DMS\TCS.DIR\0118669.03
i -
DRAFT - June 12, 1995
acceptable and the CCCSWA Board takes the actions appropriate for entering into such
agreements.
4.3
During the period between the effective date of this agreement and the effective date of
a new franchise agreement covering the CCCSD-VWM Franchise Area entered into
pursuant to the ongoing CCCSWA RFP process, County shall be allowed full opportunity
to participate on staff and Board level, on all decisions with regard to processing the RFP
proposals and with regard to entering into appropriate franchise and disposal agreements.
4.4
lC&O ,.r-7 7-f ' � �/ Ijf
Q .
CCCSD and County agree that except for the authority delegated herein to CCCSWA
with respect to the provision of solid waste services, upon the termination of the VWM
Franchise, including any extension not to exceed one year thereof, County shall be
responsible for administration of all AB 939 activities including diversion and recycling
within the CCCSD-VWM Franchise Area.
ARTICLE 5
Franchise Fees
5.1
CCCSD has received all franchise fee payments pursuant to the VWM Franchise and
shall receive any additional payments under any extension thereof not to exceed one year.
County shall receive no portion of said franchise fees, however, County shall not be
8 F:\DMS\TCS.DIR\0118669.03
1
DRAFT - June 12, 1995
required to pay any membership fee for joining CCCSWA. The CCCSWA is funded
annually on a tonnage basis. The CCCSWA fees with respect to the CCCSD-VWM
Franchise Area have been paid to date, and will be paid by, or on behalf of, CCCSD
during the remaining term of the lVWM franchise agreement and extension thereof
' A
not to exceed one year. Thereafter,z for share of��
membership fees or costs due CCCSWA for the County areas within the CCCSWA
jurisdictional boundaries.
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical, Inc.. US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-VWM Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base in the
existing CCCSD-VWM Franchise Area, notwithstanding the assignment/transfer of the
9 F:\DMS\TCS.DIR\0118669.03
DRAFT- June 12, 1995
franchise authority to the County. The proportionate share of responsibility for the
customers in the exiss ng franchise area shall be based on the waste derived historically
from the area. J -�U
W�
The County as the future franchising authority, either directly or through the CCCSWA,
agrees that the proportionate share of any liability or settlement costs to be borne by the
customer/constituent base of the CCCSD-VWM Franchise Area, and amounts sufficient
h
to pay for the net proportionate liability, if any, after deducting all insurance and
contribution proceeds allocable to this wasteshed, shall be provid;as a pass-through in
�i4-X1se -res -err le
1/ the r whether the liability for this
wpa�steshed be directly,imposed on CCCSD and/or e County in the Acme Lawsuit.Z ,�
olln-f fv'-�4
663 ��ws i ��'� t4 tx�,v7,., ?'�re�A� ;S /�sM4177` ���l•'7`' �rc� �� .,�i�U��� ,�-�►e.� -rain hIV
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current VWM franchise agreement or any extension
10 F:\DMS\TCS.DIR\0118669.03
lee, RAFI-June 12 1995
thereof not to exceed one year, or.arising from other solid waste administration activities
within the CCCSD-VWM Franchise Area Burin such term, shall be the responsibility
7 g Po Y
of CCCSD with respect to occurrences prior to the effective date of termination of the
VWM franchise agreement.�County shall be responsible for any liability arising
f 4
i ii �nr rences after said date o ,terminati of e VWM Franchise.e '.� -
ARTICLE 7
Indemni
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any lil4lity arising from events specified in
prior to the effective date of the termination of the current VWM franchise agreement
or any extension thereof not to exceed one year. The liabilities, damages and expenses,
as set forth herein, arising from the Acme Lawsuit shall be excepted from this indemnity
and handled as set forth in paragraphs 6.1 through 6.3, inclusive.
7.2
11 F:\DMS\TCS_DIR\0118669.03
DRAFT-dune 12, 1995
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties,, forfeitures, or
fines as a result of any liability arising frodt events as specified in 6.4 24v)eoeo g
after the effective date of the termination of the current VWM Franchise or any extension
thereof not to exceed one yea
ARTICLE 8
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of this Agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
f seated as full members of the CCCSWA Board; and (2) Cotvty shalT' al a such legal
action as may be required to delegate the County's solid waste collection, transport and
disposal franchise authority for the unincorporated areas within the jurisdictional
boundaries of the CCCSWA (as such areas are further described in the CCCSWA 1994-
1995 RFP documents and map therefrom attached as Exhibit B) to the CCCSWA to
12 F:\DMS\TCS.DIR\0118669.03
DRAFT-.lune 12, 1995
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
96 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
9.7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7'shall-survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
V WA-1
�• ,e.P[h,r„ .�Gy! /i�-�s� c�c•oL-�s.fL `�P'•. !
6
• /�/ .eta- %��'�'�/e"�'3� (�� ,,�'//
� f:CDMS\TCS-DIR�01189-.03------
14VY -- -
r =' l
DRAFT-June 12, 1995
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall take such legal
action as may be required to delegate the County's solid waste collection, transport and
disposal franchise authority for the unincorporated areas within the jurisdictional
boundaries of the CCCSWA (as such areas are further described in the CCCSWA 1994-
1995 RFP documents and map therefrom attached as Exhibit B) to the CCCSWA to
enable the CCCSWA to enter into regional franchises pursuant to the CCCSWA 1994-
1995 RFP process.
ARTICLE 9
Consent to Assi nment
J
9.1
This agreement is subject to CCCSD obtaining consent by PHBS, Inc. to the assignment
kliz�ftl
of t e1Vfranchise agre ment from CCCSD to the County, said consent to be immfiwo
Amer? 41�. G'�u t
acceptable to.CCCSW Said consent shall include a provision from PHBS, Inc. that
PHBS, Inc. will not bring suit or seek any other relief from CCCSD concerning any
issues relating to the exclusivity of the franchise agreement and/or the jurisdictional
boundaries of the franchise for all periods prior to the effective date of assignment of the
PHBS franchise agreement. j-� ,5 wHsu A4.;C
P14B SI) A/
gk� ej1pj4rUa 4- ) PWS'
I 1.2 F:\DMS\TCS.DIR\0118828.03
DRAFT-.dune 12, 1995
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
TO BE WITHIN THE JURISDICTION OF CCCSWA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection of garbage, and franchising thereof. The terms
and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection,transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512, and as otherwise provided in for
in Public Resources Code §40000, et seq; and
B. WHEREAS, CCCSD entered into a franchise agreement with Valley Disposal
Service, Inc. granting Valley Disposal Service, Inc. the exclusive franchise to collect garbage
within the CCCSD-VWM Franchise Area, defined below, for a term of ten years expiring
February 28, 1996; and
F:\DMS\TCS.DIR\0118669.03
. r
DRAFT -June 12, 1995
C. WHEREAS, Waste Management Collection and Recycling, Inc., through its
Division, Valley Waste Management (hereinafter "VWM"), is the current franchisee under the
Valley Disposal Service, Inc. franchise agreement (hereinafter "VWM Franchise"); and
D. WHEREAS, the County,pursuant to California Government Code§25827 has the
authority to collect or contract for the collection, or both, of solid waste within the
unincorporated areas of the County; and
E. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
F. WHEREAS Central Contra Costa Solid Waste Authority(hereinafter"CCCSWA")
is a joint powers authority and is formed pursuant to Government Code §§6500, et seq.
(currently comprised of member agencies of CCCSD and the City of Walnut Creek; and
G. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
H. WHEREAS, the County desires to have the exclusive authority to franchise or
contract for the collection of solid waste within the CCCSD-VWM Franchise Area; and
I. WHEREAS, the County, pursuant to California Government Code §25827 and
other authority found in §40000 et seq. of the California Public Resources Code, has the
2 F:\DMS\TCS.DIR\0118669.03
DRAFT-lune 12, 1995
authority to collect or contract for the collection, or both of solid waste within the
unincorporated areas of the County; and
1. WHEREAS, the County has requested by action of the Board of Supervisors on
to become a member of CCCSWA; and
K. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
L. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of other members
of CCCSWA concerning collection, transfer and disposal of solid waste and certain other AB
939 obligations; and
M. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal member of
CCCSWA, and provided further that the County delegate to CCCSWA its authority to franchise
solid waste collection, transport and disposal within the unincorporated areas within the
jurisdictional boundaries of the Authority as set forth in the CCCSWA 1994-1995 Franchising
RFP.
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
3 F:\DMS\TCS.DIR\0118669.03
DRAFT -June 12, 1995
ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-VWM Franchise Area
"CCCSD-VWM Franchise Area" means and includes the unincorporated areas of the
County which are currently in the jurisdictional boundaries of CCCSD and which are
subject to the VWM Franchise. The franchise area is further described by the 600 scale
maps as referenced in the franchise agreement,
1.3 Effective Date
"Effective Date" means the first date upon which this Agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
4 F:\DMS\TCS.DIR\0118669.03
DRAFT- June 12, 1995
1.5 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time. (The
term "garbage" is the defined term used within the VWM Franchise, which term is
defined therein and is relatively synonymous with the use of the term "solid waste"
within this Agreement).
ARTICLE 2
Obligations of County
2�1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this Agreement.
2.2
Concurrent with the execution of this agreement, the County shall file a resolution with
respect to the CCCSD-VWM Franchise Area delegating its franchising authority as of
March 1, 1996 to the CCCSWA. The County shall further execute any other reasonably
necessary documents for the purpose of enabling the CCCSWA to undertake its role as
the regional franchising authority. If the current CCCSD franchise agreement with
VWM is extended for a period of time not to exceed one year, the effective date for the
5 F:\DMS\TCS.DIR\0118669.03
DRAFT-,dune 12, 1995
delegation of the franchise authority to CCCSWA by the County shall be extended by a
like period of time.
2.3
County shall be responsible for all solid waste management of the unincorporated areas
of the CCCSD-VWM Franchise Area set forth in this agreement beginning March 1,
1996 or such later date resulting from the extension of the CCCSD-VWM franchise.
ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall delegate to the County and thereafter refrain from exercising its franchising
authority in the CCCSD-VWM Franchise Area so long as the County exercises its
franchising authority within that area. This delegation and/or agreement to refrain from
further exercise of authority to franchise shall be effective March 1, 1996, or the date
of termination of the current franchise agreement with VWM if extended, which
extension may not exceed one year.
3.2
CCCSD shall be responsible for administration of the current VWM franchise agreement
for the remaining term of said agreement, including any extension thereof not exceeding
one year. In addition, CCCSD shall continue to administer all AB 939 diversion and
recycling activities currently being undertaken pursuant to the VWM franchise agreement
6 F:\DMS\TCS.DIR\0118669.03
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and otherwise currently being undertaken by CCCSD, or on it behalf within the CCCSD-
VWM Franchise Area for the remaining term of said franchise, including any extension
thereof not to exceed one year.
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
VWM Franchise, as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-VWM Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-VWM Franchise Area shall be subject to the jurisdiction of the CCCSWA.
4.2
County and CCCSD shall; in good faith,participate as members of CCCSWA in the RFP
process, including the execution of the franchise agreements providing for solid waste
services within the CCCSWA jurisdictions contemplated by the RFP; provided that
CCCSWA Board of Directors determines that such solid waste franchise agreements are
7 F:\DMS\TCS.DIR\0118669.03
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acceptable and the CCCSWA Board takes the actions appropriate for entering into such
agreements.
4.3
During the period between the effective date of this agreement and the effective date of
a new franchise agreement covering the CCCSD-VWM Franchise Area entered into
pursuant to the ongoing CCCSWA RFP process, County shall be allowed full opportunity
to participate on staff and Board level, on all decisions with regard to processing the RFP
proposals and with regard to entering into appropriate franchise and disposal agreements.
4.4
CCCSD and County agree that except for the authority delegated herein to CCCSWA
with respect to the provision of solid waste services, upon the termination of the VWM
Franchise, including any extension not to exceed one year thereof, County shall be
responsible for administration of all AB 939 activities including diversion and recycling
within the CCCSD-VWM Franchise Area.
ARTICLE 5
Franchise Fees
5.1
CCCSD has received all franchise fee payments pursuant to the VWM Franchise and
shall receive any additional payments under any extension thereof not to exceed one year.
County shall receive no portion of said franchise fees, however, County shall not be
8 F:\DMS\TCS.DIR\0118669.03
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required to pay any membership fee for joining CCCSWA. The CCCSWA is funded
annually on a tonnage basis. The CCCSWA fees with respect to the CCCSD-VWM
Franchise Area have been paid to date, and will be paid by, or on behalf of, CCCSD
during the remaining term of the VWM franchise agreement and any extension thereof
not to exceed one year. Thereafter, County shall be responsible for its share of
membership fees or costs due CCCSWA for the County areas within the CCCSWA
jurisdictional boundaries.
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical. Inc., US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-VWM Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base in the
existing CCCSD-VWM Franchise Area, notwithstanding the assignment/transfer of the
9 F:\DNS\TCS.DIR\0118664.03
DRAFT-June 12, 1995
franchise authority to the County. The proportionate share of responsibility for the
customers in the existing franchise area shall be based on the waste derived historically
from the watershed area.
6.2
The County as the future franchising authority, either directly or through the CCCSWA,
agrees that the proportionate share of any liability or settlement costs to be borne by the
customer/constituent base of the CCCSD-VWM Franchise Area, and amounts sufficient
to pay for the net proportionate liability, if any, after deducting all insurance and
contribution proceeds allocable to this wasteshed, shall be provided as a pass-through in
the rates, or otherwise funded through county action, whether the liability for this
wasteshed be directly imposed on CCCSD and/or the County in the Acme Lawsuit.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current VWM franchise agreement or any extension
10 F:\DMS\TCS.DIR\0118669.03
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thereof not to exceed one year, or arising from other solid waste administration activities
within the CCCSD-VWM Franchise Area during such term, shall be the responsibility
of CCCSD with respect to occurrences prior to the effective date of termination of the
VWM franchise agreement. County shall be responsible for any such liability arising
from occurrences after said date of termination of the VWM Franchise.
ARTICLE 7
In emni
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above occurring
prior to the effective date of the termination of the current VWM franchise agreement
or any extension thereof not to exceed one year. The liabilities, damages and expenses,
as set forth herein, arising from the Acme Lawsuit shall be excepted from this indemnity
and handled as set forth in paragraphs 6.1 through 6.3, inclusive.
7.2
11 F:\DMS\TCS.DIR\0118669.03
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County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above occurring
after the effective date of the termination of the current VWM Franchise or any extension
thereof not to exceed one year.
ARTICLE S
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of this Agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall take such legal
action as may be required to delegate the County's solid waste collection, transport and
disposal franchise authority for the unincorporated areas within the jurisdictional
boundaries of the CCCSWA (as such areas are further described in the CCCSWA 1994-
1995 RFP documents and map therefrom attached as Exhibit B) to the CCCSWA to
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enable the CCCSWA to enter into regional franchises pursuant to the CCCSWA 1994-
1995 RFP process.
ARTICLE 9
Miscellaneous Provisions
9_1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
9.2 Section headings
The article headings and section headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
9_3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
9.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
9.5 Severability
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If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
996 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
997 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
14 F:\DMS\TCS.DIR\0118669.03
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The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of the date last written
below.
Dated: , 1995 CENTRAL CONTRA COSTA SANITARY DISTRICT
BY:
Roger Dolan, General Manager
Dated: , 1995 COUNTY OF CONTRA COSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, General Counsel
Central Contra Costa Sanitary District
General Counsel
County of Contra Costa
15 F:\DMS\TCS.D1R\0118669.03
DRAFT -June 12, 1995
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
OF THE NORTH CONCORDIPACHECO/CLYDE
SOLID WASTE FRANCHISE AREA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection, transport and disposal of solid waste, and
franchising thereof within certain unincorporated areas within North Concord, Pacheco and
Clyde. The terms and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection, transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512 and as otherwise provided for in
Public Resources Code §§40", et seq; and
F:\DMS\TCS.DIR\0118828.03
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B. WHEREAS, CCCSD entered into a franchise agreement with Boyd Olney,Jr. dba
Pleasant Hill Bayshore Disposal, a sole proprietorship (hereinafter "PHBS") dated April 1, 1986
granting PHBS the exclusive franchise to collect garbage within the CCCSD-PHBS Franchise
Area, defined below, for a term of ten years expiring March 31, 1996 (hereinafter "PHBS
Franchise") attached hereto as Exhibit A; and 1
C. WHEREAS, Pleasant Hill Bayshore Disposal, Inc. (hereinafter PHBS, Inc.) a
wholly owned subsidiary of Browning-Ferris Industries of California, Inc. is now operating as
the successor in interest to PHBS; and
D. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
E. WHEREAS, Central Contra Costa Solid Waste Authority (hereinafter
"CCCSWA") is a joint powers authority and is formed pursuant to Government Code §§6500,
et seq. (currently comprised by member agencies of CCCSD and the City of Walnut Creek); and
F. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
G. WHEREAS, the County desires to have the exclusive authority to franchise or
contract for the collection of solid waste within the CCCSD-PHBS Franchise Area; and
2 F:\DMS\TCS.DIR\0118828.03
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H. WHEREAS, the County,pursuant to California Government Code §25827 has the
authority to collect or contract for the collection, or both, of solid waste within the
unincorporated areas of the County; and
I. WHEREAS, the County has requested by action of the Board of Supervisors on
to become a member of CCCSWA; and
J. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
K. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas, as well as constituents of the other
members of CCCSWA concerning collection, transfer and disposal of solid waste and certain
other AB 939 obligations; and
L. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal member of
CCCSWA, and provided further that the County delegate to CCCSWA its authority to franchise
solid waste collection, transport and disposal within the unincorporated areas within the
jurisdictional boundaries of the Authority set forth in the CCCSWA 1994-1995 Franchising RFP.
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
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ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-PHBS Franchise Area
"CCCSD-PHBS Franchise Area" means and includes the unincorporated areas of the
County which are currently in the jurisdictional boundaries of CCCSD and which are
subject to the PHBS Franchise. The franchise area is further described by the 600 scale
maps as referenced in the franchise agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this Agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
4 F:\DMS\TCS.DIR\0118828.03
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1.5 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time. (The term
"garbage" is the defined term used within the PHBS Franchise, which term is defined therein
and is relatively synonymous with the use of the term "solid waste" within this Agreement.)
ARTICLE 2
Obligations of CountX
2.1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this Agreement.
2.2
Except as provided herein below, County shall be responsible for all solid waste
management of the unincorporated areas of the CCCSD-PHBS Franchise Area as of the
effective date of this agreement.
2.3
Upon the expiration of the current unextended term of the PHBS franchise agreement,
County shall be responsible for administration of all AB 939 activities including diversion
and recycling within the existing CCCSD-PHBS Franchise Area.
5 F:\DMS\TCS.DIR\0118828.03
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ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall file a resolution assigning the PHBS Franchise for the remainder of its
term and thereafter refraining from exercising its franchising authority within the
CCCSD-PHBS Franchise Area so long as the County exercises its franchising authority
within that area. This assignment and delegation and/or agreement to refrain from further
exercise of authority to franchise shall be effective on 1995.
3.2
CCCSD shall continue to administer all AB 939 diversion and recycling activities
currently being undertaken pursuant to the PHBS franchise agreement and otherwise
currently being undertaken by CCCSD, or on its behalf within the CCCSD-PHBS
Franchise Area until March 31, 1996. CCCSD, notwithstanding the assignment of the
franchise agreement to County, shall continue to provide this service for the balance of
the franchise term, based on programs which have already been initiated, and planned
and budgeted for.
3.3
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
PHBS Franchise as are available and requested by County.
6 F:\DMS\TCS.DIR\0118828.03
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3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-PHBS Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-PHBS Franchise Area shall not be subject to the jurisdiction of the
CCCSWA and it is not intended that this area be included within the CCCSWA
jurisdictional boundaries, nor is it included in the 1994-1995 CCCSWA collection,
transport and disposal franchise RFP process.
4.2
County and CCCSD shall, in good faith,participate as members of CCCSWA in the RFP
process, including the execution of the franchise agreements providing for solid waste
services within the CCCSWA jurisdiction contemplated by the RFP; provided that the
CCCSWA Board of Directors determines that such solid waste franchise agreements are
acceptable and the CCCSWA Board takes the actions appropriate for entering into such
agreements.
7 F:\DMS\TCS.DIR\0118828.03
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ARTICLE 5
Franchise Fees
51
CCCSD has received all franchise fee payments pursuant to the PHBS Franchise for the
remainder of the current term expiring in March 31, 1996. Such fees have already been
allocated by CCCSD to programs for carrying out AB 939 activities within the CCCSD-
PHBS Franchise Area through the remaining term of the PHBS Franchise. County shall
receive no payment of said previously collected franchise fees, however, nor shall
County be required to pay any membership fee for participation in CCCSWA for the
remainder of the term of the PHBS Franchise. [Alternative language: County shall
receive $ of the current year's franchise fees under the PHBS Franchise,
based on the Effective Date of the within Agreement.] Nothing in this -agreement is
intended to limit County from imposing additional franchise fees or taking any other
action in administration of the PHBS Franchise during its remaining term following the
Effective Date of assignment of said franchise to the County.
ARTICLE 6
Liability Issues
61
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation V. A1thin
CD Medical, Inc., US District Court, Northern District of California, Case No. C91-
8 F:\DMS\TCS.DIR\0118828.03
DRAFT -June 12, 1995
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-PHBS Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base of the
existing CCCSD-PHBS Franchise Area, notwithstanding the assignment/transfer of the
franchise authority to the County. The proportionate share of responsibility for the
constituents/customers in the CCCSD-PHBS Franchise Area shall be based on the waste
derived historically from that wasteshed.
6.2
The County as the future rate setting entity, agrees that the proportionate share of any
liability or settlement costs to be borne by the customer/constituent base of the CCCSD-
PHBS Franchise Area, and amounts sufficient to pay for the net proportionate liability,
if any, after deducting all insurance and contribution proceeds allocable to this wasteshed,
shall be provided as a pass-through in the rates, or otherwise funded through County
action, whether the liability for this wasteshed be directly imposed on CCCSD and/or the
County in the Acme Lawsuit.
9 F:\DMS\TCS.DIR\0118828.03
DRAFT-June 12, 1995
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current PHBS franchise agreement or arising from other
solid waste administration activities within the CCCSD-PHBS Franchise Area during such
term, shall be the responsibility of CCCSD with respect to occurrences prior to the
effective date of assignment of the PHBS franchise agreement. County shall be
responsible for any such liability arising from occurrences after said date of assignment
of the PHBS Franchise.
ARTICLE 7
Indemnity
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
10 F:\DMS\TCS.DIR\0118828.03
DRAFT -June 12, 1995
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above occurring
prior to the effective date of the assignment the current PHBS franchise agreement. The
liabilities, damages and expenses, as set forth herein, arising from the Acme Lawsuit
shall be excepted from this indemnity and handled as set forth in paragraphs 6.1 through
6.3, inclusive.
72
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for,injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above occurring
after the effective date of the assignment of the current PHBS Franchise.
ARTICLE 8
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of this Agreement by both parties):
11
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DRAFT -June 12, 1995
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall take such legal
action as may be required to delegate the County's solid waste collection, transport and
disposal franchise authority for the unincorporated areas within the jurisdictional
boundaries of the CCCSWA (as such areas are further described in the CCCSWA 1994-
1995 RFP documents and map therefrom attached as Exhibit B) to the CCCSWA to
enable the CCCSWA to enter into regional franchises pursuant to the CCCSWA 1994-
1995 RFP process.
ARTICLE 9
Consent to Assi ng_ment
9.1
This agreement is subject to CCCSD obtaining consent by PHBS, Inc. to the assignment
of the franchise agreement from CCCSD to the County, said consent to be in form
acceptable to CCCSD. Said consent shall include a provision from PHBS, Inc. that
PHBS, Inc. will not bring suit or seek any other relief from CCCSD concerning any
issues relating to the exclusivity of the franchise agreement and/or the jurisdictional
boundaries of the franchise for all periods prior to the effective date of assignment of the
PHBS franchise agreement.
1.2 F:\DMS\TCS.DIR\0118828.03
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ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
13 F:\DMS\TCS.DIR\0118828.03
DRAFT-June 12, 1995
10.2 Paragraph headings
The article headings and paragraph headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
10.3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
10.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
10.5 Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
10.6 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
14 F:\DMS\TCS.DIR\0118828.03
n
DRAFT - June 12, 1995
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
10.7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of the date last written
below.
Dated: 1995 CENTRAL CONTRA COSTA SANITARY. DISTRICT
BY:
Roger Dolan, General Manager
Dated: , 1995 COUNTY OF CONTRA COSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, General Counsel
Central Contra Costa Sanitary District
General Counsel
County of Contra Costa
15 F:\DMS\TCS.DIR\0118828.03
SELLAR,HAZARD,SNYDER,KELLY&FITZGERALD
RUDD SELLAR A PROFESSIONAL LAW CORPORATION DEAN E.BARBIERI
A.J.ENGLEKING(1924-1981) 1111 Civlc DRrvE,SUITE 300 ROBERT B.HUNTER,II
JAMES L.HAZARD A.DUANE PINKERTON,II
MARTIN T.SNYDER POST OFFICE BOX 3510 WILLIAM E.MANNING
JOHN KELLY WALNUT CREEK,CALIFORNIA 94598 JILL LATCHAW
JAMES V.FITZGERALD,III TELEPHONE(510)938-1430 THOMAS C.SITES
RICHARD M.MCNEELY FAX(510)256-7508 ANNE D.JACOBBERGER
KENTON L.ALM LORRAINE M.TALLARICO
CHARLES A.WOOD,JR.
MARK CORNELIUS August 2, 1995
RONI S.ANDRESEN
Valentin Alexeeff, Director
Growth Management and Economic Development Agency
651 Pine Street, No. Wing, Second Floor
Martinez, California 94553-1213
Lillian Fujii
Deputy County Counsel
County Counsel Office
651 Pine Street, 9th Floor
Martinez, California 94553
Reference: TRANSITIONAL AGREEMENTS
Our File No.: C3100-010.46
Dear Mr. Alexeeff and Ms. Fujii:
Enclosed are the two separate transitional agreements in final form, including changes requested
by County Counsel's office, along with additional redlined revisions. The strikeout and
underlining in these separate additional copies indicate changes subsequently requested by Roger
Dolan.
The changes for the most part were for purposes of clarification only, with the possible
exception of changes made to section 6.2. These latter changes may be viewed as partially
substantive in nature.
We hope that you can proceed to place these Agreements on your agenda for the Board of
Supervisor's meeting of August 8, 1995. We assume you will have no further comments.
Thank you for your courtesy and cooperation in this matter.
Your truly,
SELLAR, HAZARD, SNYDER,
KELLpTY/& FITZGERALDJ/
THOMAS C. SITES
TCS:clb
Enclosure
REDLINE A
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
TO BE WITHIN THE JURISDICTION OF CCCS WA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection of garbage, and franchising thereof. The terms
and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection,transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512, and as otherwise provided in for
in Public Resources Code §40000, et seq; and
B. WHEREAS, CCCSD entered into a Franchise Agreement with Valley Disposal
Service, Inc. granting Valley Disposal Service, Inc. the exclusive franchise to collect garbage
within the GGGSD 3,0Aw F fan,. ise Af-ea, defiiied below, a portion of CCCSD's jurisdictional
boundaries. including both incorporated and unincorporated areas, for a term of ten years
expiring February 29, 1996; and
F:\DMS\7CS.DIR\0118669.06
C. WHEREAS, Waste Management Collection and Recycling, Inc., through its
Division, Valley Waste Management (hereinafter "VWM"), is the current franchisee under the
Valley Disposal Service,Inc. Franchise Agreement (hereinafter "VWM Franchise"); and
D. WHEREAS, the County, pursuant to California Government Code §25827, the
California Constitution and Public Resources Code §§40,000 et sea, has the authority to collect
or contract for the collection, or both, of solid waste within the unincorporated areas of the
County; and
E. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
F. WHEREAS Central Contra Costa Solid Waste Authority(hereinafter"CCCSWA")
is a joint powers authority and is formed pursuant to Government Code §§6500, et seq.
(currently comprised of member agencies of CCCSD and the City of Walnut Creek); and
G. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the First Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
H. WHEREAS, the County desires to have clear exclusive authority to franchise or
contract for the collection of solid waste within the unincorporated sections of the current
CCCSD-VWM F_franchise -4area; and
i. > the Getifity,
2 F:\DMS\TCS.DIR\0118669.06
or-both of se4id waste
> >
H. WHEREAS, the County has requested by action of the Board of Supervisors on
January 24. 1995 and thereafter to become a member of CCCSWA; and
Y.J. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate'local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
I K. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
r
jointly for all constituents of the unincorporated areas as well as constituents of other members
of CCCSWA concerning collection, transfer and disposal of solid waste and certain other AB
939 obligations; and
ML. WHEREAS, CCCSD is willing to delegate cede its solid waste collection
franchise authority for the unincorporated areas to the County, provided that the County becomes
a full and equal member of CCCSWA, and provided further that the County delegates (in the
same manner as the City of Walnut Creek for its City area) to CCCSWA its authority to
franchise solid waste collection, transport and disposal within the unincorporated areas within
the jurisdictional boundaries of CCCSWA asset forth in the CCCSWA November
1994-1993 Franchising RFP; and
AFM. WHEREAS, County previously indicated its intent to directly assume franchise
administration in unincorporated areas within CCCSD on and after the expiration of the
Franchise Agreement (CCCSD-PIIBSVWM Franchise) on February 29. 1996; and
3 F:\DMS\7CS.DIR\0118669.06
ON. WHEREAS, CCCSD disputes the County authority to assume franchise
administration in the unincorporated areas within CCCSD.
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
r
4 F:\DMS\TCS.DIR\0118669.06
ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-VWM Unincor,,,porated Franchise Area
"CCCSD-VWM Unincorporated Franchise Area" means and includes only the
unincorporated areas of the County which are currently in the jurisdictional boundaries
of CCCSD and which are subject to the VWM Franchise. The franchise area is further
r
described by the 600 scale maps as referenced in the Franchise Agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this Agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
5 F:\DMS\TCS.DIR\0118669.06
n
1.5 Franchise Agreement
"Franchise Agreement" or "VWM Franchise," for purposes herein means the
"Agreement for Collection Removal and Disposal of Garbage Zone 2 " between Valley
Disposal Services Inc and CCCSD dated March 1. 1986,
1.6 RFP, RFP Process
"RFP" and "RFP Process" means the process by which CCCSWA solicited proposals for
solid waste handling and related AB 939 activities pursuant to a document dated
November. 1994, entitled Central Contra Costa Solid Waste Authority ReQuest for
ProMsals for Integrated Solid Waste Management Services and the receipt and evaluation
process by CCCSWA of responses to the request for proposals.
Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time,,including
green waste and recyclables. (The term "garbage" is the defined term used within the
NWAI Franchise Agreement, which term is defined therein at section 1(e) and is
felatively synonymous with the use ef th term "solid waste" within this Agreement).
6 F:\DMS\TCS.DIR\0118669.06
ARTICLE 2
Obligations of County
2.1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this Agreement.
2.2
Concurrent with the.execution of this agreement, the County shall file a resolution with
r
respect to the CCCSD-VWM Unincorporated Franchise Area delegating its franchising
authority as of March 1, 1996 to the CCCSWA at least in the same manner as the City
of Walnut Creek as of the date this Agreement is approved by the Board of Supervisors.
The County shall further execute any other reasonably necessary documents for the
purpose of enabling the CCCSWA to undertake its role as the regional franchising
authority as specified in the above noted Walnut Creek delegation. If the current
CCCSD Franchise Agreement with VWM (Franchise Agreement) is extended for a
period of time not to exceed one year, the effective date for the delegation of the
franchise authority to CCCSWA by the County shall be extended by a like period of
time; hereinafter. said term of the franchise and any extension not to exceed one year
shall be collectively referred to as the "franchise term" or "term of the franchise."
7 F:\DMS\TCS.DIR\0118669.06
2.3
As between the County and CCCSD, the County shall be responsible to the extent
allowed by law and except as delegated to CCCSWA for all solid waste management of
the unincorporated areas of the CCCSD-VWM Uninco=rated Franchise Area set forth
in this agreement beginning ,
,.,,.,,,io of the GGGSD 3,Wvq l c...e d-s .at the end of the VWM franchise term.
ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall delegate to the County and thereafter refrain from exercising its franchising
authority in the CCCSD-VWM Unincorporated Franchise Area so long as the County
exercises its franchising or equivalent authority (such as County's delegation to
CCCSWA) within that area. This delegation and/or agreement to refrain from further
exercise of authority to franchise shall be effective rafeh 1, 1996, e on the date of
termination of the current franchise agreement with VWM, if,..,«,,..ded, w :,.i.. a -te
provided that the conditions precedent in Article 8. section
8.1 have been satisfied. If said conditions precedent have not been so satisfied, this
agreement and the delegation and/or agreement to refrain from further exercise of
authority to franchise shall not be effective until said conditions precedent have been met.
8 F:\DMS\TCS.DIR\0118669.06
3.2
CCCSD shall be responsible for administration of the current WALN 4Franchise
eA_greement for the remaining term of said agreement,
In addition, CCCSD shall continue to administer all AB 939
diversion and recycling activities currently being undertaken pursuant to the *WN
€Franchise a,A_greement and otherwise currently being undertaken by CCCSD, or on it
behalf within the CCCSD-VWM Unincorporated Franchise Area for the remaining term
of said Franchise Agreement.., ' .
3
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
VVA Franchise Agreement, as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-VWM Unincorporated Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-VWM Uninco orated Franchise Area shall be subject to the jurisdiction
of the CCCSWA in accordance with the County's aforenoted delegation.
9 F:\DMS\TCS.DIR\0118669.06
42
County and GGGSD shall, in good faith, participate as a members of CCCSWA in the
RFP process, including the execution (along with the City of Walnut Creek) of the
franchise agreements providing for solid waste services within the CCCSWA jurisdictions
contemplated by the RFP; provided that CCCSWA Board of Directors determines that
such solid waste franchise agreements are acceptable and the CCCSWA Board takes the
actions appropriate for entering into such agreements.
3
During the period between the effective date of this agreement and the effective date of
a new franchise agreement covering the CCCSD-VWM Unincorporated Franchise Area
entered into pursuant to the ongoing CCCSWA RFP pProcess, County shall be allowed
full opportunity to participate on staff and Board level, on all decisions with regard to
processing the RFP proposals and with regard to entering into appropriate franchise and
disposal agreements.
4.4
CCCSD and County agree that except for the authority delegated herein to CCCSWA
with respect to the provision of solid waste services, upon the termination of the 4
Franchise, Agreement, ' , County
shall (as and to the extent provided and allowed by law) be responsible for administration
of all AB 939 activities including diversion and recycling within the CCCSD-VWM
Unincorporated Franchise Area.
10 F:\DMS\TCS.DIR\0118669.06
ARTICLE 5
Franchise Fees
CCCSD has received all franchise fee payments pursuant to the Franchise
Agreement and shall receive any additional payments during the term of said franchise.
County shall receive no portion of
said franchise fees, however, County shall not be required to pay any membership fee
for joining CCCSWA. The CCCSWA expenses are prorated to Member Agencies is
€aged annually on a tonnage basis. The CCCSWA fees with respect to the CCCSD-
VWM Uninco orated Franchise Area have been paid to date, and will be paid by, or
on behalf of, CCCSD during the remaining term of the €Franchise eA_greement
and any extension thereof not to exceed one year. Thereafter, CCCSD will have no
responsibility for County's share of membership fees or costs due CCCSWA for the
£etifity unincorporated areas within the CCCSWA jurisdictional boundaries.
5.2
If the VWM franchise is extended beyond March 1, 1996. the County may impose, in
its discretion, such additional franchise fees as may be allowed by law. CCCSD agrees
to set rates to provide for such fees and direct VWM to collect such County franchise
fees during the remaining term of said Franchise Agreement.
11 F:\DMS\7CS.DIR\0118669.06
ARTICLE 6
Liability Issues
61
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical. Inc.. US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-VWM Unincorporated Franchise Area, the proportionate
share of any such responsibility for clean-up costs shall be the responsibility of the
constituent base in the existing CCCSD-VWM Unincorporated Franchise Area,
notwithstanding the assignment/transfer of the franchise authority to the County. The
proportionate share of responsibility for the customers in the existing franchise area shall
be based on the waste derived historically from the wasteshed area. By entering into this
Agreement, the County is not assuming any responsibility or liability for the defense of
the Acme lawsuit for this wasteshed area.
12 F:\DMS\TCS.DIR\0118669.06
6.2
The County as the future franchising authority, either directly or through the CCCSWA,
agrees that the proportionate share of any liability or settlement costs (including_a
proportionate share of net legal costs and expenses incurred after the termination of the
Franchise Agreement) to shall be borne by the customer/constituent base of the CCCSD-
VWM Unincorporated Franchise Area, and amounts sufficient to pay for the net
proportionate liability, costs and expenses, if any, after deducting all insurance and
contribution proceeds allocable to this wasteshed, shall be provided and collected to the
fullest extent allowed by law as a pass-through in the collector franchise rates for the
Area, whether the liability and/or settlement costs for this wasteshed be directly imposed
on CCCSD and/or the County in the Acme Lawsuit. If deemed appropriate, the County
may (at its discretion) collect such proceeds as charges or fees imposed at any County
franchised landfill and/or transfer station facility receiving solid waste from the VWM-
CCCSD Unincorporated Franchise Area. wasteshed.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
13 F:\DMS\TCS.DIR\0118669.06
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current VVA €Franchise eA_greement or any ex ension
thereof not te emeeed one year-, r arising from other solid waste administration activities
within the CCCSD-VWM Unincorporated Franchise Area as a result of occurrences
during such term, shall be the responsibility of CCCSD with respect to occurrences prior
to the effective date of termination of the VWM Franchise Agreement. As between
County and CCCSD, County shall be responsible for any liability arising as a result of
occurrences after said date of termination of the VWM Franchise and during County
franchise administration. In no event is County, by entering into this Agreement
assuming any legal liability for any period prior to the said Franchise Agreement
termination for the seRd wasteshed area. except as specifically set forth above.
ARTICLE 7
Indemni
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 arising at any time
from occurrences prior to the effective date of the termination of the current I►AR4
14 F:\DMS\TCS.DIR\0118669.06
€Franchise eAgreement. . The liabilities,
damages and expenses, as set forth.herein, arising from the Acme Lawsuit shall be
excepted from this indemnity and handled as set forth in paragraphs 6.1 through 6.3,
inclusive.
7.2
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above arising from
occurrences after the effective date of the termination of the current N Franchise
Agreement.
ARTICLE 8
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of this Agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall in the same manner
as the City of Walnut Creek take such legal action as may be required to delegate the .
15 F:\DMS\TCS.DIR\0118669.06
County's solid waste collection, transport and disposal franchise authority for the
unincorporated areas within the jurisdictional boundaries of the CCCSWA (as such areas
are further described in the CCCSWA 1994-1995 RFP documents and the map attached
hereto as Exhibit A). to the CCCSWA to enable the CCCSWA to enter into regional
franchises pursuant to the CCCSWA 1994-1995 RFP process.
ARTICLE 9
Miscellaneous Provisions
9_1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
9.2 Section headings
The article headings and section headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
9_3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
9.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
16 F:\DMS\TCS.DIR\0118669.06
9 Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
9_6 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
9_7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
9_8 Future Franchising Authority
Except for the up-to-one-year extension period allowed by this agreement for CCCSD
administration of the current VWM franchise, it has been and remains the County's
position that on and after the expiration of the GGGSD P! Franchise Agreement
(February 29. 1996), CCCSD has no franchise authority for the unincorporated areas
covered by this agreement to the extent the County thereafter franchises and/or regulates
(e.g., delegates, etc.) for said areas. Nothing herein shall be construed as a waiver or
modification of past County actions or its position in this regard, except for the said up-
17 F:\DMS\TCS.D1R\0118669.G6
to-one-year extension period. It is understood and recognized that CCCSD does not
agree with this County position.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of the date last written
below.
Dated: 1995 CENTRAL CONTRA COSTA SANITARY DISTRICT
BY:
Roger Dolan, General Manager
Dated: 1995 COUNTY OF CONTRA COSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, General Counsel
Central Contra Costa Sanitary District
General Counsel
County of Contra Costa
18 F:\DMS\TCS.DIR\0118669.06
rl
REDLINE B
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
OF THE NORTH CONCORD/PACHECO/CLYDE
SOLID WASTE FRANCHISE AREA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection, transport and disposal of solid waste, and
franchising thereof within certain unincorporated areas within North Concord, .Pacheco and
Clyde. The terms and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection, transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512 and as otherwise provided for in
Public Resources Code §§40000, et seq; and
B. WHEREAS, CCCSD entered into a franchise agreement with Boyd Olney, Jr. dba
Pleasant Hill Bayshore Disposal, a sole proprietorship (hereinafter "PHBS") dated April 1, 1986
granting PHBS the exclusive franchise to collect garbage within the CCCSD-PHBS Franchise
Area, defined below, for a term of ten years expiring March 31, 1996 (hereinafter "PHBS
Franchise") attached hereto as Exhibit A; and
C. WHEREAS, Pleasant Hill Bayshore Disposal, Inc. (hereinafter PHBS, Inc.) a
wholly owned subsidiary of Browning-Ferris Industries of California, Inc. is now operating as
the successor in interest to PHBS; and
D. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
E. WHEREAS, Central Contra Costa Solid Waste Authority (hereinafter
"CCCSWA") is a joint powers authority and is formed pursuant to Government Code §§6500,
et seq. (currently comprised by member agencies of CCCSD and the City of Walnut Creek); and
F. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the First Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
G. WHEREAS, the County desires to have the clear exclusive authority to franchise
or contract for the collection of solid waste within the CCCSD-PHBS Franchise Area; and
H. WHEREAS, the County, pursuant to California Government Code §25827, the
California Constitution and Public Resources Code §§40,000 es . has the authority to collect
or contract for the collection, or both, of solid waste within the unincorporated areas of the
County; and
2 F:\DMS\TCS.DIR\0118828.06
1. WHEREAS, the County has requested by actions of the Board of Supervisors on
Janu 24. 1995 and thereafter to become a member of CCCSWA; and
1. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
K. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of the other
members of CCCSWA concerning collection, transfer and disposal of solid waste and certain
other AB 939 obligations; and
L. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal member of
CCCSWA, and provided further that the County delegates (in the same manner as.the City of
Walnut creek for its City area) to CCCSWA its authority to franchise solid waste collection,
transport and disposal within the unincorporated areas within the jurisdictional boundaries of the
Atithefity CCCSWA set forth in the CCCSWA November, 1994-14 Franchising RFP.,
exclusive of the unincorporated areas within the CCCSD-PHBS Franchise Area; and
M. WHEREAS, County previously indicated its intent to directly assume franchise
administration in unincorporated areas within CCCSD on and after the expiration of the CCCSD-
PHBS Franchise Agreement; and
N. WHEREAS, CCCSD disputes County authority to assume franchise administration
in the unincorporated areas within CCCSD.
3 F:\DMS\TCS.DIR\0118828.06
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-PHBS Franchise Area
"CCCSD-PHBS Franchise Area" means and includes the unincorporated areas of the
County which are currently in the jurisdictional boundaries of CCCSD and which are
subject to the PHBS Franchise Agreement. The franchise area is further described by
the 600 scale maps as referenced in the franchise agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this Agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
4 F:\DMS\TCS.DIR\011882$.06
1.5 PHBS Franchise Agreement
"PHBS Franchise Agreement." for puMQses herein, means the "Agreement for
Collection Removal and Disposal of Garbage. Zone 3." dated April 1. 1986. between
PHBS and CCCSD,
1,6 RFP, RFP Process
"RFP" and "RFP Process" means the process by which CCCSWA solicited proposals for
solid waste handling and related AB 939 activities pursuant to a document dated
November, 1994, entitled Central Contra Costa Solid Waste Authority Rmuest for
Pro2gsals for Integrated Solid Waste Management Services and the receipt and evaluation
process by CCCSWA of responses to the request for proposals
1.57 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 an"�regulations promulgated thereunder, as amended from time to time,including
green waste and recyclables. (The term "garbage" is the defined term used within the
PHBS Franchise Agreement, which term is defined therein at section I(e) and is
relay synonymous with the term "solid waste" within this Agreement.)
5 F:\DMS\TCS.DIR\0118828.06
AkTICLE 2
Obligations of County
2.1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this Agreement.
22
Except as provided herein below, as between the County and CCCSD, the County shall
r be responsible to the full extent allowed by law for all solid waste management of the
unincorporated areas of the CCCSD-PHBS Franchise Area as of the effective date of this
agreement. County shall accUt the assignment of the PHBS Franchise Agreement from
CCCSD by the date specified in section 3.1.
2.3
Upon the expiration of the current unextended term of the PHBS 4Franchise aAgreement,
as between the County and CCCSD, the County shall be responsible to the full extent
allowed by law for administration of all AB 939 activities including diversion and
recycling within the existing CCCSD-PHBS Franchise Area. As of the effective date of
this agreement. the County shall assume any and all responsibilities for AB 939 activities,
except for those specifically reserved in section 3.2 to CCCSD for the remainder of the
PHBS Franchise Agreement term.
6 F:\DMS\TCS.DIR\0118828.06
ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall file a resolution assigning the PHBS Franchise Agreement for the
remainder of its term and thereafter refraining from exercising its franchising authority
within the CCCSD-PI-IBS Franchise Area so long as the County exercises its franchising
authority within that area. This assignment and delegation and/or agreement to refrain
from further exercise of authority to franchise shall be effective on October 1
1995• provided that the conditions precedent in Article 8. section 8.1 have been
satisfied. If said conditions precedent have not been so satisfied, this agreement and the
delegation and/or agreement to refrain from further exercise of authority to franchise
shall not be effective until said conditions precedent have been met.
3.2
CCCSD_ shall continue to administer all those AB 939 diversion and recycling activities
currently being undertaken pursuant to the PHES fEranchise$Agreement and otherwise
currently being undertaken by CCCSD, or on its behalf within the CCCSD-PHBS
Franchise Area until March 31, 1996. CCCSD, notwithstanding the assignment of the
franchise agreement to County, shall continue to provide this service for the balance of
the franchise term, based on fQ_r programs which have already been initiated,and plat
and b such as the home composting workshops and current recyclinE
promotion.
7 F:\DMS\TCS.DIR\0118828.06
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
PHBS Franchise Agreement as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-PHBS Franchise Area.
ARTICLE 4
r
Participation in CCCSWA
4.1
The CCCSD-PHBS Franchise Area shall not be subject to the jurisdiction of the
CCCSWA and it is not intended that this area be included within the CCCSWA
jurisdictional boundaries, nor is it included in the 1994-1995 CCCSWA collection,
transport and disposal franchise RFP process.
4.2
County afid GGGS , shall, in good faith, participate as a members of CCCSWA in the
RFP process, including the execution (along with the City of Walnut Creek) of the
franchise agreements providing for solid waste services within the CCCSWA jurisdiction
contemplated by the RFP; provided that the CCCSWA Board of Directors determines
that such solid waste franchise agreements are acceptable and the CCCSWA Board takes
the actions appropriate for entering into such agreements.
8 F:\DNS\TCS.DIR\0118828.06
ARTICLES
Franchise Fees
CCCSD has received all franchise fee payments pursuant to the PHBS Franchise
Agreement for the remainder of the current term expiring in March 31, 1996, which
franchise aareement shall not be extended. Such fees have already been allocated by
CCCSD to programs for carrying out AB 939 activities within the CCCSD-PHBS
Franchise Area through the remaining term of the PHBS Franchise Agreement. County
shall receive no payment of said previously collected franchise fees, however, nor shall
County be required to pay any membership fee for participation in CCCSWA for the
remainder of the term of the PHBS Franchise Agreement. Nothing in this agreement is
intended to limit County from imposing additional franchise fees or taking any other
action in administration of the PHBS Franchise Agreement during its remaining term
following the Effective Date of assignment of said franchise to the County.
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical, Inc., US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
9 f:\DHS\TCS.DIR\0118828.06
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-PHBS Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base of the
existing CCCSD-PHBS Franchise Area, notwithstanding the assignment/transfer of the
franchise authority to the County. The proportionate share of responsibility for the
constituents/customers in the CCCSD-PHBS Franchise Area shall be based on the waste
derived historically from the wasteshed area. By entering this Agreement, the County
is not assuming any responsibility or liability for the defense of the Acme lawsuit for this
r
wasteshed area.
6.2
The County as the future rate setting entity, agrees that the proportionate share of any
liability or settlement costs (including a proportionate share of net legal costs and'
expenses, incurred after the termination of the Franchise Agreement) to shall be borne
by the customer/constituent base of the CCCSD-PIBS Franchise Area, and amounts
sufficient to pay for the net proportionate liability, costs and expenses. if any, after
deducting all insurance and contribution proceeds allocable to this wasteshed, shall be
provided and collected to the fullest extent allowed by law as a pass-through in the
collector franchise rates for the area, whether the liability and/or settlement costs for this
wasteshed be directly imposed on CCCSD and/or the County in the Acme Lawsuit. If
deemed appropriate, the County may (at its discretion) collect such proceeds as charges
10 F:\DMS\TCS.DIR\0118828.06
or fees imposed at any County franchised landfill and/or transfer station facility receiving
solid waste from the PHBS Franchise srea��d.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility .
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current PHBS -fFranchise eA_greement or arising from
other solid waste administration activities within the CCCSD-PHBS Franchise Area as
a result of occurrences during such term, shall be the responsibility of CCCSD with
respect to occurrences prior to the effective date of assignment of the PHBS -fFranchise
$A_greement, as set forth in section 3.1. As between County and CCCSD, County shall
be responsible for any liability arising as a result of occurrences after said date of
assignment of the PHBS Franchise Agreement and during County franchise
administration. In no event is County, by entering this Agreement, assuming any legal
liability for the said wasteshed area for any period prior to the said effective date of
assignment of the PHBS F_franchise Agreement except as specifically set forth above.
11 F:\DMS\TCS.DIR\0118828.06
ARTICLE 7
In. ,mnity
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 arising at any
time from occurrences prior to the effective date of the assignment the current PHBS
franchise agreement. The liabilities, damages and expenses, as set forth herein, arising
from the Acme Lawsuit shall be excepted from this indemnity and handled as set forth
in paragraphs 6.1 through 6.3, inclusive.
7.2
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above arising from
occurrences after the effective date of the assignment of the current PHBS Franchise
Aareement.
12 F:\DHS\TCS.DIR\0118828.06
ARTICLE 8
Conditions Precedent
$1
The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of.this Agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall in the same manner
as the City of Walnut Creek take such legal action as may be required to delegate the
' County's solid waste collection, transport and disposal franchise authority for the
unincorporated areas within the jurisdictional boundaries of the CCCSWA (as such areas
are further described in the CCCSWA 1994-1995 RFP documents and the map attached
hereto as Exhibit B) to the CCCSWA to enable the CCCSWA to enter into regional
franchises pursuant to the CCCSWA 1994-1995 RFP process.
ARTICLE 9
Consent to Assignment
9.1
This agreement is subject to CCCSD obtaining consent by PHBS, Inc. to the assignment
of the franchise agreement from CCCSD to the County, said written consent to be
acceptable to and approved by CCCSD and the County. Said consent shall include a
provision from PHES, Inc. that PHBS, Inc. will not bring suit or seek any other relief
from CCCSD concerning any issues relating to the exclusivity of the franchise agreement
13 F:\DMS\TCS.DIR\0118828.06
and/or the jurisdictional boundaries of the franchise for all periods prior to the effective
date of assignment of the PHBS franchise agreement. If this consent is not obtained and
approved by CCCSD and the County by the expiration (March 31, 1996) of the CCCSD-
PHIS Franchise Agreement, nothing herein shall be construed to prevent the County's
exercising of whatever franchising authority it has in the Franchise Area.
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
10.2 Paragraph headings
The article headings and paragraph headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
10.3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
10.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
14 F:\DMS\TCS.DIR\0118828.06
10=5 Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
15 F:\DMS\TCS.D1R\011882S.06
1 0.6 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
10.7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
10.8 Future Franchising Authority
Except for the up-to-one-year extension period allowed by a separate County-CCCSD
Transitional Agreement for CCCSD administration of the current Waste Management
Collection and Recycling, Inc. (Valley Waste Management) franchise, it has been and
remains the County's position that on and after the expiration of the CCCSD-PHBS
Franchise Agreement, CCCSD has no franchise authority for the unincorporated areas
covered by this agreement to the extent the County thereafter franchises and/or regulates
(e.g., delegates, etc.) for said areas. Nothing herein shall be construed as a waiver or
modification of past County actions or its position in this regard, except for the said up-
16 F:\DMS\TCS.DIR\0118828.06
to-one-year extension period. It is understood and recognized that CCCSD does not
agree with this County position.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of
the date last written below.
Dated: 1995 CENTRAL CONTRA COSTA SANITARY DISTRICT
BY:
Roger Dolan, General Manager
Dated: 1995 COUNTY OF CONTRA COSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, General Counsel
Central Contra Costa Sanitary District
General Counsel
County of Contra Costa
17 F:\DMS\TCS.DIR\0178828.06
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: March 8, 1996
To: Anne Cervelli, Clerk of the Board
From: Victor J. Westman, County Counsel �(
By: Lillian T. Fujii, Deputy County Counsel
Re: Resolution Authorizing Central Contra Costa Solid Waste Authority to enter Solid
Waste Collection Agreements.
Pursuant to your request, I contacted the Community Development Department
and was advised by Mary Flemming that "August 3, 1995" is the date to be filled in the first
two blanks of the subject draft resolution, as well as the blank on page three of the Growth
Management Director's and the County Counsel's August 8, 1995 report to the Board on
the same subject. (August 3, 1995 is the date of the draft franchise agreement prepared by
the Contra Costa County Solid Waste Authority.)
The effective dated of the resolution is the date of its adoption.
Attach.: 1) Copy, August 8, 1995 Board Report from Director of Growth Managementand
County Counsel concerning Joining Central Contra Costa Solid Waste Authority;
2) Draft Resolution.
cc w/ Attach.: Mary Flemming, Community Development Department
5.jpa-res.95
SD. 11
TO: BOARD OF SUPERVISORS
FROM: Val Alexeeff, Director, Growth Management and Economic Development
Victor J. Westman, County Counsel k��
�i s
DATE: August 8, 1995
SUBJECT: Joining Central Contra Costa Solid Waste Authority
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS: Consider actions to be taken on:
1 . First Amended Joint Exercise of Powers Agreement for the
Central Contra Costa Solid Waste Authority and ratification of
County membership therein.
2. Resolution Authorizing Central Contra Costa Solid Waste
Authority to enter Solid Waste Collection Agreements and
delegating County franchise authority.
3 . Transitional Agreements Between County and Central Contra
Costa Sanitary District for the Collection of Solid Waste:
A. Within Unincorporated Areas of North Concord, Pacheco and
Clyde.
B. Within Unincorporated Areas to be within the Jurisdiction
of the Authority (unincorporated South County areas of
Danville, Alamo , etc. ) .
Consider County' s acceptance of the terms of this Agreement
(unincorporated South County area) being made contingent
upon the Central Contra Costa Sanitary District agreeing, in
writing, that an amount equal to the franchise fees
established by the County for the said area for the period
commencing April 1, 1996 be paid by the District to the
County.
4 . Authorizing staff (GMEDA Director and County Counsel) to
review final documents for conformance with the Board' s action as
(See continuation)
CONTINUED ON ATTACHMENT: xx 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
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.
Orig: Community Development Department ATTESTED
cc: County Counsel PHIL BATCHELOR, CLERK OF
THE BOARD OF SUPERVISORS
AND COUNTY ADMINISTRATOR
5a: \centrljp. 895
BY DEPUTY
RECOMMENDATIONS - CONTINUED:
well as take any ministerial action necessary to finalize the
aforementioned membership in the Central Contra Costa Solid Waste
Authority (e.g. , filling in dates in the final document) , and
authorizing GMEDA Director to file any further documents
necessary for membership in said Authority with the Clerk of the
Board.
FISCAL IMPACT:
Short term: Under the Transitional Agreement for the North
Concord/Pacheco/Clyde area, the County would assume franchising
responsibility without benefit of franchise fees.
Long term: The Franchise Agreement to be issued to BFI
pursuant to the RFP process provides for the County' s collection
of franchise fees for the unincorporated areas.
BACKGROUND/REASONS FOR RECOMMENDATIONS:
For the past several months, the Board' s Solid Waste
Committee has been participants at meetings with the Central
Contra Costa Solid Waste Authority ("Authority") concerning the
County' s joining the JPA for the provision of solid waste
services in the unincorporated territory in the Central/South
County area. Past substantial concerns of County staff have been
addressed in the current documents (most of which documents have
been before the Committee) . These documents are briefly
discussed in the following paragraphs.
1. First Amended Joint Exercise of Powers Agreement
for the Authority.
As the Board members are aware, the Authority (currently the
City of Walnut Creek and the Central Contra Costa Sanitary
District ("Sanitary District") ) issued a Request For Proposals
(RFP) for the provision of solid waste collection service within
the territories represented by the member agencies, including the
unincorporated territory within the Sanitary District' s
jurisdiction. The Board' s Solid Waste Ad Hoc Committee has been
the principal participants in meetings with the Authority for the
County' s joining the JPA (for the unincorporated territory within
the jurisdiction of the Sanitary District) and subsequent or
concurrent delegation to the Authority, of the County' s
franchising authority in the unincorporated territory within the
Sanitary District' s jurisdiction.
As the Board members are also aware, Browning Ferris
Industries submitted the lowest bid for solid waste collection
services, and Valley Waste Management submitted the lowest bid
for recycling services.
2. Resolution Authorizing Authority to enter Solid Waste
Collection Agreement and Delegations.
The Resolution Authorizing the Authority to enter Solid
Waste Collection Agreements delegates to the Authority for a term
of eight years (with a possibility of this term being extended
for two years) , the County' s franchising authority for specified
unincorporated areas within the jurisdiction of the Sanitary
District.
The resolution also delegates to the Authority,
implementation of the County' s Source Reduction and Recycling
Element ("SRRE") and Household Hazardous Waste Element ("HHWE")
for specified unincorporated areas within the jurisdiction of the
Sanitary District.
Delegation is subject to the limitation that any franchise
r
agreement entered into by the Authority shall be substantially
similar to franchise agreements prepared by the Authority dated
, appropriate amendments to the Joint
Exercise of Authority Agreement being adopted, and upon the
County reserving the right to withdraw its delegation at any
time, provided the County must continue to administer the
Authority negotiated and entered contract. The above-referenced
franchise agreement provides for the county' s levy of franchise
fees in the unincorporated area.
3. Transitional Agreements Between County and Central
Contra Costa Sanitary District:
A. North Concord, Pacheco, Clyde
This agreement provides for the Sanitary District ' s
assigning its franchise with Pleasant Hill Bayshore Disposal to
the County for the remainder of the franchise term (March 31,
1996 expiration date) . The Sanitary District would continue to
administer AB 939 recycling activities for the area, including
activities being undertaking pursuant to the Sanitary District' s
franchise agreement with Pleasant Hill Bayshore Disposal, Inc. ,
until the franchise' s termination on March 31, 1996.
B. Unincorporated South County Area (Danville, Alamo,
etc. )
This agreement provides for the Sanitary District delegating
to the County (for the County' s delegation to the JPA) , the
District' s authority to franchise solid waste collection service
in the unincorporated south county area within the jurisdictional
territory of the Sanitary District, upon the expiration of the
current Sanitary District - Valley Waste Management franchise
(March 31, 1996 expiration date) .
The Sanitary District will retain all franchise fees and
will administer the franchise until its termination on March 31,
1996. This transitional agreement also provides for a one-year
extension of the Sanitary District-Valley Waste Management
franchise. The County' s approval of this transitional agreement
should be made contingent on the County receiving franchise fees
from this area commencing April 1, 1996.
4 . Final Transitional Agreements .
On Tuesday, August 1, 1995, we were advised by an attorney
for the Sanitary District that on Friday, July 28, the Sanitary
District made further changes to the transitional agreements. As
of the date of the writing of this report, County staff has not
been advised that the only "conceptual" change requested concerns
allocation of Acme litigation costs. However, final drafts have
not been presented to County staff for presentation to the Board.
Prior to this latest communication, County staff reviewed drafts
of the documents, and had presented staff' s comments (based upon
Committee expressed concerns) to the District ' s legal counsel .
If final documents are received from the District before
Tuesday, August 8, 1995, staff will submit them to the Clerk of
the Board for inclusion in the Board' s packet.
5a: \cenjpa8 . 95
i
BOARD OF SUPERVISORS, CONTRA COSTA COUNTY, CALIFORNIA
Re: Authorizing Central Contra Costa RESOLUTION NO. 95/
Solid Waste Authority to enter
Solid Waste Collection
Agreements
The Board of Supervisors of Contra Costa County RESOLVES THAT:
WHEREAS, the Legislature of the State of California, by enactment of the
California Integrated Waste Management Act of 1989 (hereinafter"AB 939"), as set
forth in Public Resources Code §§ 40000 et seq., as it may be amended from time to
time, has declared that it is within the public interest to authorize and require local
agencies, including cities, to make adequate provisions for solid waste handling within
their jurisdiction; and
WHEREAS, County of Contra Costa, pursuant to Public Resources Code §
40000, Government Code § 25827, the California Constitution and preexisting laws,
could have historically provided for the collection, transfer and disposal of solid waste
generated within its unincorporated limits through issuance of exclusive collection
franchises; and
WHEREAS, Central Contra Costa Sanitary District (hereinafter"CCCSD"),
pursuant to its enabling act, case law and as otherwise provided for in Public
Resources Code §§40000 et seq., has historically provided for the collection, transfer
and disposal of solid waste generated within certain portions of its jurisdictional
boundaries in some unincorporated County areas through issuance of exclusive
collection franchises; and
WHEREAS, Central Contra Costa Solid Waste Authority (hereinafter
"CCCSWA") is a joint powers agency formed pursuant to Government Code § 6500, et
seq. and currently is and will be comprised of member agencies of the City of Walnut
Creek, Contra Costa County and CCCSD; and
WHEREAS, a joint powers agency, as a separate public entity, may exercise
those powers commonly held by its respective members, to the extent the member
agencies provide for the exercise of such common powers to the joint powers agency;
and accordingly, CCCSWA, through the Joint Powers Agreement, as it is to be
amended, will have the authority to contract for the collection, transfer and disposal of
solid waste generated within specified jurisdictional boundaries of its member agencies;
and
WHEREAS, the Contra Costa County has concluded that franchising of solid
waste collection on a regional basis within the CCCSWA jurisdictional boundaries will
serve to consolidate coordination and planning of such collection, transfer and disposal
activities, while providing an opportunity to maximize the ratepayers' market power
while providing for economies of scale, thus benefiting the public served by CCCSWA,
including the citizens of involved unincorporated County areas; and
WHEREAS, AB 939 has authorized and directed counties' among other public
agencies, to develop and implement plans with respect to the Source Reduction and
Recycling Elements and Household Hazardous Waste Elements as specified therein;
and
RESOLUTION NO. 95/
1
WHEREAS, the Contra Costa County has concluded that implementation of
these Source Reduction and Recycling Elements and Household Hazardous Waste
Elements can be accomplished most efficiently through use of CCCSWA to administer
and coordinate implementation on a regional basis for certain specified unincorporated
areas; and
WHEREAS, franchise agreements have been prepared by the CCCSWA for use
in entering into franchises between CCCSWA and Browning-Ferris Industries for
Refuse Collection, Transfer and Disposal, and between CCCSWA and Valley Waste
Management for Recycling and Green Waste Collection, Processing and Marketing
Services; and
WHEREAS, Contra Costa County is willing to delegate its solid waste collection
franchise authority (for refuse, recycling and green waste) to CCCSWA for specified
unincorporated areas, provided that the terms of the franchises therefor to be executed
by CCCSWA provide for the basic provisions and are in a form substantially similar to
the above agreements prepared by CCCSWA dated
NOW, THEREFORE, the Board of Supervisors of Contra Costa County resolves
as follows:
1. With this County's membership in CCCSWA, this County delegates jts
authority to CCCSWA to enter into contracts concerning solid waste collection, transfer
and disposal for the territory within the jurisdictional boundaries of the County as
identified in the aforesaid amended Joint Powers Agreement for provision of refuse,
recycling and green waste service; and
2. The County delegates its authority to CCCSWA to implement the SRREs and
HHWEs of the County through the CCCSWA franchising authority for the specified
unincorporated areas identified in the amended Joint Powers Agreement for these
additional delegations;
3. Said delegation of authority from the County to CCCSWA, as set forth in (1)
and (2) above is for the eight (8) year term of the proposed franchise agreements and is
subject to the limitation that any franchise agreements entered into by CCCSWA shall
be in a form substantially similar to the franchise agreements dated
referenced hereinabove, and further conditioned upon appropriate amendments to the
Joint Powers Agreement being enacted by CCCSWA prior to execution of the franchise
agreements; and
4. Said delegation is further conditioned upon Contra Costa County reserving
the right to withdraw at any time, for any reason, the delegations of authority. However,
in doing so, agrees to administer the franchise agreement as negotiated for the term of
the contract.
5. This resolution shall take effect
RESOLUTION NO. 96/
2
PASSED AND ADOPTED on , 1995, by the Board of
Supervisors by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
I hereby certify that this is a true and
correct copy of an action taken and
entered on the minutes of the Board of
Supervisors on the date shown.
ATTESTED:
PHIL BATCHELOR, Clerk of the
Board of Supervisors and
County Administrator
By:
Deputy
RESOLUTION NO. 951
3
SD. 11
TO: BOARD OF SUPERVISORS
FROM: Val Alexeeff, Director, Growth Management and Economic Development
Victor J. Westman, County Counselk2W
DATE: 'August 8, 1995
SUBJECT: Joining Central Contra Costa Solid Waste Authority
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS: Consider actions to be taken on:
1 . -F-Irst Amended Joint Exercise of Powers Agreement for the
Central Contra Costa Solid Waste Authority and ratification of
County membership therein.
2 . Resolution Authorizing Central Contra Costa Solid Waste
Authority to enter Solid Waste Collection Agreements and
delegating County franchise authority.
3 . Transitional Agreements Between County and Central Contra
Costa Sanitary District for the Collection of Solid Waste:
A. Within Unincorporated Areas of North Concord, Pacheco and
Clyde.
B. Within Unincorporated Areas to be within the Jurisdiction
of the Authority (unincorporated South County areas of
Danville, Alamo , etc. ) .
Consider County' s acceptance of the terms of this Agreement.
(unincorporated South County area) being made contingent
upon the Central Contra Costa Sanitary District agreeing, in
writing, that an amount equal to the franchise fees
established by the County for the said area for the period
commencing April 1, 1996 be paid by the District to the
County.
4 . Authorizing staff (GMEDA Director and County Counsel) to
review final documents for conformance with the Board' s action as
(See continuation)
CONTINUED ON ATTACHMENT: xx 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
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.
Orig: Community Development Department ATTESTED
cc: County Counsel PHIL BATCHELOR, CLERK OF
THE BOARD OF SUPERVISORS
AND COUNTY ADMINISTRATOR
5a: \centrljp. 895
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RECOMMENDATIONS - CONTINUED:
well as take any ministerial action necessary to finalize the
aforementioned membership in the Central Contra Costa Solid Waste
Authority (e.g. , filling in dates in the final document) , and
authorizing GMEDA Director to file any further documents
necessary for membership in said Authority with the Clerk of the
Board.
FISCAL IMPACT:
Short term: Under the Transitional Agreement for the North
Concord/Pacheco/Clyde area, the County would assume franchising
responsibility without benefit of franchise fees.
Long term: The Franchise Agreement to be issued to BFI
pursuant to the RFP process provides for the County' s collection
of franchise fees for the unincorporated areas .
BACKGROUND/REASONS FOR RECOMMENDATIONS:
For the past several months, the Board' s Solid Waste
Committee has been participants at meetings with the Central
Contra Costa Solid Waste Authority ("Authority") concerning the
County' s joining the JPA for the provision of solid waste
services in the unincorporated territory in the Central/South
County area. Past substantial concerns of County staff have been
addressed in the current documents (most of which documents have
been before the Committee) . These documents are briefly
discussed in the following paragraphs .
1. First Amended Joint Exercise of Powers Agreement
for the Authority.
As the Board members are aware, the Authority (currently the
City of Walnut Creek and the Central Contra Costa Sanitary
District ("Sanitary District") ) issued a Request For Proposals
(RFP) for the provision of solid waste collection service within
the territories represented by the member agencies, including the
unincorporated territory within the Sanitary District' s
jurisdiction. The Board' s Solid Waste Ad Hoc Committee has been
the principal participants in meetings with the Authority for the
County' s joining the JPA (for the unincorporated territory within
the jurisdiction of the Sanitary District) and subsequent or
concurrent delegation to the Authority, of the County' s
franchising authority in the unincorporated territory within the
Sanitary District' s jurisdiction.
As the Board members are also aware, Browning Ferris
Industries submitted the lowest 'bid for solid waste collection
services, and Valley Waste Management submitted the lowest bid
for recycling services.
2. Resolution Authorizing Authority to enter Solid Waste
Collection Agreement and Delegations.
The Resolution Authorizing the Authority to enter Solid
Waste Collection Agreements delegates to the Authority for a term
of eight years (with a possibility of this term being extended
for two years) , the County' s franchising authority for specified
unincorporated areas within the jurisdiction of the Sanitary
District.
The resolution also delegates to the Authority,
implementation of the County' s Source Reduction and Recycling
Element ("SRRE") and Household Hazardous Waste Element ("HHWE")
for specified unincorporated areas within the jurisdiction of the
Sanitary District.
Delegation is subject to the limitation that any franchise
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agreement entered into by the Authority shall be substantially
similar to franchise agreements prepared by the Authority dated
, appropriate amendments to the Joint
Exercise of Authority Agreement being adopted, and upon the
County reserving the right to withdraw its delegation at any
time, provided the County must continue to administer the
Authority negotiated and entered contract. The above-referenced
franchise agreement provides for the county' s levy of franchise
fees in the unincorporated area.
3. Transitional Agreements Between County and Central
Contra Costa Sanitary District:
A. North Concord, Pacheco, Clyde
This agreement provides for the Sanitary District ' s
assigning its franchise with Pleasant Hill Bayshore Disposal to
the County for the remainder of the franchise term (March 31,
1996 expiration date) . The Sanitary District would continue to
administer AB 939 recycling activities for the area, including
activities being undertaking pursuant to the Sanitary District ' s
franchise agreement with Pleasant Hill Bayshore Disposal, Inc. ,
until the franchise' s termination on March 31, 1996.
B. Unincorporated South County Area (Danville, Alamo,
etc. )
This agreement provides for the Sanitary District delegating-
to the County (for the County' s delegation to the JPA) , the
District ' s authority to franchise solid waste collection service
in the unincorporated south county area within the jurisdictional
territory of the Sanitary District, upon the expiration of the
current 'Sanitary District - Valley Waste Management franchise
(March 31, 1996 expiration date) .
The Sanitary District will retain all franchise fees and
will administer the franchise until its termination on March 31,
1996. This transitional agreement also provides for a one-year
extension of the Sanitary District-Valley Waste Management
franchise. The County' s approval of this transitional agreement
should be made contingent on the County receiving franchise fees
from this area commencing April 1, 1996.
4 . Final Transitional Agreements .
On Tuesday, August 1, 1995, we were advised by an attorney
for the Sanitary Distridt that on Friday, July 28, the Sanitary
District made further changes to the transitional agreements . As
of the date of the writing of this report, County staff has not
been advised that the only "conceptual" change requested concerns
allocation of Acme litigation costs . However, final drafts have
not been presented to County staff for presentation to the Board.
Prior to this latest communication, County staff reviewed drafts
of the documents, and had presented staff' s comments (based upon
Committee expressed concerns) to the District ' s legal counsel .
If final documents are received from the District before
Tuesday, August 8, 1995, staff will submit them to the Clerk of
the Board for inclusion in the Board' s packet .
5a: \cenjpa8 . 95
r '
DRAFT - July 24, 1995
FIRST AMENDED
JOINT EXERCISE OF POWERS AGREEMENT
CENTRA, CONTRA COSTA SOLID WASTE AUTHORITY
ARTICLE 1: PURPOSE
A. Purpose of Agreement: It is the purpose of this Agreement to establish, pursuant to the
Joint Exercise of Powers Act, a public entity separate from each of the agencies. This
public entity is to be known as the Central Contra Costa Solid Waste Authority,
hereinafter referred to as the "Authority".
B.. Purpose of Authority: The purpose of the Authority shall be to exercise certain powers
set forth below, in a manner which will (1) assure the citizens of the Member Agencies
that certain solid waste transfer station(s), regional resource recovery facility(ies),
recycling facility(ies), household hazardous waste facility(ies), and/or landfill(s) and
related programs will be operated in the most cost effective manner possible consistent
with the proper concern for the environment; and (2) allow for the public ownership
and/or management of said facilities; and (3) allow for certain or all of the Member
Agencies to participate in individual or joint efforts concerning issuing Requests for
Proposals and entering into contracts for franchising of solid waste collection, handling
and disposal, including green waste and recyclables; and (4) allow for such other joint
efforts concerning the handling and disposal of the solid waste stream as may be
beneficial to constituents of the Member Agencies.
C. Members of Authority: This Agreement was entered into as of September 11, 1990 by
and between the cities of Walnut Creek and San Ramon and the Central Contra Costa
Sanitary District (hereinafter "Initial Members"), as individual public entities which
mutually promise and agree as hereinafter set forth. Membership in the Authority is
open to any public entity that is authorized to franchise the collection or handling of
solid waste in. Central Contra Costa County and does so franchise or delegate the
authority to franchise to the Authority. Membership in the Authority is granted upon
a two-thirds (2/3) vote of all members of the Authority Board, as then constituted,
approving the application for membership, and upon compliance with the terms and
conditions of membership set forth by the Board and/or in force at that time.
1 F:\DMS\TCS.DIR\0115230.05
For purposes of this Agreement "solid waste handling" or "handling" shall be as defined
pursuant to California Public Resources Code Section 40195, and is to include collection,
recycling, transportation, storage, transfer, or processing of solid wastes.
D. Jurisdictional Boundaries of Authority• The jurisdictional boundaries of the Authority
shall include the jurisdictional boundaries of the Authority's respective Member Agencies
as set forth in, and as limited by,:the Service Area Map for the Authority, attached
hereto as Exhibit 1.
E. Anvortionment of Expenses: It is the intention of the Authority to collect revenues to
cover the costs of Authority operations. To the extent that the Authority regulates the
operation of transfer facilities, reclamation facilities, recycling facilities, household
hazardous waste facilities, landfill facilities and/or other facilities, the Authority may
recover a portion or all its costs of operation through facility fees and through such other
fees as the Authority may lawfully impose. The Authority may, in addition or
alternatively, recover its costs of operation through administration of franchise
agreements granted by the Authority, including franchise fees and through the collection
of other fees as may be provided for in the various franchise agreements. Such
Authority costs of operation may, in addition, be recovered through franchise fees or
other fees lawfully imposed by or on behalf of the Authority through its Member
Agencies with regard to the Authority's solid waste management activities.
To the extent that operating expenses exceed revenues during any period, including the
initial start-up period of the Authority, the Member Agencies shall be responsible for
providing the requisite funds to the Authority to ensure that such expenses are met in the
proportion that the total tonnage of solid waste collected within the jurisdiction of each
agency bears to the total tonnage of solid waste collected within the jurisdiction of all
members of the Authority. Solid waste collected from areas of a Member Agency
located outside of the jurisdictional boundaries of the Authority are not included in these
calculations. Each Member Agency's contribution to such expenses is dependent upon
such Member Agency's governing body's yearly approval of such contribution, provided,
however, that if such Member Agency's governing body does not approve such
contribution, such Member Agency may be expelled.
It is the intent of this Agreement that monies and Membership Fees advanced to the
Authority by individual Member Agencies to cover Authority costs of operation,
including costs of establishing the Authority, are to be reimbursed to said Member
Agencies. Such reimbursement of funds shall be collected through the fee structures set
forth above. Such reimbursement shall be authorized to the extent that it does not impair
necessary working capital or the ability of the Authority to repay any bond or other debt
obligations.
Notwithstanding the above provisions, where two or more Member Agencies have dual
or overlapping authority to franchise solid waste handling within any portion of the
2 F:\DMS\TCS.DIR\0115230.05
i
Authority's jurisdictional boundaries, the total solid waste collected within said dual or
duplicative jurisdictional boundaries shall only be counted toward or included within the
total tonnage of the Member Agency actually delegating to the Authority the authority
to franchise solid waste handling for the area or areas involved.
ARTICLE 2: POWERS OF THE AUTHORITY
A. General Powers: 1. The Authority shall have all powers common to its Member
Agencies, and such general powers shall further include, but not necessarily be limited
to the following:
a) To advise the Member Agencies on issues related to solid waste handling and
disposal;
b) To advocate the interests of the. Member Agencies related to solid waste
management issues with local, state and federal officials;
c) To plan for transfer station(s), resource recovery facility(ies), recycling
facility(ies), household hazardous waste facility(ies), landfill(s), and other solid
waste facility(ies) and programs, and/or any related closure and post-closure
thereof;
d) To develop transfer station(s), resource recovery facility(ies), recycling
facility(ies), household hazardous waste facility(ies), landfill(s), any other solid
waste facility(ies) and program(s) and/or any related closure and post-closure
thereof;
e) To acquire and/or operate and/or contract for the operation of transfer station(s),
resource recovery facility(ies), recycling facility(ies), household hazardous waste
facility(ies), landfill(s) and other solid waste facility(ies) program(s) and/or any
related closure and post-closure thereof;
f) To regulate rates of transfer station(s), resource recovery facility(ies), recycling
facility(ies), household hazardous waste facility(ies) and landfill(s);
g) To issue Requests for Proposals and enter into agreements to franchise for the
handling and/or disposal of solid waste, green waste, and recyclables;
h) To provide any or all of the solid waste handling and/or disposal services, green
waste and recycling services as set forth herein to other public agencies not
members of the Authority, including issuing Requests for Proposals and entering
into agreements with and on behalf of these other public agencies concerning, but
not limited to, the administration and/or regulation of rates, rate setting,
3 F:\DMS\TCS.DIR\0115230.05
franchising and provision of any other solid waste services deemed reasonable or
necessary by the Authority Board;
i) To advise on matters of solid waste handling and disposal rates and charges;
j) To advise public entities as to market conditions affecting the marketability of
recyclable commodities;
k) To market and sell recyclable commodities; and
1) To conduct joint studies and/or institute joint programs as may be required by law
or are appropriate regarding solid waste handling and disposal including, but not
limited to, such efforts as may be required regarding reduction of the waste
stream disposed at landfills.
2. Notwithstanding the provisions of this Agreement, each
Member Agency retains its own existing authority to franchise solid waste handling and disposal
services and landfills within its own jurisdictional boundaries. Any Member Agency may elect
to delegate to the Authority such rights with respect to solid waste handling and disposal and
upon such terms and conditions as the Authority may agree. Nothing in this Agreement is
intended to or does provide authority for the Authority to regulate: the Acme Landfill, Keller
Canyon Landfill, or any transfer station located at the Acme Landfill, or any of their respective
operations.
3. The Authority's exercise of the above general powers shall
only affect those portions of the Member Agencies lying within the jurisdictional boundaries of
the Authority as set forth in the Map, Exhibit 1 hereto. This provision is not intended to limit
the scope of Article 2(A)(1)(h).
B. Svecific Powers: In carrying out its general powers, the Authority is hereby
authorized to perform all acts necessary or proper for the exercise of said powers which
may include, but are not limited to, the following:
1. To make and enter into contracts and to issue Requests for Proposals;
2. To apply for and accept grants, advances and contributions;
3. To employ or contract for the services of agents, employees, consultants and such
other persons or entities as it deems necessary;
4. To conduct studies;
4 F:\DMS\TCS.DIR\0115230.05
5. To review the Contra Costa Integrated Waste Management Plan and other such
public planning documents as may be developed, and recommend revisions or
amendments thereto;
6. To acquire, construct, manage, maintain, operate and control any buildings,
works or improvements;
7. To acquire, hold or dispose of property;
8. To acquire by condemnation proceedings such real and/or personal property
and/or rights of way as in the judgment of the Authority are necessary or proper
to the exercise of its powers;
9. To incur debts, liabilities or obligations subject to limitations herein set forth;
10. To levy and collect fees and charges to the extent permitted by law;
' 11. To assess and collect, subject to Article 5, Section A and Article 1, Section E,
of both Initial Members and future agency members, fees for membership in the
Authority, so as to provide moneys for the financing of its activities, operations,
and expansion which are not adequately funded by the revenues collected for
services provided by the Authority;
12. To issue bonds, subject to the provisions and limitations of the laws of the State
of California; and
13. To adopt annually, by April 1 of each fiscal year, a budget setting forth all
administrative, operational and capital expenses for the Authority, together with
the apportionment of such expenses by levy against each Member Agency to the
extent necessary, subject to Article 1, Section E.
ARTICLE 3: ORGANIZATION OF AUTHORITY
A. Board of Directors: The Authority shall be governed by a Board of Directors,
hereinafter "Board", which shall exercise all powers on behalf of the Authority. The
Board shall have the authority to carry out all duties and functions within the power of
the Joint Exercise of Powers Agreement.
The Board shall be composed of two (2) representatives from each Authority agency,
who shall be elected members of such agency's governing body. Each member
representative shall have the right to vote on each issue pending before the Board. The
term of Board membership is unlimited except as a Member Agency may provide for its
own representatives; however, as to such member representatives, such term shall
5 F:\DMS\TCS.DIR\0115230.05
automatically expire when the representative is no longer an elected officer of the agency
that he or she represents on the Board.
B. Duties of the Board of Directors: The Board shall perform all acts necessary or proper
to carry out the purposes of this Agreement and to execute the General and Specific
Powers of the Authority, which acts include but are not limited to the following:
a) Conduct Board meetings pursuant to a schedule adopted by the Board;
b) Consider, modify and approve the annual work program and budget;
c) Levy, fix, set and/or impose fees, assessments and charges to the extent permitted
by law and by this Agreement;
d) Authorize, review and accept reports and studies;
e) Review, recommend, approve and/or regulate rates for services provided by the
Authority or over which the Authority has regulatory power through contract or
otherwise;
f) Recommend action to Member Agencies and other public bodies on:
i) The Contra Costa County Integrated Waste Management plan and any
other such public planning documents as may be developed and revisions
or amendments thereof; and
ii) The planning, financing, development and operation of Authority
activities;
g) Accept agencies as subsequent parties to the Agreement and members of the
Authority, and their representatives as Board members;
h) Authorize the hiring and/or engagement of Authority staff;
i) The Board may, from time to time, declare one of the Member Agencies as the
lead agency for specific purposes as may be set forth by the Board or for the
general purpose of staffing the Authority and carrying out the Authority's
functions. At the time said Member Agency is appointed as a lead agency, the
Board shall determine whether the member is to bear the costs of such lead
agency activity or be reimbursed therefor. The Authority, in any event, shall
reimburse agency members for personnel costs associated with the staffing of the
Authority with Member Agency personnel;
6 F:\DMS\TCS.DIR\0115230.05
j) Establish committees to carry out Authority purposes, and appoint committee
members from the Authority Board, the legislative bodies or administration of
Member Agencies, Authority staff, and/or staff of the Member Agencies. The
Authority shall reimburse agency members for personnel costs associated with the
staffing of committees with Member Agency personnel;
k) Establish policies governing the compensation of staff employed by the Authority,
which policies are subject to approval of the governing bodies of the agency
members by a two-thirds (2/3) vote thereof;
1) Delegate duties to Authority or Board staff and/or members, appointed
committees and committee members, the City Councils and/or staff, or the
Sanitary District Board and/or staff or the County Board of Supervisors and/or
staff.
C. Voting Requirements: All actions of the Board may be undertaken by a majority vote
of the Board members present, provided a quorum exists, except for such Board actions
requiring a two-thirds (2/3) vote as may otherwise be set forth herein. Each Board
member shall have one vote.
D. Board of Directors Members: Upon execution of this Agreement, the governing body
of each agency shall, by resolution, appoint two (2) member/representatives to serve as
members of the Board in conformity with the requirements of Article 3, Section A.
E. Subsequent Authority Members: Any agency which has the authority to franchise solid
waste collection in Central Contra Costa County, and franchises the same or delegates
such authority to franchise to the Authority (including cities incorporated and districts
formed after the effective date of this Agreement, and including the County), may
become members of the Authority. Its representatives may become voting members of
the Board by: (1) presenting an adopted resolution to the Board which includes a request
to become a member of the Authority, (2) receiving a two-thirds (2/3) vote of all
-- members of the Board to accept the new member, and (3) by payment of any charges
and execution of all documents as may be required by the Board. Such charges may
include such items as compensation to the existing Authority members for previously
expended costs in furtherance of Authority purposes, including staffing expenses, capital
expenses, financing expenses, and assessments for losses in prior Authority operations.
These examples are purely illustrative, however, and are not intended to limit the power
of the Authority or the Board to fix whatever buy-in, capitalization or other equalization
charges deemed necessary or proper. Payment of such charges may be made in any
manner deemed necessary or proper by the Board, including, but not limited to cash
payment, a differential rate structure at Authority facilities, future capital contributions,
surcharges or by other plan which might include appropriate security.
7 f:\DMS\TCS.DIR\0115230.05
F. Board Officers: The Board shall by a majority vote elect from its members a
Chairperson and a Vice Chairperson. The Chairperson and Vice Chairperson shall have
one-year terms and may be re-elected so as to serve a maximum of two (2) consecutive
one-year terms, unless the Board unanimously approves additional consecutive term(s)
as to a particular Chairperson or Vice Chairperson. The Chairperson shall preside over
all meetings according to the Rules of Procedure adopted by the Board. The Board
Chairperson shall represent the Authority and execute any contracts and other documents
when required by the Rules of Procedure.
G. Board Rules: The Board is empowered to establish its own Rules of Procedure to the
extent those rules are not inconsistent with the laws of the State of California governing
the operations of this Authority.
H. Meetings of the Board:
a) Regular Meetings: The Board shall hold scheduled public meetings at a location
selected by the Board.
b) Special Meetings: Special meetings of the Board may be called in accordance
with the provisions of Section 54956 of the California Government Code.
c) Notice of Meetings: All meetings of the Board shall be held subject to the
current provisions of the Ralph M. Brown Act, bevag Sections 54950 et sea. of
the California Government Code, and other applicable laws of the State of
California requiring public meetings.
d) Minutes: The Board Chairperson shall cause minutes of all meetings to be kept
and shall, as soon as possible after such meeting, cause a copy of the minutes to
be forwarded to each member of the Board.
I. Staffing: Each of the Member Agencies shall use its best efforts to provide staff to the
Authority as may be necessary initially for the Authority to execute its powers and duties
and as may be required by the Board thereafter. Staff may be drawn from Member
Agencies or agency staff. Additionally, the Authority may contract with or employ
entities and/or individuals not associated with Member Agency staff, as permitted by
Article 2, Section B(3).
J. ffic r : The Board has the power to appoint as staff to the Board the following
officers:
a) Executive Director: There may be an Executive Director appointed who will
serve as the chief administrative officer of the Authority. He or she shall be
responsible to the Board for the management and administration of all Authority
affairs pursuant to the Board's direction.
8 F:\DMS\TCS.DIR\0115230.05
Until such time as the Board may determine to appoint an Executive Director who
is not a staff member of a Member Agency, and for such other times as there is
no Executive Director serving, the Board may appoint an interim Executive
Director, who shall have such powers and duties as are set forth in this section.
An interim Executive Director shall be the chief administrative officer of one of
the Member Agencies, or such other agency staff member as the Board deems
appropriate.
b) Treasurer and Controller: There shall be a Treasurer and Controller to be the
custodian of all Authority funds, to pay demands and to make or contract for an
annual audit. Such Treasurer shall be the Treasurer of one of the Member
Agencies, the County Treasurer, a Certified Public Accountant or one of the
Authority's officers or employees as set forth in California Government Code
§§6505.5 and 6505.6.
c) Secre : There shall be a Secretary appointed by the Executive Director who
shall be responsible for the noticing of meetings and recording of minutes of
meetings as required by the Brown Act and the Rules of Procedure, in addition
to such other duties as the Executive Director may assign.
K. Funds. Expenditures and Audits:
Each and every expenditure of moneys shall be authorized or approved by the Board or
by a person designated by the Board to authorize expenditures. The Treasurer shall draw
warrants to pay demands so authorized for payment by the Board.
Before the Authority may expend any moneys or incur any financial obligation, it shall
adopt a budget showing proposed expenditures for the Fiscal Year and the proposed
means of financing such expenditures. The budget shall be for the ensuing Fiscal Year,
beginning on July 1 of each calendar year and ending on June 30 of the following
calendar year.
The Board shall periodically cause an audit to be performed with regard to the financial
operations of the Authority.
ARTICLE 4: TERMS OF AGREEMENT
A. Effective Date: This Agreement shall become effective on the date of its execution by
all the agencies identified as Initial Members in Article 1, Section C.
B. Amendments: This Agreement may be amended by a two-thirds (2/3) vote of all
members of the Board. Any such amendment shall be effective upon the date of such
action.
9 F:\DMS\TCS.DIR\0115230.05
C. Undertaldng of Specific Projects: Although it is the intent of this Agreement, and
therefore the purpose of the Authority, to cooperate jointly amongst the Member
Agencies so as to provide the most efficient operation of solid waste facilities and most
efficient means of handling and/or disposal of solid waste, green waste and recyclables
on a-regional basis, nothing contained in this Agreement is intended to prevent the
Authority from undertaldng projects and agreements to provide services pursuant to
separate contacts between the Authority and individual Member Agencies and non-
member public agencies, which projects and agreements are not intended to benefit all
of the Member Agencies. The Authority shall hold title to each project and to the rights
and benefits of each agreement in trust for the use of the members who participate. The
members who participate in a project or agreement shall indemnify and hold harmless
the members who do not participate from liability of any kind resulting from, or in any
way related to, the financing, construction, acquisition, operation or maintenance of such
project, or resulting from or arising out of performance of such agreement.
The Authority shall have the power to proceed with the final acquisition and construction
of a project which is not joined in by all Authority members, only when a separate
project contract has been entered into which provides arrangements for obtaining funds
sufficient to pay for all costs of such project.
D. Withdrawal:
a) Any Member Agency, upon written notice given by January 1 of any year to the
Chairperson of the Board of Directors, and to all other Member Agencies, may
withdraw from the Authority Effective no earlier than July 1 of that year;
provided,, however, that the withdrawal of such Member Agency shall not
terminate such Member Agency's responsibility under any obligation of such
Member Agency or, the Authority or any action taken in connection therewith,
and further provided that the withdrawing agency may pay to the Authority on the
effective date of withdrawal, all money owing to the Authority, and as to those
capital expenditures that the withdrawing agency has agreed to participate in by
contract or otherwise, its share of such capital expenditures. Such financial
obligations of such withdrawing agency may be assumed by another entity upon
a two-thirds (2/3) vote of the Board, absent the participation of the representative
of the withdrawing agency.
b) Notwithstanding subsection (a) above, a member, shall not be permitted to
withdraw from the Authority unless the Board determines by majority vote,
absent the participation of the representatives of the withdrawing agency, that as
of the effective date of withdrawal the Authority will have a waste stream
sufficient to meet all Authority operating expenses and obligations outstanding as
of the effective date of withdrawal, whether capital, operational, maintenance-
related, or otherwise, and to ensure that all Authority operations will not be
10 F:\DMS\TCS.DIR\0115230.05
adversely affected to a material extent by the withdrawal of the withdrawing
member.
C) Notwithstanding subsections 1 and 2, above, any Member Agencies, regardless
of whether it withdraws from Authority membership, may at any time, for any
reason, upon thirty (30) days prior written notice to the chairperson of the Board
of Directors, terminate the delegation of authority from said Member Agency
granting the Authority the right to franchise on behalf of said Member Agency.
As of the effective date of termination of said delegation of franchise authority,
said Member Agency shall no longer be a party subject to any franchise
agreement entered into on its behalf by the Authority. Said Member Agency
agrees, however, to accept an assignment of all rights and obligations under each
said franchise agreement entered into on its behalf by the Authority with respect
to those portions of the service area of each franchise agreement located within
the jurisdictional boundaries of said Member Agency. Said Member Agency
further agrees to administer such partially assigned franchise agreements in good
faith, pursuant to the terms of each said franchise agreement, for the balance of
their respective terms. Nothing contained herein limits the right of said Member
Agency and any of said franchisees from subsequently agreeing to amend said
partially assigned franchise agreements.
d) The withdrawing agency shall also continue to be liable for its share of Authority
obligations, including, but not limited to, operations costs and the General
Budget, until the effective date of its withdrawal.
E. Expulsion of Member: The Board may, by a two-thirds (2/3) vote of the Board
members, terminate a Member Agency's membership in the Authority for a material
breach of this Agreement after six (b) months' notice to such Member Agency. A
Member Agency so expelled shall be responsible for capital expenditures and non-capital
obligations of the Authority as set forth in Article 4, Section D above. Further, a
Member Agency so expelled shall have the rights as set forth in Article 4 D(3) with
respect to termination of its delegation of franchising authority and partial assignment of
the franchise agreements.
F. Reinstatement: An agency, subsequent to its withdrawal, or subsequent to expulsion,
may seek reinstatement as a Member of the Authority. Application for reinstatement
shall be made in writing to the Board. An agency shall be reinstated upon a two-thirds
(2/3) vote of all members of the Board as then constituted. The Board may require an
agency seeking reinstatement to meet any terms and conditions which the Board deems
appropriate.
G. Division of Propgrty and Obligations on Dissolution: Upon dissolution of the Authority
as a legal entity, all debts and obligations of the Authority, including all bonded
indebtedness, shall be paid, and the remaining property of the Authority shall be divided
11 F:\DMS\7CS.DIR\0115230.05
in proportion to the contributions made among all of the agencies who are parties to this
Agreement at the time of its dissolution.
H. Flow Control: With regard to any flow control rights that Member Agencies may have
with-respect to any solid waste, Member Agencies shall not exercise such flow control
rights for solid waste collected within the Authority's jurisdictional boundaries in any
manner inconsistent with the terms of any Authority franchise or other contractual
agreements.
To the extent that Member Agencies may now, or in the future, have the authority to
exercise flow control for the said waste stream collected within their jurisdictional
boundaries, the Authority shall, on entering into a contract or franchise concerning
collection, transfer and disposal of solid waste, be deemed to have the authority to
exercise such flow control rights for the solid waste within the jurisdictional boundaries
of the Authority under the terms of this Agreement.
Nothing herein is intended in any manner to constitute an exercise of flow control by the
Authority or its Member Agencies. The intent of this Agreement is to provide
recognition of the respective roles of the Authority and its Member Agencies with respect
to solid waste flow control issues. Moreover, this Agreement shall be interpreted to be
limited by existing and developing law on issues of flow control and interstate commerce.
I. Acceptance of Waste Stream: The Authority shall accept the waste stream of any
Member Agency, whether delivered for solid waste handling by the Member Agency or
by a franchisee of the Authority or Member Agency, to the extent the Authority owns
or operates solid waste handling facilities designed and constructed to accommodate the
waste stream from the affected Member Agency and the facility or facilities have
adequate capacity to serve the Member Agency's entire need. The Authority shall
attempt to acquire, construct and/or operate Authority facilities in such a manner as to
best accommodate the solid waste handling needs of all Member Agencies.
1. Funding From Member Agencies: Subject to Article 1, Section E, each Member Agency
shall provide its share of the Authority's general budgetary obligation. Each initial
member's share is set forth in Exhibit A attached hereto and incorporated herein by
reference and made a part hereof as if fully set forth herein.
K. Liability: The turt liability of the Authority, all members of the Board, and all officers
and employees of said Authority shall be controlled by the provisions of Division 3.6 of
Title I of the Government Code of the State of California. Any tort and contractual
liability incurred by or imposed upon the "Authority" shall remain the sole liability of
the Authority rather than the liability of the Member Agencies, to the full extent such
allocation of liability is permitted by law. The provisions of said Division relating to the
indemnification of public employees and the defense of actions against them arising out
12 F:\DMS\TCS.DIR\0115230.05
of any act or omission occurring within the scope of their employment shall apply to all
Authority directors, officers and employees. Notwithstanding the specific terms of this
section, the Authority and the Member Agencies shall retain the power to allocate
liability between the Authority and the Member Agencies, or among the Member
Agencies, in a manner other than as set forth above pursuant to written agreement or to
do the same for specific projects or undertakings of the Authority.
To the extent that any liability of the Authority, whether based on contract, tort or
otherwise, passes through to a Member Agency, or Member Agencies, said liability shall
be apportioned based upon principals of fault. If, for any reason, apportionment between
Member Agencies cannot be based upon fault under the circumstances involved, then
apportionment shall be based upon that proportion that the total tonnage of solid waste
collected within the jurisdiction of each Member Agency bears to the total tonnage of
solid waste collected within the jurisdiction of all members of the Authority as more fully
described in Article l(E).
L.
Indemnity: The Authority shall indemnify, defend (at the Authority's sole expense),
and hold harmless the Member Agencies, their respective officers, directors, employees,
and agents from and against any and all loss, liability, penalty, forfeiture, claim,
demand, action, proceeding, or suit of any and every kind and description (including, but
not limited to, injury to and death of any person and damage to property, or for
contribution or indemnity claimed by third parties) arising as the sole result of the
Member Agency or Agencies' status as members of the Joint Powers Authority, i.e.
liability of the Member Agency is derivative only. The Authority's duty to indemnify,
hold harmless and defend shall survive the expiration or earlier termination of this
Agreement.
M. Insurance: Each Member Agency and its respective officers, directors and employees
shall be named as additional insured to the same extent and degree that the Authority and
its officers, directors and employees are named as additional insureds with respect to any
insurance as required by the Authority pursuant to the terms of any contract or franchise
agreement entered into by any other party with the Authority.
N. Term and Termination: This Agreement shall continue in force until terminated as
specified by this section. This Agreement may be terminated at the end of any Fiscal
Year by consent of all Member Agencies; however, this Agreement and the Authority
shall continue to exist for the purpose of disposing of all claims, the distribution of
assets, and any other functions necessary to conclude the affairs of the Authority. Upon
termination, payment of the obligations and division of the property of the Authority shall
be conducted pursuant to Section G of this Article.
13 F:\DMS\TCS.DIR\0115230.05
ARTICLE 5: PROJECT FINANCINt2
A. Separate Contracts: Financing of specific capital projects, such as the acquisition or
construction of solid waste facilities by the Authority, shall be subject to separate
contracts between the Authority and Member Agencies which intend to participate in the
specific facility. The contracts shall set forth each agency's responsibility for capital
expenditures and operating expenses, as well as such other germs as may be appropriate.
B. Debt: The Authority may issue or cause to be issued bond and other indebtedness, and
pledge any property and/or revenues as security to the extent permitted by law. Any and
all debts, liabilities, and obligations incurred by or imposed upon the Authority shall be
the debts, liabilities, and obligations solely of the Authority, rather than the debts,
liabilities, and obligations of the individual Member Agencies.
C. Financial Contribution: For agencies joining the Authority after the effective date of this
Agreement, the Board shall determine such agencies' proportionate financial contribution,
which is due upon joining the Authority.
D. Funding: It is intended that the liabilities of the Authority, to the fullest extent possible,
are funded by revenues generated by facility operations or through solid waste fees and
franchise fees based on services provided by Authority or pursuant to Authority direction
or regulation.
ARTICLE 6: EXERCISE OF AUTHORITY'S POWERS
This Agreement is entered into under the provisions of Article 1 of Chapter 5, Division 7, Title
One of the Government Code concerning Joint Powers Agreements. As to those powers vested
in the Authority pursuant to Section 6508 of the Government Code, they shall be exercised in
the same manner and subject to the same restrictions as those applicable to a sanitary district
pursuant to statutes and laws of the State of California.
14 F:\DMS\TCS.DIR\0115230.05
ARTICLE 7: OBLIGATIONS OF AUTHORITY
Any and all debts, liabilities, and obligations incurred by or imposed upon the Authority shall
be the debts,.liabilities, and obligations solely of the Authority and no capital or administration
debt, liability, or obligation shall thereby be imposed upon any party to this Agreement or the
collective parties hereto.
PASSED AND ADOPTED this day of , 19_ by the following
vote:
AYES: Members:
NOES: Members:
ABSENT: Members:
President of the Board of Directors
Central Contra Costa Solid Waste
Authority
COUNTERSIGNED:
Secretary
Central Contra Costa Solid Waste
Authority
APPROVED AS TO FORM:
Kenton L. Alm
District Counsel
15 f:\DMS\TCS.DIR\0115230.05
BOARD OF SUPERVISORS, CONTRA COSTA COUNTY, CALIFORNIA
Re: Authorizing Central Contra Costa RESOLUTION NO. 95/
Solid Waste Authority to enter
Solid Waste Collection
Agreements
The Board of Supervisors of Contra Costa County RESOLVES THAT:
WHEREAS, the Legislature of the State of California, by enactment of the
California Integrated Waste Management Act of 1989 (hereinafter "AB 939"), as set
forth in Public Resources Code §§ 40000 et seq., as it may be amended from time to
time, has declared that it is within the public interest to authorize and require local
agencies, including cities, to make adequate provisions for solid waste handling within
their jurisdiction; and
WHEREAS, County of Contra Costa, pursuant to Public Resources Code §
40000, Government Code § 25827, the California Constitution and preexisting laws,
could have historically provided for the collection, transfer and disposal of solid waste
generated within its unincorporated limits through issuance of exclusive collection
franchises; and
WHEREAS, Central Contra Costa Sanitary District (hereinafter "CCCSD"),
pursuant to its enabling act, case law and as otherwise provided for in Public
Resources Code §§40000 et seq., has historically provided for the collection, transfer
and disposal of solid waste generated within certain portions of its jurisdictional
boundaries;in some unincorporated County areas through issuance of exclusive
collection franchises; and
WHEREAS, Central Contra Costa Solid Waste Authority (hereinafter
"CCCSWA") is a joint powers agency formed pursuant to Government Code § 6500, et
seq. and currently is and will be comprised of member agencies of the City of Walnut
Creek, Contra Costa County and CCCSD; and
WHEREAS, a joint powers agency, as a separate public entity, may exercise
those powers commonly held by its respective members, to the extent the member
agencies provide for the exercise of such common powers to the joint powers agency;
and accordingly, CCCSWA, through the Joint Powers Agreement, as it is to be
amended, will have the authority to contract for the collection, transfer and disposal of
solid waste generated within specified jurisdictional boundaries of its member agencies;
and
WHEREAS, the Contra Costa County has concluded that franchising of solid
waste collection on a regional basis within the CCCSWA jurisdictional boundaries will
serve to consolidate coordination and planning of such collection, transfer and disposal
activities, while providing an opportunity to maximize the ratepayers' market power
while providing for economies of scale, thus benefiting the public served by CCCSWA,
including the citizens of involved unincorporated County areas; and
WHEREAS, AB 939 has authorized and directed counties' among other public
agencies, to develop and implement plans with respect to the Source Reduction and
Recycling Elements and Household Hazardous Waste Elements as specified therein;
and
RESOLUTION NO. 951
1
Z
156 'ON Noun-lOS3u
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6uinaasaa Aluno0 e}so0 ea}uo0 uodn peuol}lpuoo aaq:pn} sl uol}e6alep pleS .t,
pue 'sluaweaAe
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eqj of s}uawpuawe aleiidoidde uodn peuolllpuoo aaq:pnl pue 'anogeulaaaq peouaaa}aa
palep s}uaweaAe aslgoueal aqj of aeliwls Allel}ue}sgns waoj a ul aq
(legs `dMS000.Aq olid paia}ue s}uaw99a6e aslgOue4 Aue INI UO'Ie}lwll eqj of joefgns
sl pue SIUawaaa6e asigoueaj pasodoid aqj jo wia}ae;DA (g) jg6la eqj aol sl anoge (Z) pue
(`) ul gpoj }as se `bMS000 of Ajuno0 aqj woa; Allaoglne jo uolle6alep p1eS '£
'suoile6alop Ieuoglppe
asaq}SOI}uawaaa6y saaMod 3ulOr papuawe aql ui paylluapl Sema paleaodaooulun
payioads eqj aol Allaoq}ne 6uislgoueaj VAAS000 aqj g6noaq} Aluno0 94110 S3MHH
PUB s32]2JS aqj juaweldwl of dMS000 o4 Aluoglne sp sa4e6alap Ajuno0 aql -Z
pue 'eolnaas alseM uaaa6 pue 6ulloAoaa
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se Aluno0 eqj jo sauepunoq leuopipsunf aq} uigllM kolpial eqj aol lesodslp pue
aajsueaj 'uol}oalloo alseM phos 6uluieOu03 spe.iJuoo olid jajua of VAAS000 o} Allloglne
sji sa}e6elep Ajuno0 siq} 'y/AS000 ui dlgsaagwew s,Ajuno0 slg} WM L
:SM01101 Se
SanlosaI Ajuno0 elso0 ealuo0 jo saosuuadnS jo PMS NI '32JOA3213H1 `MON
palep ` AAS000 Aq paaedaid SJuawaaa6e anoge eqj
of aepwls Allellue}sgns wjoj a uI aje pue SUOiSinoid oiseq aqj ao} apinoid yMS000 Aq
palnoexe aq O}JOIaaaq} SaslgOUeJI aqj 10 Swaa} aqj jegj papinoid 'seaje paleaodaooulun
payloads aol VMS000 o} (a}seM ua9a6 pue 6ulloAoaa 'asnja.a aol) Allaoglne aslgoueal
uoijoalloo alseM phos sal aje6alap of 6ullllM sl A4uno0 e4so0 e.quo0 'S`d3Z13HM
PUB 'saolnaaS
6uI19�aeIN pue 6ulssaOOJd 'uol1391100 a}seM u99a0 pue 6uiIOAOGU SOI luaw96eueVI
a}seM AalleA PUB ` AAS000 uae/v%49q pue 'lesodsld pue jalsueal 'uol}oallo0 asnja�j
joj saljlsnpul slaja3-6uluMoig pue VMS000 uaeN;gq saslgouejj op 6ulaa}ue ul
asn iol VMS000 aqj Aq paiedaid ueaq aneq S}uawa9a6e 9slgoue4 'Sd32J3HM
pue 'seaae
pajeaodiooumn payloads uie:peo aol siseq leuoi6aa a uo uoi}ejuawaldwl ejeuipa000 pue
ialslulwpe 04 yMS000 jo asn g6noagl Apualoy49 Isow pagslldw000e aq ueO slu9w913
alseM snopjezeH plogasnOH pue slu9wa13 6ulloAoa�I pue uOilonpay aolnoS asegj
jo uoljejuawaldwi jegj papnlouoo seq Ajuno0 elsOO 84UOO 941 `S`d3233HM
PASSED AND ADOPTED on , 1995, by the Board of
Supervisors by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
I hereby certify that this is a true and
correct copy of an action taken and
entered on the minutes of the Board of
Supervisors on the date shown.
ATTESTED:
PHIL BATCHELOR, Clerk of the
Board of Supervisors and
County Administrator
By:
Deputy
RESOLUTION NO. 951
3
1tJ L{J
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: July 24, 1995
To: Kent Alm and Tom Sites, SELLAR, HAZARD, SNYDER,
KELLY, & FITZGERALD
11 1
XA/*
From: Victor J. Westman, County Counsel . —I
Re: "Transitional Agreements"
Attached are my proposed hand written revisions to pages 2,
3 , 5, 6, 7, 8 , 9, 10, 11, 12 , and 14 of your June 12 , 1995 draft
for the CCCSD - VWM Franchise Area for your consideration. Similar
revisions are, of course, proposed for the North Concord/Pacheco/
Clyde June 12 , 1995 Transitional Agreement; except that all
references to "August 6, 1996" should be changed to "the expiration
of the . CCCSD - PHBS Franchise, " and see additional proposed
revisions to X9 . 1 on attached page 12 for this second agreement .
If possibly, we should meet later this week to discuss
these draft agreements . Depending on that meeting' s time and date,
I will attempt to determine if Val Alexeeff can also attend. At
this time, I can be available to meet Wednesday (7-26-95) from 3 : 30
to 5 : 00 p.m. or any time on Friday (7-28-95) except from 1 : 30 to
2 .30 p.m.
VJW:bmw
CC : Supervisor Gayle Bishop
Supervisor Jeff Smith
Val Alexeeff, GMEDA
Attachments
vjw-1:a:\tran-agr.me2
FILE CUPY
-DRAF=T June_-12,-,_11995
C. WHEREAS, Waste Management Collection and Recycling, Inc., through its
Division, Valley Waste Management (hereinafter "VWM"), is the current franchisee under the
Valley Disposal Service, Inc. franchise agreement (hereinafter "VWM Franchise"); and
/ D. WHEREAS, the County,pursuant to California Government Code§2582Ras the
V authority to collect or contract for the collection, or both, of .olid waste within the
unincorporated areas of the County; and
E. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
F. WHEREAS Central Contra Costa Solid Waste Authority(hereinafter"CCCSWA")
is a joint powers authority and is formed pursuant to Government Code §§6500, et seq.
(currently comprised of member agencies of CCCSD and the City of Walnut Creek; and
G. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
V// C.le4JY
H. WHEREAS, the County desires to have *e exclusive authority to franchise or
contract for the collection of solid waste within the CCCSD-VWM Franchise Area;_and
Xq
1. WHEREAS, the County, pursuant to California Government Code §25827.)and
T
other authority found in §40000 et seq. of the California Public Resources Code, has the
2 F:\DMS\TCS.DI4\0118669.03
r
DRAFT- June 12, 1995
authority to-,collect or contract for the collection, or both of solid waste within the
unincorporated areas of the County; and
J. WHEREAS, the County has requested by action of the Board of Supervisors on
to become a member of CCCSWA; and
K. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
L. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of other members
of CCCSWA concerning collection, transfer and disposal of solid waste and certain other AB r,
939 obligations; and
M. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal 'member of
;/tJ 7(Sc Yt? t✓Pi{'Y' G�S7/(
y .
CCCSWA, and provided further that the County to CCCSWA its authority to franchise
solid waste collection, transport and disposal within the unincorporated areas within the
jurisdictional boundaries of the Authority as set forth in the CCCSWA 1994-1995 Franchising
RFP. P L�UJ! J �/"����: (� ( l/+i/ i"/ (C3� J vi�I f,
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows: r
d F:\DMS\TCS.DIR\0118669.03
r ,
r
DRAFT- June 12, 1995
� n
1.5 Solid Wastet
z.
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time. (The
term "garbage" is the defined term used within the VWM Franchise, which term is
defined therein and is relatively synonymous with the use of the term "solid waste"
within this Agreement).
ARTICLE 2 r
1w
Obligations of County
221
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this Agreement.
2.2
Concurrent with the execution of this agreement, the County shall file a resolution with
respect to the CCCSD-VWM Franchise Area delegating its franchising authority as of
1� March 1, 1996 to the CCCSWA The County shall further execute any other reasonably
necessary documents for the purpose of enabling the CCCSWA ,to undert* its role as
/ ors SPE'ce %Ay7r � �j lP�vV
t1 the regional franchising authority If the current CCCSD franchise agreement with
VWM is extended for a period of time not to exceed one year, the effective date for the
5 F:\DMS\TCS.DIR\0118669.03
r
DRAFT - ,Tune 12, 1995
delegation of the franchise authority to CCCSWA by the County shall be extended by a
�\V
like period of time. / / C C
2.3
/'f A.V �7
County shall be responsible for allsolid waste management of the unincorporated areas
of the CCCSD-VWM Franchise Area set forth in this agreement beginning March 1,
1996 or such later date resulting from the extension of the CCCSD-VWM franchise.
AR'T'ICLE 3
Obligations of CCCSD �' C��/f{, ✓ /
3_1
CCCSD shall delegate to the County and ther refrain from exercising its franchising
authority in the CCCSD-VWM Franchi Area so long as the County exercises its
franchising�authority within that ar T his delegation and/or agreement to refrain from
further exercise of authority to franchise shall be effective March 1, 1996, or the date
of termination of the current franchise agreement with VWM if extended, which
extension may not exceed one year.
3.2
CCCSD shall be responsible for administration of the current VWM franchise agreement
for the remaining term of said agreement, including any extension thereof not exceeding
one year. In addition, CCCSD shall continue to administer all AB 939 diversion and
recycling activities currently being undertaken pursuant to the VWM franchise agreement
6 F:\DMS\TCS.DIR\0118664.03
DRAFT- June 12, 1995
and otherwise currently being undertaken by CCCSD, or on it behalf within the CCCSD-
VWM Franchise Area for the remaining term of said franchise, including any extension
thereof not to exceed one year.
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
VWM Franchise, as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-VWM Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-VWM Franchise Area shall be subject to the jurisdiction of the CCCSWA�
yr
4.2
County and CCCSD shall; in good faith, participate as members of CCCSWA in the RFP
�process, including the executiof f the franchise agreements providing or solid waste
services within the CCCSWA jurisdictions contemplated by the RFP; provided that
CCCSWA Board of Directors determines that such solid waste franchise agreements are
7 F:\DMS\TCS.DIR\0118664.03
DRAFT- June 12, 1995
acceptable and the CCCSWA Board takes the actions appropriate for entering into such
agreements.
4.3
During the period between the effective date of this agreement and the effective date of
a new franchise agreement covering the CCCSD-VWM Franchise Area entered into
pursuant to the ongoing CCCSWA RFP process, County shall be allowed full opportunity
to participate on staff and Board level, on all decisions with regard to processing the RFP
proposals and with regard to entering into appropriate franchise and disposal agreements.
4.4
✓ Un
CCCSD and County agree that except for the authority delegated herein, to CCCSWA
with respect to the provision of solid waste services, upon the termination of the VWM
t✓ Franchise, including any extension not to exceed one year thereof, County shall be
responsible for administration of all AB 939 activities including diversion and recycling
within the CCCSD-VWM Franchise Area.
ARTICLE 5
Franchise Fees
5.1
CCCSD has received all franchise fee payments pursuant to the VWM Franchise and
shall receive any additional payments under any extension thereof not to exceed one year.
County shall receive no portion of said franchise fees, however, County shall not be
8 f:\DMS\TCS.DIR\0118669.03
DRAFT- June 12, 1995
required to pay any membership fee for joining CCCSWA. The CCCSWA is funded
annually on a tonnage basis. The CCCSWA fees with respect to the CCCSD-VWM
Franchise Area have been paid to date, and will be paid by, or on behalf of, CCCSD
during the remaining term of the VWM franchise agreement and extension thereof
"Oil C't'^�ys
not to exceed one year. Thereafter, l for ' share of
membership fees or costs due CCCSWA for the County areas within the CCCSWA
jurisdictional boundaries.
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical, Inc., US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the .
wasteshed within the CCCSD-VWM Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base in the
existing CCCSD-VWM Franchise Area, notwithstanding the assign men Utransfer of the
9 f:\DMS\TCS.DIR\0118669.03
DRAFT- June 12, 1995
franchise authority to the County. The proportionate share of responsibility for the
customers in the exis g,,,,ftanchise area shall be based on the waste derived historically
Aj
from the area. . i 'r v
6.2
The County as the future franchising authority, either directly or through the CCCSWA,
agrees that the proportionate share of any liability or settlement costs to be borne by the
customer/constituent base of the CCCSD-VWM Franchise Area, and amounts sufficient �
to pay for the net proportionate liability, if any, after deducting all insurance and
contribution proceeds allocable to this wasteshed, shall be provid;as a pass-through in
the r whether the liability for this
" ��'7'" ��Cy� �+
wasteshed be directly,imposed on CCCSD and/or a County in the Acme Lawsuit..?
6 33 `,�� es 'W- "MAO
�5cyP;? .,- -`_��i�J�J 76;:iOy"
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current VWM franchise agreement or any extension
10 f:\DMS\TCS.DIR\0118669.03
RAFT- 12 1 �.
lune 995
thereof not to exceed one year, or-arising from other solid waste administration activities
`j within the CCCSD-VWM Franchise Area during such term, shall be the responsibility
Po Y
of CCCSD with respect to occurrences riorr to the effective (late of termination of the
• / �.�: �Q/,,�c�1 ter•. 4,!�-��-' ./
VWM chise agreement. County shall be responsible for any liability arising
i� 7
�a ,occurrences after said date of terminatign of Pe VWM
ARTICLE 7
t Indemni
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
``
fines as a result of any lihbility arising from events specified in 6.4 ea g
prior to the effective date of the termination of the current VVTM franchise agreement
or any extension thereof not to exceed one year. The liabilities, damages and expenses,
as set forth herein, arising from the Acme Lawsuit shall be excepted from this indemnity
and handled as set forth in paragraphs 6.1 through 6.3, inclusive.
7.2
11 f:\DMS\TCS_DIR\0118669.03
DRAFT-June 12, 1995
County-shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties,)forfeitures, or
fines as a result of any liability alit sing frowevents as specified in 6.4 above aee
after the effective date of the termination of the current VWM Franchise or any extension
i
thereof not to exceed one yea
ARTICLE 8
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of this Agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be requiredto have its two representatives
j� seated as full members of the CCCSWA Board; and (2) CotVty shal e such legal
action as may be required to delegate the County's solid waste collection, transport and
disposal franchise authority for the unincorporated areas within the jurisdictional
boundaries of the CCCSWA (as such areas are further described in the CCCSWA 1994-
1995 RFP documents and map therefrom attached as Exhibit B) to the CCCSWA to
12 F:\DMS\TCS.DIR\0118669.03
DRAFT-June 12, 1995
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall, be enforced as if such
invalid or unenforceable provision had not been contained herein.
96. Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
9.7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
/ termination of this agreement, unless otherwise modified by the parties hereto in writing.
r' eP �r-1 ,, �L/1,,,L'--`t/,',, •lIn..
ly
L el
y4�� '� f_\DMSVCS. -1 R\011 9:03-- -
- ---- DRAFT- June 12, 1995
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall take such legal
action as may be required to delegate the County's solid waste collection, transport and
disposal franchise authority for the unincorporated areas within the jurisdictional
boundaries of the CCCSWA (as such areas are further described in the CCCSWA 1994-
1995 RFP documents and map therefrom attached as Exhibit B) to the CCCSWA to
enable the CCCSWA to enter into regional franchises pursuant to the CCCSWA 1994-
1995 RFP process.
` C ARTICLE 9
J Consent to Assi ng ment
J
9.1
This agreement is subject to CCCSD obtaining consent by PHBS, Inc. to the assignment
Oti�
-of2tth epfranchise agreement from CCCSD to the County, said^consent to be =6ww
A
acceptableetto CCCS W Said consent shall include a provision from PHBS, Inc. that
PHBS, Inc. will not bring suit or seek any other relief from CCCSD concerning any
issues relating to the exclusivity of the franchise agreement and/or the jurisdictional
boundaries of the franchise for all periods prior to the effective date of assignment of the
PHBS franchise agreement. �'-� ,S (,�XpCr,, GL4�� Bd ,Pd[k
etw4rka 4U
12 F:\DMS\TCS_DIR\0118828.03
DRAFT-June 12, 1995
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
TO BE WITHIN THE JURISDICTION OF CCCSWA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection of garbage, and franchising thereof. The terms
and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection,transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512, and as otherwise provided in for
in Public Resources Code §40000, et seq; and
B. WHEREAS, CCCSD entered into a franchise agreement with Valley Disposal
Service, Inc. granting Valley Disposal Service, Inc. the exclusive franchise to collect garbage
within the CCCSD-VWM Franchise Area, defined below, for a term of ten years expiring
February 28, 1996; and
F:\DMS\TCS.DIR\0118669.03
DRAFT-June 12, 1995
C. -WHEREAS, Waste Management Collection and Recycling, Inc., through its
Division, Valley Waste Management (hereinafter "VWM"), is the current franchisee under the
Valley Disposal Service, Inc. franchise agreement (hereinafter "VWM Franchise"); and
D. WHEREAS, the County,pursuant to California Government Code §25827 has the
authority to collect or contract for the collection, or, both, of solid' waste within the
unincorporated areas of the County; and
E. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
F. WHEREAS Central Contra Costa Solid Waste Authority(hereinafter"CCCSWA")
is a joint powers authority and is formed pursuant to Government Code §§6500, et seq.
(currently comprised of member agencies of CCCSD and the City of Walnut Creek; and
G. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
H. WHEREAS, the County desires to have the exclusive authority to franchise or
contract for the collection of solid waste within the CCCSD-VWM Franchise Area; and
I. WHEREAS, the County, pursuant to California Government Code §25827 and
other authority found in §40000 et seq. of the California Public Resources Code, has the
2 F:\DMS\TCS.DIR\0118669.03
DRAFT - June 12, 1995
authority to collect or contract for the collection, or both of solid waste within the
unincorporated areas of the County; and
1. WHEREAS, the County has requested by action of the Board of Supervisors on
to become a member of CCCSWA; and
K. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
L. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of other members
of CCCSWA concerning collection, transfer and disposal of solid waste and certain other AB
939 obligations; and
M. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal member of
CCCSWA, and provided further that the County delegate to CCCSWA its authority to franchise
solid waste collection, transport and disposal within the unincorporated areas within the
jurisdictional boundaries of the Authority as set forth in the CCCSWA 1994-1995 Franchising
RFP.
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
3 F:\DMS\TCS.DIR\0118669.03
DRAFT-June 12, 1995
ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-VWM Franchise Area
f "CCCSD-VWM Franchise Area" means and includes the unincorporated areas of the
County which are currently in the jurisdictional boundaries of CCCSD and which are
subject to the VWM Franchise. The franchise area is further described by the 600 scale
maps as referenced in the franchise agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this Agreement is legally effective
Wowing all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
4 F:\DMS\TCS.DIR\0118669.03
DRAFT- ,lune 12, 1995
1.5 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time. (The
term "garbage" is the defined term used within the VWM Franchise, which term is
defined therein and is relatively synonymous with the use of the term "solid waste"
within this Agreement).
ARTICLE 2
Obligations of County
2.1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this Agreement.
2.2
Concurrent with the execution of this agreement, the County shall file a resolution with
respect to the CCCSD-VWM Franchise Area delegating its franchising authority as of
March 1, 1996 to the CCCSWA. The County shall further execute any other reasonably
necessary documents for the purpose of enabling the CCCSWA to undertake its role as
the regional franchising authority. If the current CCCSD franchise agreement with
VWM is extended for a period of time not to exceed one year, the effective date for the
5 F:\DMS\TCS.DIR\0118664.03
DRAFT-June 12„ 1995
delegation of the franchise authority to CCCSWA by the County shall be extended by a
like period of time.
2
County shall be responsible for all solid waste management of the unincorporated areas
of the CCCSD-VWM Franchise Area set forth in this agreement beginning March 1,
1996 or such later date resulting from the extension of the CCCSD-VWM franchise.
ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall delegate to the County and thereafter refrain from exercising its franchising
authority in the CCCSD-VWM Franchise Area so long as the County exercises its
franchising authority within that area. This delegation and/or agreement to refrain from
further exercise of authority to franchise shall be effective March 1, 1996, or the date
of termination of the current franchise agreement with VWM if extended, which
extension may not exceed one year.
3.2
CCCSD shall be responsible for administration of the current VWM franchise agreement
for the remaining term of said agreement, including any extension thereof not exceeding
one year. In addition, CCCSD shall continue to administer all AB 939 diversion and
recycling activities currently being undertaken pursuant to the VWM franchise agreement
6 F:\DMS\TCS.DIR\0118669.03
DRAFT-June 12, 1995
and otherwise currently being undertaken by CCCSD, or on it behalf within the CCCSD-
VWM Franchise Area for the remaining term of said franchise, including any extension
thereof not to exceed one year.
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
F VWM Franchise, as are available and requested by County.
3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-VWM Franchise Area.
ARTICLE 4
Participation in CCCSWA
41
The CCCSD-VWM Franchise Area shall be subject to the jurisdiction of the CCCSWA.
4.2
County and CCCSD shall; in good faith,participate as members of CCCSWA in the RFP
process, including the execution of the franchise agreements providing for solid waste
services within the CCCSWA jurisdictions contemplated by the RFP; provided that
CCCSWA Board of Directors determines that such solid waste franchise agreements are
7 F:\DMS\TCS.DIR\0118669.03
DRAFT-June 12, 1995
acceptable and the CCCSWA Board takes the actions appropriate for entering into such
agreements.
4.3
During the period between the effective date of this agreement and the effective date of
a new franchise agreement covering the CCCSD-VWM Franchise Area entered into
pursuant to the ongoing CCCSWA RFP process, County shall be allowed full opportunity
to participate on staff and Board level, on all decisions with regard to processing the RFP
proposals and with regard to entering into appropriate franchise and disposal agreements.
4.4
CCCSD and County agree that except for the authority delegated herein to CCCSWA
with respect to the provision of solid waste services, upon the termination of the VWM
Franchise, including any extension not to exceed one year thereof, County shall be
responsible for administration of all AB 939 activities including diversion and recycling
within the CCCSD-VWM Franchise Area.
ARTICLE 5
Franchise Fees
5.11
CCCSD has received all franchise fee payments pursuant to the VWM Franchise and
shall receive any additional payments under any extension thereof not to exceed one year.
County shall receive no portion of said franchise fees, however, County shall not be
g F:\DMS\TCS.DIR\0118669.03
DRAFT-June 12, 1995
required to pay any membership fee for joining CCCSWA. The CCCSWA is funded
annually on a tonnage basis. The CCCSWA fees with respect to the CCCSD-VWM
Franchise Area have been paid to date, and will be paid by, or on behalf of, CCCSD
during the remaining term of the VWM franchise agreement and any extension thereof
not to exceed one year. Thereafter, County shall be responsible for its share of
membership fees or costs due CCCSWA for the County areas within the CCCSWA
jurisdictional boundaries.
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical. Inc.. US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-VWM Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base in the
existing CCCSD-VWM Franchise Area, notwithstanding the assignment/transfer of the
9 F:\DMS\TCS.DIR\0118669.03
DRAFT- June 1.2, 1995
franchise authority to the County. The proportionate share; of responsibility for the
customers in the existing franchise area shall be based on the waste derived historically
from the watershed area.
6.2
The County as the future franchising authority, either directly or through the CCCSWA,
agrees that the proportionate share of any liability or settlement costs to be borne by the
customer/constituent base of the CCCSD-VWM Franchise Area, and amounts sufficient
to pay for the net proportionate liability, if any, after deducting all insurance and
contribution proceeds allocable to this wasteshed, shall be provided as a pass-through in
the rates, or otherwise funded through county action, whether the liability for this
wasteshe d be directly imposed on CCCSD and/or the County, in the Acme Lawsuit.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current VWM franchise agreement or any extension
10 F:\DMS\TCS.DIR\0118669.03
DRAFT-June 12, 1995
thereof not to exceed one year, or arising from other solid waste administration activities
within the CCCSD-VWM Franchise Area during such term, shall be the responsibility
of CCCSD with respect to occurrences prior to the effective date of termination of the
VWM franchise agreement. County shall be responsible for any such liability arising
from occurrences after said date of termination of the VWM Franchise.
ARTICLE 7
In emni
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above occurring
prior to the effective date of the termination of the current VWM franchise agreement
or any extension thereof not to exceed one year. The liabilities, damages and expenses,
as set forth herein, arising from the Acme Lawsuit shall be excepted from this indemnity
and handled as set forth in paragraphs 6.1 through 6.3, inclusive.
7.2
ll F:\DMS\TCS.DIR\0118669.03
DRAFT - June 121, 1995
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees,volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and an), penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above occurring
after the effective date of the termination of the current VWM]Franchise or any extension
thereof not to exceed one year.
ARTICLE 8
Conditions Precedent
The following shall be conditions precedent to the terms of 'this Agreement becoming
legally effective (in addition to the proper execution of this Agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall take such legal
action as may be required to delegate the County's solid waste collection, transport and
disposal franchise authority for the unincorporated areas within the jurisdictional
boundaries of the CCCSWA (as such areas are further described in the CCCSWA 1994-
1995 RFP documents and map therefrom attached as Exhibit B) to the CCCSWA to
12 F:\DMS\TCS.DIR\0118669.03
DRAFT-June 12, 1995
enable-the CCCSWA to enter into regional franchises pursuant to the CCCSWA 1994-
1995 RFP process.
ARTICLE 9
Miscellaneous Provisions
2.1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
2.2 Section headings
The article headings and section headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
9_3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
9.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
9.5 Severability
13 F:\DMS\TCS_DIR\0118669.03
DRAFT - June 12, 1995
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
9.6 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
9_7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
14 F:\DMS\TCS.DIR\0118669.03
t
DRAFT -June 12, 1995
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of the date last written
below.
Dated: 1995 CENTRAL CONTRA COSTA SANITARY DISTRICT
BY:
Roger Dolan, General Manager
Dated: 1995 COUNTY OF CONTRA COSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, General Counsel
Central Contra Costa Sanitary District
General Counsel
County of Contra Costa
15 F:\DMS\TCS.DIR\0118669.03
DRAFT- June 121, 1995
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA. COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
OF THE NORTH CONCORDIPACHECO/CLYDE
SOLID WASTE FRANCHISE AREA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection, transport and disposal of solid waste, and
franchising thereof within certain unincorporated areas within North Concord, Pacheco and
Clyde. The terms and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection, transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512 and as otherwise provided for in
Public Resources Code §§40000, et seq; and
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B. -- WHEREAS, CCCSD entered into a franchise agreement with Boyd Olney,Jr. dba
Pleasant Hill Bayshore Disposal, a sole proprietorship (hereinafter "PHBS")dated April 1, 1986
granting PHBS the exclusive franchise to collect garbage within the CCCSD-PHBS Franchise
Area, defined below, for a term of ten years expiring March 31, 1996 (hereinafter "PHBS
Franchise") attached hereto as Exhibit A; and
C. WHEREAS, Pleasant Hill Bayshore Disposal, Inc. (hereinafter PHBS, Inc.) a
wholly owned subsidiary of Browning-Ferris Industries of California, Inc. is now operating as
the successor in interest to PHBS; and
D. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
E. WHEREAS, Central Contra Costa Solid Waste Authority . (hereinafter
"CCCSWA") is a joint powers authority and is formed pursuant to Government Code §§6500,
et seq. (currently comprised by member agencies of CCCSD and the City of Walnut Creek); and
F. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
G. WHEREAS, the County desires to have the exclusive authority to franchise or
contract for the collection of solid waste within the CCCSD-PHBS Franchise Area; and
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H. -- WHEREAS, the County,pursuant to California Government Code §25827 has the
authority to collect or contract for the collection, or both, of solid waste within the
unincorporated areas of the County; and
I. WHEREAS, the County has requested by action of the Board of Supervisors on
to become a member of CCCSWA; and
J. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
K. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas, as well as constituents of the other
members of CCCSWA concerning collection, transfer and disposal of solid waste and certain
other AB 939 obligations; and
L. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal member of
CCCSWA, and provided further that the County delegate to CCCSWA its authority to franchise
solid waste collection, transport and disposal within the unincorporated areas within the
jurisdictional boundaries of the Authority set forth in the CCCSWA 1994-1995 Franchising RFP.
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
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ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at§40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-PHBS Franchise Area
"CCCSD-PHBS Franchise Area" means and includes the unincorporated areas of the
County which are currently in the jurisdictional boundaries of CCCSD and which are
subject to the PHBS Franchise. The franchise area is further described by the 600 scale
maps as referenced in the franchise agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this Agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
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1.5 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time. (The term
"garbage" is the defined term used within the PHBS Franchise, which term is defined therein
and is relatively synonymous with the use of the term "solid waste" within this Agreement.)
ARTICLE 2
Obligations of County
2.1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this Agreement.
2.2
Except as provided herein below, County shall be responsible for all solid waste
management of the unincorporated areas of the CCCSD-PHBS Franchise Area as of the
effective date of this agreement.
23
Upon the expiration of the current unextended term of the PHBS franchise agreement,
County shall be responsible for administration of all AB 939 activities including diversion
and recycling within the existing CCCSD-PHBS Franchise Area.
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.ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall file a resolution assigning the PHBS Franchise for the remainder of its
term and thereafter refraining from exercising its franchising authority within the
CCCSD-PHBS Franchise Area so long as the County exercises its franchising authority
within that area. This assignment and delegation and/or agreement to refrain from further
exercise of authority to franchise shall be effective on 1995.
3.2
CCCSD shall continue to administer all AB 939 diversion and recycling activities
currently being undertaken pursuant to the PHBS franchise; agreement and otherwise
- currently being undertaken by CCCSD, or on its behalf within the CCCSD-PHBS
Franchise Area until March 31, 1996. CCCSD, notwithstanding the assignment of the
franchise agreement to County, shall continue to provide this service for the balance of
the franchise term, based on programs which have already been initiated, and planned
and budgeted for.
3.3
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
PHBS Franchise as are available and requested by County.
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3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-PHBS Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-PHBS Franchise Area shall not be subject to the jurisdiction of the
CCCSWA and it is not intended that this area be included within the CCCSWA
jurisdictional boundaries, nor is it included in the 1994-1995 CCCSWA collection,
transport and disposal franchise RFP process.
4.2
County and CCCSD shall, in good faith,participate as members of CCCSWA in the RFP
process, including the execution of the franchise agreements providing for solid waste
services within the CCCSWA jurisdiction contemplated by the RFP; provided that the
CCCSWA Board of Directors determines that such solid waste franchise agreements are
acceptable and the CCCSWA Board takes the actions appropriate for entering into such
agreements.
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ARTICLE 5
Franchise Fees
CCCSD has received all franchise fee payments pursuant to the PHBS Franchise for the
remainder of the current term expiring in March 31, 1996. Such fees have already been
allocated by CCCSD to programs for carrying out AB 939 activities within the CCCSD-
PHBS Franchise Area through the remaining term of the PHI3S Franchise. County shall
receive no payment of said previously collected franchise: fees, however, nor shall
County be required to pay any membership fee for participation in CCCSWA for the
remainder of the term of the PHBS Franchise. (Alternative language: County shall
receive $ of the current year's franchise fees under the PHBS Franchise,
based on the Effective Date of the within Agreement.] Nothing in this agreement is
intended to limit County from imposing additional franchise fees or taking any other
action in administration of the PHBS Franchise during its remaining term following the
Effective Date of assignment of said franchise to the County.
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical, Inc., US District Court, Northern District of California, Case No. C91-
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4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-PHBS Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base of the
existing CCCSD-PHBS Franchise Area, notwithstanding the assignment/transfer of the
franchise authority to the County. The proportionate share of responsibility for the
constituents/customers in the CCCSD-PHBS Franchise Area shall be based on the waste
derived historically from that wasteshed.
6.2
The County as the future rate setting entity, agrees that the proportionate share of any
liability or settlement costs to be borne by the customer/constituent base of the CCCSD-
PHBS Franchise Area, and amounts sufficient to pay for the net proportionate liability,
if any, after deducting all insurance and contribution proceeds allocable to this wasteshed,
shall be provided as a pass-through in the rates, or otherwise funded through County
action, whether the liability for this wasteshed be directly imposed on CCCSD and/or the
County in the Acme Lawsuit.
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6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current PHBS franchise agreement or arising from other
solid waste administration activities within the CCCSD-PHBS Franchise Area during such
term, shall be the responsibility of CCCSD with respect to occurrences prior to the
effective date of assignment of the PHBS franchise agreement. County shall be
responsible for any such liability arising from occurrences after said date of assignment
of the PHBS Franchise.
ARTICLE 7
Indemnity
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
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damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above occurring
prior to the effective date of the assignment the current PHBS franchise agreement. The
liabilities, damages and expenses, as set forth herein, arising from the Acme Lawsuit
shall be excepted from this indemnity and handled as set forth in paragraphs 6.1 through
6.3, inclusive.
7.2
County shall indemnify,defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for,injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above occurring
after the effective date of the assignment of the current PHBS Franchise.
ARTICLE 8
Conditions Precedent
8.1
The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of this Agreement by both parties):
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(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall take such legal
action as may be required to delegate the County's solid waste collection, transport and
disposal franchise authority for the unincorporated areas within the jurisdictional
boundaries of the CCCSWA (as such areas are further described in the CCCSWA 1994-
1995 RFP documents and map therefrom attached as Exhibit B) to the CCCSWA to
enable the CCCSWA to enter into regional franchises pursuant to the CCCSWA 1994-
1995 RFP process.
ARTICLE 9
Consent to Assignment
9.1
This agreement is subject to CCCSD obtaining consent by PHBS, Inc. to the assignment
of the franchise agreement from CCCSD to the County,, said consent to be in form
acceptable to CCCSD. Said consent shall include a provision from PHBS, Inc. that
PHBS, Inc. will not bring suit or seek any other relief from CCCSD concerning any
issues relating to the exclusivity of the franchise agreement and/or the jurisdictional
boundaries of the franchise for all periods prior to the effective date of assignment of the
PHBS franchise agreement.
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ARTICLE 10
Miscellaneous Provisions
10.1, Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
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10.2 Paragraph headiness
The article headings and paragraph headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
10.3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
10.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
10.5 Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
10.6 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought: to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
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1
DRAFT - June 12, 1995
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
10.7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of the date last written
below.
Dated: 1995 CENTRAL CONTRA COSTA SANITARY. DISTRICT
BY:
Roger Dolan, General Manager
Dated: 1995 COUNTY OF CONTRA COSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, General Counsel
Central Contra Costa Sanitary District
, General Counsel
County of Contra Costa
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SELLAR,HAZARD,SNYDER,KELLY&FITZGERALD
RUDD SELLAR A PROFESSIONAL LAW CORPORATION DEAN E.BARBIERI
A.J.ENGLEKING(19241981) 1111 CMC DRIVE,SUITE 300 ROBERT B.HUNTER,II
JAMES L.HAZARD POST OFFICE Box 3510 A.DUANE PINKERTON,II
MARTIN T.SNYDER WILLIAM E.MANNING
JOHN KELLY WALNUT CREEK,CALIFORNIA 94598 JILL LATCHAW
JAMES V.FITZGERALD,III TELEPHONE(510)938-1430 THOMAS C.SITES
RICHARD M.MCNEELY FAX(510)256-7508 ANNE D.JACOBBERGER
KENTON L.ALM LORRAINE M.TALLARICO
CHARLES A.WOOD,JR.
MARK CORNELIUS August 2, 1995
RONI S.ANDRESEN
Valentin Alexeeff, Director
Growth Management and Economic Development Agency
651 Pine Street, No. Wing, Second Floor
Martinez, California 94553-1213
Lillian Fujii
Deputy County Counsel
County Counsel Office
651 Pine Street, 9th Floor
Martinez, California 94553
Reference: TRANSITIONAL AGREEMENTS
Our File No.: C3100-010.46
Dear Mr. Alexeeff and Ms. Fujii:
Enclosed are the two separate transitional agreements in final form, including changes requested
by County Counsel's office, along with additional redlined revisions. The strikeout and
underlining in these separate additional copies indicate changes subsequently requested by Roger
Dolan.
The changes for the most part were for purposes of clarification only, with the possible
exception of changes made to section 6.2. These latter changes may be viewed as partially
substantive in nature.
We hope that you can proceed to place these Agreements on your agenda for the Board of
Supervisor's meeting of August 8, 1995. We assume you will have no further comments.
Thank you for your courtesy and cooperation in this matter.
Your truly,
SELLAR, HAZARD, SNYDER,
KELLY & FITZGERALD
THOMAS C. SITES
TCS:clb
Enclosure
REDLINE A
TRANSITIONAL AGREEMENT BETWEEN
COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
TO BE WITHIN THE JURISDICTION OF CCCSWA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection of garbage, and franchising thereof. The terms
and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection,transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512, and as otherwise provided in for
in Public Resources Code §40000, et seq; and
B. WHEREAS, CCCSD entered into a Franchise Agreement with Valley Disposal
Service, Inc, granting Valley Disposal Service, Inc. the exclusive franchise to collect garbage
Within the GGGSD Ini41 F....,.,,hise A. „, defiii d bele .., a portion of CCCSD's Jurisdictional
boundaries. including both incorporated and unincorporated areas for a term of ten years
expiring February 29, 1996; and
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C. WHEREAS, Waste Management Collection and Recycling, Inc., through its
Division, Valley Waste Management (hereinafter "VWM"), is the current franchisee under the
Valley Disposal Service, Inc. Franchise Agreement (hereinafter "VWM Franchise"); and
D. WHEREAS, the County, pursuant to California Government Code §25827, the
California Constitution and Public Resources Code §§40,000g-,L=, has the authority to collect
or contract for the collection, or both, of solid waste within the unincorporated areas of the
County; and
E. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
F. WHEREAS Central Contra Costa Solid Waste Authority(hereinafter"CCCSWA")
is a joint powers authority and is formed pursuant to Government Code §§6500, et seq.
(currently comprised of member agencies of CCCSD and the City of Walnut Creek); and
G. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the First Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; and
H. WHEREAS, the County desires to have clear exclusive authority to franchise or
contract for the collection of solid waste within the unincorporated sections of the current
CCCSD-VWM F_franchise 74area; and
1. 3AqIEREAS, the > ptifstiant to Gaiifefniet Geyefnfnent Gede §25927—, �he
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Resettmes
of: both of solid was
> >
within the unifteefper-aWd area of the Geenty; an'.
H. WHEREAS, the County has requested by action of the Board of Supervisors on
January 24, 1995 and thereafter to become a member of CCCSWA; and
YQ. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate'local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
LK. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
r
jointly for all constituents of the unincorporated areas as well as constituents of other members
of CCCSWA concerning collection, transfer and disposal of solid waste and certain other AB
939 obligations; and
Ml- WHEREAS, CCCSD is willing to delegate cede its solid waste collection
franchise authority for the unincorporated areas to the County, provided that the County becomes
a full and equal member of CCCSWA, and provided further that the County delegates (in the
same manner as the City of Walnut Creek for its City area) to CCCSWA its authority to
franchise solid waste collection, transport and disposal within the unincorporated areas within
the jurisdictional boundaries of the CCCSWA asset forth in the CCCSWA November
1994-1995 Franchising RFP; and
AFM. WHEREAS, County previously indicated its intent to directly assume franchise
administration in unincorporated areas within CCCSD on and after the expiration of the
Franchise Agreement (CCCSD-PRBSVWM Franchise). on February 29. 1996; and
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9�. WHEREAS, CCCSD disputes the County authority to assume franchise
administration in the unincorporated areas within CCCSD.
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
r
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ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-VWM Uninco=rated Franchise Area
"CCCSD-VWM Unincoryorated Franchise Area" means and includes gnly the
unincorporated areas of the County which are currently in the jurisdictional boundaries
of CCCSD and which are subject to the VWM Franchise. The franchise area is further
described by the 600 scale maps as referenced in the Franchise Agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this Agreement is legally effective
following all signatures and approvals required by the parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
5 F:\DMS\TCS.DIR\0118669.06
1.5 Franchise Agreement
"Franchise Agreement" or "VWM Franchise." for purposes herein, means the
"Agreement for Collection, Removal. and Dispersal of Garbage. Zone 2." between Valley
Disposal Services. Inc. and CCCSD dated March 1. 1986.
1.6 RFP, RFP Process
"RFP" and "RFP Process" means the process by which CCCSWA solicited proposals for
solid waste handling and related AB 939 activities pursuant to a document dated
November, 1994. entitled Central Contra Costa Solid Waste Authority Rouest for
Proposals for Integrated Solid Waste Management Services and the receipt and evaluation
process by CCCSWA of responses to the request for proposals.
1_7-5 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 and regulations promulgated thereunder, as amended from time to time,including
Z reen waste and rec_,.yclables. (The term "garbage" is the defined term used within the
4 Franchise Agreement, which term is defined therein at section l(el and is
fe4afively synonymous with the tise ef th term "solid waste" within this Agreement).
6 F:\DMS\TCS.DIR\0118669.06
ARTICLE 2
Obligations of County
2.1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSWA prior to or simultaneously
with the Effective Date of this Agreement.
2.2
Concurrent with the execution of this agreement, the County shall file a resolution with
respect to the CCCSD-VWM Unincor op rated Franchise Area delegating its franchising
authority as of March 1, 1996 to the CCCSWA at least in the same manner as the City
of Walnut Creek as of the date this Agreement is approved by the Board of Supervisors.
The County shall further execute any other reasonably necessary documents for the
purpose of enabling the CCCSWA to undertake its role as the regional franchising
authority as specified in the above noted Walnut Creek delegation. If the current
CCCSD Franchise Agreement with VWM (Franchise Agreement) is extended for a
period of time not to exceed one year, the effective date for the delegation of the
franchise authority to CCCSWA by the County shall be extended by a like period of
time: hereinafter. said term of the franchise and any extension not to exceed one Year
shall be collectively referred to as the "franchise term" or "term of the franchise."
7 F:\DMS\TCS.DIR\0118669.06
2.3
As between the County and CCCSD, the County shall be responsible to the extent
allowed by law and except as delegated to CCCSWA for all solid waste management of
the unincorporated areas of the CCCSD-VWM Unincorpa�.d Franchise Area set forth
in this agreement beginning Maf;eh 1,1996 or- sue ef date resulting f-r-ef" the
eteti,ie of the GGGSD ;aAz?,! f,,.,ehise.at the end of the VWM franchise term.
ARTICLE 3
Obligations of CCCSD
3.1
CCCSD shall delegate to the County and thereafter refrain from exercising its franchising
authority in the CCCSD-VWM Unincorporated Franchise Area so long as the County
exercises its franchising or equivalent authority (such as County's delegation to
CCCSWA) within that area. This delegation and/or agreement to refrain from further
exercise of authority to franchise shall be effective Niffe t 1, 1996, of on the date of
termination of the current franchise agreement with VWM, if extended, w ell exte.
may net exeeed one . provided that the conditions 12ecedent in Article 8. section
8.1 have been satisfied. If said conditions precedent have not been so satisfied, this
aareement and the delegation and/or agreement to refrain from further exercise of
authority to franchise shall not be effective until said conditions_precedent have been met.
8 F:\DMS\TCS.DIR\0118669.06
3.2
CCCSD shall be responsible for administration of the current V3AzA4 €Franchise
$Agreement for the remaining term of said agreement.
fiet e-meeeding one year-. In addition, CCCSD shall continue to administer all AB 939
diversion and recycling activities currently being undertaken pursuant to the VIWN
€Franchise aAAgreement and otherwise currently being undertaken by CCCSD, or on it
behalf within the CCCSD-VWM Unincor rated Franchise Area for the remaining term
of said Franchise Agreement.., '
3
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
VWNI Franchise Agreement, as are available and requested by County.
'3.4
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-VWM Unincorporated Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-VWM Unincorporated Franchise Area shall be subject to the jurisdiction
of the CCCSWA in accordance with the County's aforenoted delegation.
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4.2
County shall, in good faith, participate as g members of CCCSWA in the
RFP process, including the execution (along with the City of Walnut Creek) of the
franchise agreements providing for solid waste services within the CCCSWA jurisdictions
contemplated by the RFP; provided that CCCSWA Board of Directors determines that
such solid waste franchise agreements are acceptable and the CCCSWA Board takes the
actions appropriate for entering into such agreements.
4.3
During the period between the effective date of this agreement and the effective date of
a new franchise agreement covering the CCCSD-VWMreincorporated Franchise Area
entered into pursuant to the ongoing CCCSWA RFP pProcess, County shall be allowed
full opportunity to participate on staff and Board level, on all decisions with regard to
processing the RFP proposals and with regard to entering into appropriate franchise and
disposal agreements.
4.4
CCCSD and County agree that except for the authority delegated herein to CCCSWA
with respect to the provision of solid waste services, upon the termination of the 4
Franchise, Agreement , County
shall (as and to the extent provided and allowed by law) be responsible for administration
of all AB 939 activities including diversion and recycling within the CCCSD-VWM
Unincorporated Franchise Area.
10 F:\DMS\TCS.DIR\0118669.06
ARTICLE 5
Franchise Fees
51
CCCSD has received all franchise fee payments pursuant to the 3A494 Franchise
Agreement and shall receive any additional payments during the term of said franchise.
. County shall receive no portion.of
said franchise fees, however, County shall not be required to pay any membership fee
for joining CCCSWA. The CCCSWA expenses are prorated to Member Agencies is
{
€named annually on a tonnage basis. The CCCSWA fees with respect to the CCCSD-
VWM Unincorporated Franchise Area have been paid to date, and will be paid by, or
on behalf of, CCCSD during the remaining term of the fFranchise eA_„_greement
and any extension thereof not to exceed one year. Thereafter, CCCSD will have no
responsibility for County's share of membership fees or costs due CCCSWA for the
Getinty unincorporated areas within the CCCSWA jurisdictional boundaries.
5.2
If the VWM franchise is extended beyond March 1. 1996, the County may impose, in
its discretion, such additional franchise fees as may be allowed by law. CCCSD agrees
to set rates to provide for such fees and direct VWM to collect such County franchise
fees during the remaining term of said Franchise Agreement.
11 F:\DMS\TCS.DIR\0118669.06
ARTICLE 6
Liability Issues
6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Comoration v. Althin
CD Medical. Inc.. US District Court, Northern District oi" California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste collected and hauled from the
wasteshed within the CCCSD-VWM Unincorporated Franchise Area,.the proportionate
share of any such responsibility for clean-up costs shall be the responsibility of the
constituent base in the existing CCCSD-VWM ninc:orporated Franchise Area,
notwithstanding the assignment/transfer of the franchise authority to the County. The
proportionate share of responsibility for the customers in the existing franchise area shall
be based on the waste derived historically from the wasteshed area. By entering into this
Agreement, the County is not assuming any responsibility or liability for the defense of
the Acme lawsuit for this wasteshed area.
12 F:\DMS\TCS.DIR\0118669.06
2
The County as the future franchising authority, either directly or through the CCCSWA,
agrees that the proportionate share of any liability or settlement costs (including a
provortionate share of net legal costs and expenses. incurred after the termination of the
Franchise Agreement) to shall be borne by the customer/constituent base of the CCCSD-
VWM Unincorporated Franchise Area, and amounts sufficient to pay for the net
proportionate liability, costs and expenses. if any, after deducting all insurance and
contribution proceeds allocable to this wasteshed, shall be provided-and collected to the
fullest extent allowed by law as a pass-through in the collector franchise rates for the
Area, whether the liability and/or settlement costs for this wasteshed be directly imposed
on CCCSD and/or the County in the Acme Lawsuit. If deemed appropriate, the County
may (at its discretion) collect such proceeds as charges or fees imposed at any County
franchised landfill and/or transfer station facility receiving solid waste from the VWM-
CCCSD Unincorporated Franchise Area. wasteshed.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
13 F:\DMS\TCS.DIR\0118669.06
A
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current VIA (Franchise agreement or- an), tffisieft
r arising from other solid waste administration activities
within the CCCSD-VWM Unincorporated Franchise Area as a result of occurrences
during such term, shall be the responsibility of CCCSD with respect to occurrences prior
to the effective date of termination of the VWM Franchise Agreement. As between
County and CCCSD, County shall be responsible for any liability arising as a result of
occurrences after said date of termination of the VWM Franchise and during County
franchise administration. In no event is County, by entering into this Agreement
assuming any legal liability for any period prior to the said Franchise Agreement
termination for the selid wasteshed area, except as specifically set forth above.
ARTICLE 7
Indemni
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 arising at any time
from occurrences prior to the effective date of the termination of the current 3,�'M
14 F:\DMS\TCS.DIR\0118669.06
fFranchise eA_greement. . The liabilities,
damages and expenses, as set forth herein, arising from the Acme Lawsuit shall be
excepted from this indemnity and handled as set forth in paragraphs 6.1 through 6.3,
inclusive.
7.2
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above arising from
occurrences after the effective date of the termination of the current Franchise
Agreement.
. or- any extffision thefeef fief te exeeed one yea
ARTICLE S
Conditions Precedent
8.1
- The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of this Agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall in the same manner
as the City of Walnut Creek take such legal action as may be required to delegate the .
15 f:\DMS\TCS.DIR\0118669.06
County's solid waste collection, transport and disposal franchise authority for the
unincorporated areas within the jurisdictional boundaries of-the CCCSWA (as such areas
are further described in the CCCSWA 1994-1995 RFP documents and the map attached
hereto as Exhibit A)_ to the CCCSWA to enable the CCCSWA to enter into regional
franchises pursuant to the CCCSWA 1994-1995 RFP process.
ARTICLE 9
Miscellaneous Provisions
9.1 Entire Agreement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
9.2 Section headines
r
The article headings and section headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
9.3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
9 44 Amendment
This agreement may not be modified or amended in an,Y respect except by a writing
signed by the parties hereto.
16 F:\DMS\TCS.DIR\0118669.06
Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
9_6 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
9_7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
9.8 Future Franchising Authority
Except for the up-to-one-year extension period allowed by this agreement for CCCSD
administration of the current VWM franchise, it has been and remains the County's
position that on and after the expiration of the GGGSD P! Franchise Agreement
(February 29. 1996), CCCSD has no franchise authority for the unincorporated areas
covered by this agreement to the extent the County thereafter franchises and/or regulates
(e.g., delegates, etc.) for said areas. Nothing herein shall be construed as a waiver or
modification of past County actions or its position in this regard, except for the said up-
17 F:\DMS\TCS.DIR\0118669.06
to-one-year extension period. It is understood and recognized that CCCSD does not
agree with this County position.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of the date last written
below.
Dated: 1995 CENTRAL CONTRA COSTA SANITARY DISTRICT
BY:
Roger Dolan, General Manager
Dated: , 1995 COUNTY OF CONTRA COSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, General Counsel
Central Contra Costa Sanitary District
General Counsel
County of Contra Costa
18 F:\DMS\TCS.D1R\011a669.06
c-1
REDLINE B
TRANSITIONAL AGREEMENT BETWEEN
- COUNTY OF CONTRA COSTA
AND
CENTRAL CONTRA COSTA
SANITARY DISTRICT
FOR THE COLLECTION OF SOLID WASTE
WITHIN CERTAIN UNINCORPORATED AREAS
OF THE NORTH CONCORD/PACHECO/CLYDE
SOLID WASTE FRANCHISE AREA
The following is an agreement between Central Contra Costa Sanitary District
(hereinafter "CCCSD") and the County of Contra Costa (hereinafter "County") providing for
the transfer of the authority to manage collection, transport and disposal of solid waste, and
franchising thereof within certain unincorporated areas within North Concord, Pacheco and
Clyde. The terms and conditions of such agreement are set forth below.
RECITALS
A. WHEREAS, CCCSD, pursuant to its Enabling Act, has authority to provide for
collection, transportation and disposal of solid waste within its jurisdictional boundaries, as set
forth in California Health and Safety Code §§6406 and 6512 and as otherwise provided for in
Public Resources Code §§40000, et seq; and
B. WHEREAS, CCCSD entered into a franchise agreement with Boyd Olney, Jr. dba
Pleasant Hill Bayshore Disposal, a sole proprietorship (hereinafter "PHBS") dated April 1, 1986
granting PHBS the exclusive franchise to collect garbage within the CCCSD-PHBS Franchise
Area, defined below, for a term of ten years expiring March 31, 1996 (hereinafter "PHBS
Franchise") attached hereto as Exhibit A; and
C. WHEREAS, Pleasant Hill Bayshore Disposal, Inc. (hereinafter PHBS, Inc.) a
wholly owned subsidiary of Browning-Ferris Industries of California, Inc. is now operating as
the successor in interest to PHBS; and
D. WHEREAS, the City of Walnut Creek, pursuant to Public Resources Code
§49,300 and also as generally provided for in Public Resources §§40000 et seq., may collect or
contract for the collection of solid waste within its city limits; and
E. WHEREAS, Central Contra Costa Solid Waste Authority (hereinafter
"CCCSWA") is a joint powers authority and is formed pursuant to Government Code §§6500,
et seq. (currently comprised by member agencies of CCCSD and the City of Walnut Creek); and
F. WHEREAS, a joint powers authority may exercise jointly powers commonly held
by its respective members, and therefore CCCSWA, through the First Amended Joint Powers
Agreement, shall have the authority to contract for the collection, transportation and disposal of
solid waste for the residents within its jurisdictional boundaries; ,and
G. WHEREAS, the County desires to have t re clear exclusive authority to franchise
or contract for the collection of solid waste within the CCCSD-PHBS Franchise Area; and
H. WHEREAS, the County, pursuant to California Government Code §25827, the
California Constitution and Public Resources Code §§40,000 et s(�q. has the authority to collect
or contract for the collection, or both, of solid waste within the unincorporated areas of the
County; and
2 F:\DMS\TCS.DIR\0118828.06
I. WHEREAS, the County has requested by actions of the Board of Supervisors on
January 24 1995 and thereafter to become a member of CCCSWA; and
J. WHEREAS, CCCSD and the County agree that franchising of solid waste
collection on a regional basis within the CCCSWA jurisdictional boundaries may serve to
consolidate local and regional coordination and planning of such collection and disposal
activities, and thus benefiting the public jointly served by the County and CCCSD; and
K. WHEREAS, CCCSD seeks to have CCCSWA undertake the franchising activities
jointly for all constituents of the unincorporated areas as well as constituents of the other
members of CCCSWA concerning collection, transfer and disposal of solid waste and certain
other AB 939 obligations; and
L. WHEREAS, CCCSD is willing to delegate its solid waste collection franchise
authority to the County, provided that the County becomes a full and equal member of
CCCSWA, and provided further that the County delegates (in the same manner as the City of
Walnut creek for its City area) to CCCSWA its authority to franchise solid waste collection,
transport and disposal within the unincorporated areas within the jurisdictional boundaries of tite
Authefity CCCSWA set forth in the CCCSWA November, 1994-139.5 Franchising RFP,
exclusive of the unincorporated areas within the CCCSD-PHBS Franchise Area; and
M. WHEREAS, County previously indicated its intent to directly assume franchise
administration in unincorporated areas within CCCSD on and after the expiration of the CCCSD-
PH13S Franchise Agreement; and
N. WHEREAS, CCCSD disputes County authority to assume franchise administration
in the unincorporated areas within CCCSD.
3 F:\DMS\TCS.DIR\0118828.06
NOW, THEREFORE, in consideration of the mutual agreements of the parties hereto,
CCCSD and the County mutually agree as follows:
ARTICLE 1
Definitions
1.1 AB 939
"AB 939" means the California Waste Management Act of 1989 (found at §40000 et seq.
of the California Public Resources Code), as it may be amended from time to time.
1.2 CCCSD-PHBS Franchise Area
"CCCSD-PHBS Franchise Area" means and includes the unincorporated areas of the
County which are currently in the jurisdictional boundaries of CCCSD and which are
subject to the PHBS Franchise Agreement. The franchise area is further described by
the 600 scale maps as referenced in the franchise agreement.
1.3 Effective Date
"Effective Date" means the first date upon which this Agreement is legally effective
following all signatures and approvals required by the: parties or by law and the
compliance of the parties with the conditions precedent set forth herein.
1.4 CCCSWA Joint Exercise of Powers Agreement
"CCCSWA Joint Exercise of Powers Agreement" is the agreement entered into originally
by CCCSD, City of Walnut Creek and City of San Ramon, the effective date of which
agreement is August 30, 1990, said agreement including any amendments thereto.
Current membership includes CCCSD and City of Walnut Creek.
4 F.\DMS\TCS.DIR\0118828.06
1 5 PHBS Franchise Agreement
"PHBS Franchise Agreement." for purposes herein means the "Agreement for
Collection, Removal and Disposal of Garbage Zone 3." dated April 1 1986 between
PHBS and CCCSD.
1.6 RFP: RFP Process
"RFP" and "RFP Process" means the process by which CCCSWA solicited proposals for
solid waste handling and related AB 939 activities pursuant to a document dated
November, 1994, entitled Central Contra Costa Solid Waste Authority Rgguest for
Proposals for Integrated Solid Waste Management Services and the receipt and evaluation
process by CCCSWA of responses to the request for proposals.
1.57 Solid Waste
"Solid Waste" means solid waste as defined in the California Public Resources Code
§40191 anTiegulations promulgated thereunder, as amended from time to time,including
green waste and recyclables. (The term "garbage" is the defined term used within the
PHBS Franchise Agreement, which term is defined therein at section 1!e) and is
ray synonymous with the ewe term "solid waste" within this Agreement.)
5 F:\DMS\TCS.DIR\0118828.06
ARTICLE 2
Obligations of County
2.1
County agrees to apply for membership in, and become a full and equal signatory
member of CCCSWA under the same terms and conditions as applicable to existing
members. The County shall become a member of CCCSW'A prior to or simultaneously
with the Effective Date of this Agreement.
22
Except as provided herein below, as between the County and CCCSD, the County shall
be responsible to the full extent allowed by law for all solid waste management of the
unincorporated areas of the CCCSD-PHBS Franchise Area as of the effective date of this
agreement. Count shall accept the assignment of the PHItS Franchise Agreement from
CCCSD by the date sMified in section 3.1.
2.3
Upon the expiration of the current unextended term of the TIBBS€Franchise tiAgreement,
as between the County and CCCSD, the County shall be responsible to the full extent
allowed by law for administration of all AB 939 activities including diversion and
recycling within the existing CCCSD-PHBS Franchise Area. As of the effective date of
this agreement, the Coun!,y shall assume any and all responsibilities for AB 939 activities,
except for those specifically reserved in section 3.2 to CCCSD for the remainder of the
PHBS Franchise Agreement term.
6 F:\DMS\TCS.DIR\0118828.06
ARTICLE 3
obligations of CCCSD
3.1
CCCSD shall file a resolution assigning the PHBS Franchise Agreement for the
remainder of its term and thereafter refraining from exercising its franchising authority
within the CCCSD-PHBS Franchise Area so long as the County exercises its franchising
authority within that area. This assignment and delegation and/or agreement to refrain
from further exercise of authority to franchise shall be effective on October 1
1995: provided that the conditions precedent in Article 8. section 8.1 have been
satisfied. If said conditions precedent have not been so satisfied, this agreement and the
delegation and/or agreement to refrain from further exercise of authority to franchise
shall not be effective until said conditions precedent have been met.
3.2
CCCSD, shall continue to administer aH those AB 939 diversion and recycling activities
currently being undertaken pursuant to the PHBS 4Franchise eA_greement and otherwise
currently being undertaken by CCCSD, or on its behalf within the CCCSD-PHBS
Franchise Area until March 31, 1996. CCCSD, notwithstanding the assignment of the
franchise agreement to County, shall continue to provide this service for the balance of
the franchise term, based a for programs which have already been initiated,wed
and budgeted lef such as the home composting workshops and current recycling
promotion.
7 F:\DMS\TCS.DIR\0118828.06
CCCSD shall, upon execution of this agreement, or as soon thereafter as practicable,
provide County with copies of all material documents concerning administration of the
PHBS Franchise Agreement as are available and requested by County.
14
CCCSD shall cooperate with County to provide County with guidance as to the current
rate setting structure and other historical information relevant to franchising within the
CCCSD-PHBS Franchise Area.
ARTICLE 4
Participation in CCCSWA
4.1
The CCCSD-PHBS Franchise Area shall not be subject to the jurisdiction of the
CCCSWA and it is not intended that this area be included within the CCCSWA
jurisdictional boundaries, nor is it included in the 1994-1995 CCCSWA collection,
transport and disposal franchise RFP process.
4.2
County afid GGGS , shall, in good faith, participate as a members of CCCSWA in the
RFP process, including the execution (along with the City of Walnut Creek) of the
franchise agreements providing for solid waste services within the CCCSWA jurisdiction
contemplated by the RFP; provided that the CCCSWA Board of Directors determines
that such solid waste franchise agreements are acceptable and the CCCSWA Board takes
the actions appropriate for entering into such agreements.
8 F:\DMS\TCS.DIR\0118828.06
ARTICLE 5
Franchise Fees
CCCSD has received all franchise fee payments pursuant to the PHBS Franchise
Agreement for the remainder of the current term expiring in March 31,; 1996,which
franchise'agreement shall not be extended. Such fees have already been allocated by
CCCSD to programs for carrying out AB 939 activities within the CCCSD-PHBS
Franchise Area through the remaining term of the PHBS Franchise Agreement. County
shall receive no payment of said previously collected franchise fees, however, nor shall
County be required to pay any membership fee for participation in CCCSWA for the
remainder of the term of the PHBS Franchise Agreement. Nothing in this agreement is
intended to limit County from imposing additional franchise fees or taking any other
action in administration of the PHBS Franchise Agreement during its remaining term
following the Effective Date of assignment of said franchise to the County.
ARTICLE 6
LiabilityTssues
. 6.1
CCCSD and County are parties in a lawsuit known as Acme Fill Corporation v. Althin
CD Medical, Inc.. US District Court, Northern District of California, Case No. C91-
4268 SBA (hereinafter "Acme Lawsuit"), in which case plaintiff alleges that the County
and CCCSD are both responsible for payment of closure and post closure costs of the
Acme Landfill, pursuant to federal CERCLA law. To the extent that liability is imposed
9 F:\DMS\TCS.DIR\0118828.06
or settlement is reached for apportionment of closure and post closure costs of the Acme
Landfill with respect to the Municipal Solid Waste colleted and hauled from the
wasteshed within the CCCSD-PHBS Franchise Area, the proportionate share of any such
responsibility for clean-up costs shall be the responsibility of the constituent base of the
existing CCCSD=PHBS Franchise Area, notwithstanding the assignment/transfer of the
franchise authority to the County. The proportionate share of responsibility for the
constituents/customers in the CCCSD-PHBS Franchise Area shall be based on the waste
derived historically from the wasteshed area. By entering; this Agreement, the County
is not assuming any responsibility or liability for the defense of the Acme lawsuit for this
wasteshed area.
62 .
The County as the future rate setting entity, agrees that the proportionate share of any
liability or settlement costs (including a proportionate share of net legal cosjs and'
expenses, incurred after the termination of the Franchise Agreement) +e shall be borne
by the customer/constituent base of the CCCSD-PHBS Franchise Area, and amounts
sufficient to pay for the net proportionate liability, costs and expenses if any, after
deducting all insurance and contribution proceeds allocable to this wasteshed, shall be
provided and collected to the fullest extent allowed by law as a pass-through in the
collector franchise rates for the area, whether the liability and/or settlement costs for this
wasteshed be directly imposed on CCCSD and/or the County in the Acme Lawsuit. If
deemed appropriate, the County may (at its discretion) collect such proceeds as charges
10 F:\DNS\TCS.DIR\0118828.06
or fees imposed at any County franchised landfill and/or transfer station facility receiving
solid waste from the PHBS F€ranchise aArea d.
6.3
Nothing contained herein with respect to the Acme Lawsuit shall be read to be an
admission of liability, endorsement of allocation methodology, or such other admission
or concession concerning said litigation. The County and CCCSD each, respectively
deny all liability with respect to the Acme Lawsuit and deny any and all responsibility
for any closure, post closure or response costs related to the Acme Landfill.
6.4
Except as set forth above with respect to the Acme Lawsuit, any and all liability arising
from the administration of the current PHBS €Franchise aA_greement or arising from
other solid waste administration activities within the CCCSD-PHBS Franchise Area as
a result of occurrences during such term, shall be the responsibility of CCCSD with
respect to occurrences prior to the effective date of assignment of the PHBS -€Franchise
aA,._greement. as set forth in section 3.1. As between County and CCCSD, County shall
be responsible for any liability arising as a result of occurrences after said date of
assignment of the PHBS Franchise Agreement and during County franchise
administration. In no event is County, by entering this Agreement, assuming any legal
liability for the said wasteshed area for any period prior to the said effective date of
assignment of the PHBS Pfranchise Agreement except as specifically set forth above.
11 F:\DMS\TCS.DIR\D118828.D6
ARTICLE 7
Indemnit
7.1
CCCSD shall indemnify, defend and hold harmless County, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 arising at any
time from occurrences prior to the effective date of the assignment the current PHBS
franchise agreement. The liabilities, damages and expenses, as set forth herein, arising
from the Acme Lawsuit shall be excepted from this indemnity and handled as set forth
in paragraphs 6.1 through 6.3, inclusive.
7.2
County shall indemnify, defend and hold harmless CCCSD, its Board members, officers,
employees, volunteers and agents from and against all claims, demands, causes of action,
liabilities, damages and expenses (including, for injury to or death of any person and
damage to property, or contribution or indemnity claimed by third parties) and including
attorney's fees, expert and consulting fees and costs and any .penalties, forfeitures, or
fines as a result of any liability arising from events as specified in 6.4 above arising from
occurrences after the effective date of the assignment of the current PHBS Franchise
Agreement.
12 F:\DMS\7CS.DJR\0118828.06
ARTICLE 8
Conditions Precedent
$1
The following shall be conditions precedent to the terms of this Agreement becoming
legally effective (in addition to the proper execution of this.,Agreement by both parties):
(1) County shall, by appropriate action of the Board of Supervisors, join CCCSWA as
a member and take such other actions as may be required to have its two representatives
seated as full members of the CCCSWA Board; and (2) County shall in the same manner
as the City of Walnut Creek take such legal action as .may be required to delegate the
County's solid waste collection, transport and disposal franchise authority for the
unincorporated areas within the jurisdictional boundaries of the CCCSWA (as such areas
are further described in the CCCSWA 1994-1995 RFP documents and the map attached
hereto as Exhibit B) to the CCCSWA to enable the CCCSWA to enter into regional
franchises pursuant to the CCCSWA 1994-1995 RFP process.
ARTICLE 9
Consent to Assir nment
9.1
This agreement is subject to CCCSD obtaining consent by PHBS, Inc. to the assignment
of the franchise agreement from CCCSD to the County, said written consent to be
acceptable to and approved by CCCSD and the County. Said consent shall include a
provision from PHBS, Inc. that PHBS, Inc. will not bring suit or seek any other relief
from CCCSD concerning any issues relating to the exclusivity of the franchise agreement
13 f:\DMS\TCS.DIR\0118828.06
and/or the jurisdictional boundaries of the franchise for all periods prior to the effective
date of assignment of the PHES franchise agreement. If this consent is not obtained and
approved by CCCSD and the County by the expiration (March 31, 1996) of the CCCSD-
PHBS Franchise Agreement, nothing herein shall be construed to prevent the County's
exercising of whatever franchising authority it has in the Franchise Area..
ARTICLE 10
Miscellaneous Provisions
10.1 Entire Aereement
This agreement represents a full and entire agreement between the parties with respect
to the matters covered herein and supersedes all prior negotiations and agreements, either
written or oral.
10.2 Paragraph headings
The article headings and paragraph headings in this agreement are for convenience of
reference only and are not intended to be used in the construction of this agreement nor
to alter or affect any of its provisions.
10.3 Interpretation
This agreement shall be interpreted and construed reasonably and neither for nor against
either party, regardless of the degree to which either party participated in its drafting.
10.4 Amendment
This agreement may not be modified or amended in any respect except by a writing
signed by the parties hereto.
14 F:\DMS\TCS.DIR\0118828.06
Severability
If any non-material provision of this agreement is for any reason deemed to be invalid,
and unenforceable, the invalidity or unenforceability of such provision shall not affect
any of the remaining provisions of this agreement which shall be enforced as if such
invalid or unenforceable provision had not been contained herein.
15 F;\DMS\TCS.DIR\0118828.06
10-6 Attorney's Fees
The prevailing party in any arbitration or lawsuit brought to interpret or enforce the
terms of the this agreement, or any claims whether in contract, tort or otherwise arising
directly or indirectly out of this agreement or its performance, shall be entitled to recover
its reasonable costs and attorney's fees from the other party, and the court or arbitrator
shall award any such attorney's fees as an element of cost.
10.7 Surviving Provision
Not withstanding any provision herein to the contrary, Articles 6 and 7 shall survive any
termination of this agreement, unless otherwise modified by the parties hereto in writing.
10.9 Future Franchising Authority
Except for the up-to-one-year extension period allowed by a separate County-CCCSD
Transitional Agreement for CCCSD administration of the current Waste Management
Collection and Recycling, Inc. (Valley Waste Management) franchise, it has been and
remains the County's position that on and after the expiration of the CCCSD-PHBS
Franchise Agreement, CCCSD has no franchise authority for the unincorporated areas
covered by this agreement to the extent the County thereafter franchises and/or regulates
(e.g., delegates, etc.) for said areas. Nothing herein shall be construed as a waiver or
modification of past County actions or its position in this ;regard, except for the said up-
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to-one-year extension period. It is understood and recognized that CCCSD does not
agree with this County position.
The parties each respectively agree to the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in
duplicate by the respective duly authorized officers and representatives as of
the date last written below. n
Dated: 1995 CENTRAL CONTRA COSTA SANITARY DISTRICT
BY:
Roger Dolan, General Manager
Dated: 1995 COUNTY OF CONTRA COSTA
BY:
APPROVED AS TO FORM:
Kenton L. Alm, General Counsel
Central Contra Costa Sanitary District
General Counsel
County of Contra Costa
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